On September 28, 2020, the U.S. Department of Education’s Office for Civil Rights released new technical assistance for elementary and secondary schools concerning COVID-19. The document, Questions and Answers for K-12 Public Schools in the Current COVID-19 Environment, provides OCR’s perspective on schools’ obligations under civil rights laws as schools continue to decide how to provide educational services during the pandemic. Notably for our purposes, OCR addresses how schools should handle Title IX complaints during the COVID-19 crisis. Notably, the Q&A indicates that OCR will defer to educational institutions as to whether there is a good reason to delay Title IX processes because of COVID-19. Such delays should only be temporary and should balance the interests of promptness, fairness to the parties, and accuracy of adjudications.
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Is OCR’s New Approach to Trans Rights in Schools Really Inconsistent? Here’s Why It’s Not
On September 8, 2020, an Education Dive article quoted me about two recent letters from the U.S. Department of Education’s Office for Civil Rights (OCR) on the impact on Title IX of this year’s landmark U.S. Supreme Court decision on sexual orientation discrimination in employment. OCR’s position: Title IX, like Title VII, now protects against discrimination based on sexual orientation and gender identity in schools. But that does not mean that schools can grant transgender students equal access to sex-segregated facilities or sports teams, says OCR. Media reports suggest the Department’s stated approaches are “totally at odds”–but are they? Here is a summary of the letters and why they seem pretty consistent, after all.
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Don’t Count on Lawsuits to Save Schools from the New Title IX Regs
For anyone taking the ostrich approach to the Department of Education’s Title IX regulations—sticking their heads in the sand and hoping that a lawsuit will come along to blow these pesky regulations away—there may be some hope. Two recently-filed lawsuits, one by attorneys general from 17 states, including Illinois, and the District Columbia and another by the state of New York, seek to invalidate the new regulations under the Administrative Procedure Act or, at the very least, obtain an extension of the August 14, 2020 implementation date. Despite these and other pending lawsuits—including one from the ACLU filed in May—schools, colleges, and universities should continue to prepare to implement the new Title IX regulations on August 14, 2020. Educational institutions may wish to consider including language in new policies and procedures allowing quick changes if a challenge to the regulations proves successful. This would allow a return to governing documents currently in effect without normal delays inherent in educational policymaking if warranted by a court ruling.
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More Title IX Turmoil: OCR Athletics Decision Puts Transgender Rights in Flux
It seems like all we talk about these days in the Title IX world is sexual harassment, as we scramble to implement new Title IX regulations that go into effect in August. Yet, this week brought significant news with respect to another side of Title IX—the rights of transgender students under the Federal law.
In a Letter of Impending Enforcement Action from May that came to light yesterday, the Department of Education’s Office for Civil Rights (OCR) threatened to take away federal funding from six Connecticut public high schools and the state’s athletics conference for allowing “biologically male” transgender female students to compete on girls athletic teams, which OCR found violates the Title IX rights of the cisgender female students on the teams. According to OCR, female students, unlike their male counterparts, were denied the ability to compete “on a level playing field” in athletics by not being allowed to compete against only cisgender female students.
We know that the Department has been pulling back on Title IX protections for transgender students for some time, so why is this news? Because as Title IX has become less useful for transgender advocates, they have turned to state laws (including in Illinois), which have been instrumental in the fight for access to facilities and activities based on gender identity in recent years.
Federal law generally preempts state law, however, so if Title IX prohibits providing equal access because of impacts on cisgender female students, schools may be required to disregard state law to avoid violating Title IX. Although the OCR decision appears to be limited to the realm of athletics, we have come to learn that with OCR these days, nothing is certain. This OCR letter, coupled with an imminent decision from the U.S. Supreme Court in the Title VII case Harris Funeral Homes v. Equal Employment Opportunity Commission, threaten to drastically upset the certainty for educational institutions regarding the laws governing transgender rights in schools.
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Lessons from Recent ED Guidance on Civil Rights in Education Under COVID-19
With guest co-author Erin Walsh
Last week, the U.S. Department of Education issued a Questions and Answers for Postsecondary Institutions Regarding the COVID-19 National Emergency document reminding colleges and universities that responsibilities to accommodate students with disabilities and process Title IX sexual misconduct complaints continue during the coronavirus disease 2019 public health crisis. Although the FAQ is aimed at postsecondary schools, the discussion is equally applicable to K-12 schools. The gist of the FAQ is that, although some disability accommodations may be more likely to be unduly burdensome or a fundamental alteration of a school’s programs or activities because of COVID-19, educational institutions must nonetheless take all steps, “to the maximum extent possible,” to allow students with disabilities to participate in and receive the benefits of or services offered by their schools. With respect to Title IX, the FAQ is a reminder that although delays in the processing of Title IX complaints may be justified by the public health crisis, hearings and investigations should not be delayed simply because in-person interviews or hearings are “cumbersome or not feasible.” Nor should blanket policies putting all investigations or disciplinary proceedings on hold be used. Institutions should still accept harassment complaints even if they are only offering distance learning and should notify community members if there have been changes to the way complaints can be submitted or are processed. The FAQ also reminded schools that no-contact and no-communication agreeme3nts or orders between complainants and respondents should continue to be enforced, although some may require modification because of changed circumstances due to COVID-19.
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They’re Finally Here: U.S. Department of Education Issues Title IX Regulations
After almost one-and-a-half years since issuing its original proposed rule, the U.S. Department of Education has issued final Title IX regulations effective August 14, 2020. Although analyzing the changes will take some time, what follows is a brief initial summary of some of the main changes in the final rule. Please join us for a complimentary webinar breaking down the new rule on Monday, May 11, 2020, at 11:30 a.m. We will be working on providing you more insights, as well, in the coming days.
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Lemons into Lemonade: 4 Coronavirus Shutdown Tasks to Prepare for Title IX Rules
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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