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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.
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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

In 2017, a high school cheerleader learned she had not made the varsity team and turned to Snapchat. She posted a picture of herself and a friend, middle fingers up, with the text “f— school f— softball f— cheer f— everything.” She was subsequently suspended from the Junior Varsity cheer team. Little did she know that her frustrated message would lead to the first U.S. Supreme Court case to address the limits of school discipline for student off-campus, online speech.

Yet, last Friday, the Supreme Court decided to hear the student’s challenge to the school’s discipline for her Snapchat post. I have been writing about the scope of K-12 schools’ authority to discipline students for off-campus, online misconduct for a long time. The Supreme Court has long refused to take on similar cases, despite pleas from administrators for better guidance on their rights. The result is that courts have reached different decisions in different parts of the country, making it even more challenging for schools to apply the standards correctly.

It is exciting to think that the Supreme Court may finally give direction to educators on this issue. Hopefully, they will answer important questions like whether the Tinker standard for substantial disruption applies to off-campus online misconduct and what, if any, nexus is required to impose discipline.

What should school leaders do about this issue now? School leaders in most jurisdictions should wait on the Court’s decision before making any changes to policies and procedures. Those of us who advise K-12 schools know how important the authority to discipline for off-campus, online speech can be to maintaining order in a school building and hope that the Supreme Court will agree. Until then, it is more important than ever to reach out to legal counsel for assistance in understanding what, if any, discipline can be imposed for off-campus, online incidents, including those involving Title IX. Keep reading this post for more insight and analysis of this important decision. …
Continue Reading Supreme Court (Finally) Will Address School Discipline for Off-Campus, Online Student Speech

Recently, the U.S. Department of Education (ED) replaced the 2016 Clery Act Handbook (Handbook) with the new Clery Act Appendix for FSA Handbook (Appendix). The Appendix rescinds previous ED guidance interpreting Clery Act regulations, leaving higher education institutions with 13 pages of sub-regulatory guidance. While the contents of the Appendix do not have a binding effect on institutions, the ED stated that its intent was to provide clarity regarding existing Clery Act statutory and regulatory requirements. The following Q&A addresses questions that may arise when reviewing the recent changes to Clery Act guidance.
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Continue Reading Q&A: What the U.S. Department of Education’s New Clery Act Appendix Really Means for Colleges’ and Universities’ Clery Act Compliance Efforts

As a Presidential candidate, Joe Biden promised that, if elected, he would put a “quick end” to the Trump administration’s 2020 Title IX rule on sexual harassment. Now, Biden is the projected winner of the 2020 Presidential election.  What does that mean for Title IX and, most importantly, for the schools, colleges, and universities that must comply with it? The Trump administration used rulemaking to update Title IX, not the more-easily discardable informal guidance used by the Obama administration. Unwinding this complicated new system will be challenging, and doing it in a way that protects the educational institutions who must comply with the law is essential. This post contains key questions and answers for school leaders about what the election results mean for Title IX.
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Continue Reading What Comes Next? Title IX Under a Biden Presidency