Despite efforts by schools and advocacy organizations, state attorneys general, and members of Congress and the Senate, the Department of Education’s proposed Title IX rules reportedly have cleared Office of Management and Budget (OMB) review and sources say that the final rules are coming—soon. Although the timing of the release during the coronavirus disease 2019 (COVID-19) crisis is far from ideal, employees with Title IX responsibilities may be able to use some of the well-documented time lost in productivity on normal day-to-day tasks during this crisis to prepare for the coming changes. In addition to signing up for our Franczek blogs and alerts so that you can receive our insights on the rules if and when they are released, we recommend that schools, colleges, and universities do the following four tasks now to prepare for the impending regulatory changes.
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Title IX Considerations During COVID-19 School Closures
While Illinois schools—and schools across the country—remain closed due to concerns about the spread of COVID-19, keep in mind that schools currently are not relieved from their obligations under Title IX or other civil rights laws. Because the Department of Education has not yet released any guidance regarding Title IX obligations during this time (and the Coronavirus Aid, Relief, and Economic Security Act passed by the Senate does not give Department of Education Secretary Betsy DeVos the ability to waive civil rights laws), we recommend continuing to follow your school’s applicable Title IX policies and procedures. Issues related to COVID-19 continue to rapidly evolve on both the federal and state level. Just this week, various advocacy and education groups—over 200 of them—urged federal officials to pause finalization of the proposed Title IX rules, citing concerns that releasing the new rules would only exacerbate challenges schools are already facing as they attempt to meet student needs remotely. As these issues continue to evolve, including the recent stay at home order here in Illinois, we will continue to monitor the impact of any developments closely. In the meantime, keep the following in mind for any investigations that were pending at the time of your school closure, or for any new reports that come in that may trigger your school’s obligations under Title IX.
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Garbage In, Garbage Out: ED Department Takes Aim at K-12 Schools “Passing the Trash”
The confusing messages coming from the U.S. Department of Education continue. We still await more information on if/when a final version of the pending Title IX regulations will be released. Those regulations have been almost universally described as rolling back Federal regulatory oversight in the Title IX realm for schools, colleges, and universities. Yet today, Secretary of Education Betsy DeVos announced a “New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools” that suggests elementary and secondary schools can expect an uptick in enforcement in this area starting today. The specific target: the purported uptick in elementary and secondary schools of the phenomenon known as “passing the trash.” This is where teachers who have engaged in sexual misconduct with a student or other minor are fired but allowed to find employment at another school. What can you expect from OCR in light of this initiative and what should K-12 schools do now to prepare?
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The Next Mile in Gender Litigation: Transgender Participation in Women’s Sports
With Guest Authors Jennifer Smith and Kendra Yoch
Litigants challenging the opening of women’s restrooms and locker rooms in schools to transgender females have roundly been defeated. While the Supreme Court could always change the trend, cases like Whitaker v. Kenosha Unified School District and Grimm v. Gloucester County School Board show that it is increasingly settled that students and employees must have access to facilities consistent with their gender identities. Activist litigants, however, such as Alliance Defending Freedom (ADF), have turned their attention to a different issue: transgender athletes’ participation in women’s sports.
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Should You OPEN Your Institution’s Doors to OCR: New Civil Rights Office Raises Questions
The U.S. Department of Education has created a “new, proactive” civil rights compliance center within its Office for Civil Rights. The Department describes the Outreach, Prevention, Education and Non-discrimination, or OPEN, Center as an effort to “support[ ] school districts, colleges, and those closest to students” by providing educational institutions “technical assistance to help them come into compliance with federal civil rights laws prior to the filing of a complaint.” Yet OCR retains the right to open “directed investigations” and “compliance reviews” against educational entities without a complaint; is there a risk that opening your doors to the OPEN Center could put you at risk of further OCR enforcement.
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Title IX Lessons from DOE Report Finding Clery Act Violations at UNC
Th
e Title IX world is abuzz with expectation about the release of regulations from the U.S. Department of Education’s Office for Civil Rights. The general consensus is that even if the Department makes some changes based on the 100,000+ comments it received on the proposed rules, any final rules released will roll back many Obama-era protections for students reporting sexual misconduct. Yet, even as the Department continues with its plans to lighten the load on institutions in the Title IX sphere, it recently issued a “blistering” report finding numerous Clery Act violations at the University of North Carolina, many of which have implications for Title IX compliance. This situation shows that institutional consequences are still alive and well in Betsy DeVos’s Department of Education, and it’s not the first time in recent history that we have seen this to be true—we’re thinking of the oddly intense decisions from OCR against Chicago Public Schools and Michigan State University. No matter how confusing the Department’s actions may be, it is our job to try to understand and follow the rules, whatever they may be. What can we learn about responding to sexual misconduct and Title IX from this recent Clery report?
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