In March, the U.S. District Court of the Western District of Washington ruled against a school district in favor of a student with intellectual disabilities, who was awarded $500,000 by a jury based on the district’s failure to address repeated acts of peer sexual harassment against the student. In the lawsuit, the plaintiff alleged that the school district violated the student’s due process and equal protection rights, violated Title IX, violated the Washington Law against Discrimination, and was negligent. The jury returned a verdict in favor of the plaintiff on her due process, equal protection, and negligence claims, and the court denied the district’s motion to set the verdict aside. 

The case, Berg v. Bethel School District, is instructive on a range of issues relating to sexual misconduct involving students with disabilities, including a school district’s duty to protect a student with disabilities from sexual harassment even when the student does not explicitly object to the misconduct 

Continue Reading Can a School District Be Liable for Student-on-Student Sexual Harassment Even When a Student Does Not Explicitly Object? Federal District Court Says Yes

In December, the Biden Administration announced that it plans to release new Title IX draft rules to the public by April 2022. (See our previous post on the announcement here.) Last week, the Department of Education Office for Civil Rights (OCR) provided an update on the latest step in this process.  

On Friday, OCR reported on its blog that the Department of Education sent the draft of the proposed Title IX amendments to the Office of Information and Regulatory Affairs (OIRA). At this stage, the draft amendments—known as a Notice of Proposed Rulemaking (NPRM)—are not yet available for public viewing. An internal review will be conducted by OIRA and the Department of Justice to analyze the costs and benefits of the proposed rules. Following the internal review process, the Department of Education will publish the draft rules in the Federal Register, where members of the public will have the opportunity to submit their comments on the proposed regulations. While the FAQs on the OIRA review process state that the process may take up to 90 days, the Department of Education may still be on track to issue the proposed amendments in April depending on how long the OIRA review takes.  

Continue Reading OCR Provides Update on Rulemaking Process for Title IX

In a highly anticipated decision earlier this month, OCR reaffirmed the broad discretion that religious institutions may have under the religious exemption in Title IX.  

Title IX provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” However, Title IX allows religious educational institutions, including those accepting federal funds, to claim a religious exemption to the extent that an application of a Title IX provision is inconsistent with the tenets of the religious organization that “controls” the institution.  

Continue Reading OCR Dismisses LGBTQ+ Complaint Based on Title IX Religious Exemption

In January, the U.S. Court of Appeals for the Third Circuit affirmed that Title IX provides adequate notice to federal funding recipients of their responsibility to respond to known sexual harassment if they have control over the context and harasser, even when the harasser is a third party 

The Court of Appeals ruled that Millersville University, a public institution in Pennsylvania, could be liable for deliberate indifference to known sexual harassment by a non-student guest. The case arose from the murder of a female student in her dorm room by her non-student boyfriend. The non-student’s months-long pattern of abusive behavior leading up to the murder was well-known and reported to individuals on campus who had some authority to take corrective action, including a campus police officer who failed to file an incident report involving the non-student until after the student’s murder. While the Deputy and Area Title IX Coordinators received actual notice, they did not forward any of the reports to the Title IX Coordinator as required by their policy.  

Continue Reading Third Circuit Finds that Deliberate Indifference to Third-Party Conduct May Lead to Title IX Liability

As a presidential candidate, now-President Biden promised that he would put a “quick end” to the Trump administration’s 2020 Title IX rules. Aiming to keep that promise, the Department of Education announced  its intention to release proposed amendments to Title IX’s implementing regulations by April 2022, a month earlier than initially expected. While the April 2022 date is not binding, it signals the Biden administration’s intent to start the lengthy rulemaking process as soon as possible.  
Continue Reading Biden Administration to Propose New Title IX Rules by April 2022

The U.S. Department of Education’s Office for Civil Rights, or OCR, recently issued a Notice of Interpretation stating that Title IX of the Education Amendments of 1972 prohibits discrimination against LGBTQ+ students and employees in public schools, colleges, universities, and other recipients of Department funds. This would not necessarily be big news, because the United States Supreme Court recently recognized similar rights for employees under Title IX’s sister statute, Title VII of the Civil Rights Act of 1964. But it is news for schools. It’s the next chapter in OCR’s ever-changing position on this important question (from vigorous enforcement under the Obama administration to the Trump administration’s flip-flop in 2017 and subsequent clarification after Bostock in 2020). And although the information ED released answered some questions, many important questions remain.
Continue Reading Unanswered Questions on OCR’s About-Face on Transgender Rights

Yesterday, the United States Supreme Court heard oral argument in its first case ever to address the discipline of students for speech occurring off-campus, on their own time, and online. The argument focused on what test should apply, the fate of political and religious speech under the proposed standards, whether schools can impose additional limits through extracurricular and athletic codes of conduct, and if the student in the specific case was too harshly disciplined for the speech in question. 

A majority of the Court’s Justices appeared prepared to overturn the lower court decision, which had held that the longstanding “substantial disruption” test does not apply to off-campus student speech. A majority also struggled with whether—and, if so, how—to refine or replace that test with something clearer. Indeed, most seemed to lean toward deciding the case narrowly, finding that even if the substantial disruption test applies, the school did not meet it in this case. Such a decision would fail to provide school officials long-sought-after guidance on the bounds of their jurisdiction to address off-campus speech. Even though, as one of the attorneys noted, the “Court has not had a Tinker decision since Tinker,” there is a real chance that schools may have to wait decades more to get guidance from the highest court on this significant issue. 
Continue Reading United States Supreme Court Hears Argument in Historic Student Speech Case 

We have been speculating for quite some time now about what the U.S. Supreme Court will do with Title IX after its decision last term in Bostock v. Clayton County, Georgia. The landmark Bostock decision held that Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of sexual orientation and transgender status in the workplace. Although the Justices discussed Title IX in the oral argument and decision in Bostock, because of differences between employment laws and Title IX, many questions remained unanswered. A school district’s recent request that the Supreme Court hear a case involving transgender student access to bathroom facilities offers the high court a chance to answer many of the lingering, important questions. The case is one of the longest-running LGBTQ school cases in the country; the Supreme Court has even heard it once before. Here’s what you need to know now about the case and the request to the Supreme Court.

Continue Reading Supreme Court Asked to Give Schools Much-Needed Guidance on Title IX and Transgender Rights

President Joseph Biden has been in office for over three weeks, bringing more changes in the realm of Title IX. Where are we now, what do we need to know and do, and what is expected to come? This is the second part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration, and what they mean for school leaders under Title IX. (Find part one here).

Our topic today is diversity, equity, and inclusion in schools, colleges, and universities. This is an important topic under Title IX because DEI initiatives include those supporting LGBTQ students and employees and other sex-based topics. Although the Biden administration has rolled back the most controversial of the Trump team’s orders with respect to DEI initiatives, schools, colleges, and universities should still be cognizant of the potential for lawsuits from private parties who disagree with DEI initiatives. Those challenges should not prevent schools, colleges, and universities from continuing important DEI work, but educational institutions should work closely with legal counsel to craft such programs in the most legally defensible ways.

Part 2: DEI Initiatives in Schools, Colleges, and Universities under Biden

In late 2020, then-President Donald Trump signed an Executive Order attacking what the order described as “anti-American race and sex stereotyping and scapegoating” by federal contractors and recipients of federal grant funds, including schools, colleges, and universities. The order addressed racial and sex sensitivity trainings in employment and in schools. What was the action and what changes have we seen with respect to this issue in the first few weeks of the Biden administration?

Continue Reading Last Gasps and Opening Salvos: The End and Beginning of a New Era in Title IX, Part 2

At the beginning of last week, Donald Trump was President of the United States and we were being flooded with last minute Title IX and civil rights guidance from the outgoing Department of Education. As we near the end of the week, Joseph Biden is President and we are digesting a long list of senior political appointees for the department and executive orders signaling a reversal on approaches to racial and LGBTQ equality within federal agencies. Where we are now, what do you need to know and do, and what is expected to come? This is the first part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration and what they mean for school leaders under Title IX.

Part 1: Title IX and Gender Identity and Sexual Orientation After Bostock

Anyone keeping watch on the Department of Education’s actions in the past few weeks knows that the outgoing administration did not intend to go quietly into the night. Instead, we saw a flurry of guidance and other documents issued up to the very final moments of the administration in the realms of civil rights and Title IX. An important example was a  January 8, 2021 memorandum from the Department’s Office of General Counsel stating that LGBTQ students are not covered by Title IX.

Continue Reading Last Gasps and Opening Salvos: The End and Beginning of a New Era in Title IX, Part 1