The U.S. Department of Education’s Office for Civil Rights announced today that it will hold a virtual public meeting from June 7, 2021 to June 11, 2021, to gather information to improve enforcement of Title IX. OCR is seeking input from students, parents, educators, school staff, administrators, and other members of the public about what
Responding to Bystander and Anonymous Sexual Harassment Complaints
It’s an all-too-common scenario these days: Students report sexual misconduct perpetrated against other, often unnamed students. They post anonymously on Instagram. They hang letters on walls or post complaints on bulletin boards. They hold protests and speak out at board meetings. Often, the allegations are nothing more than vague references to harassment and mishandling of reports by the institution. Our Title IX Decision Tree walks you through various decision steps of the Title IX process, including those related to bystander and anonymous complaints. We also have a free flowchart that addresses responding to bystander and anonymous complaints; email us at titleix@franczek.com to request a copy. For more on how to respond to bystander and anonymous sexual harassment reports under Title IX, keep reading here.
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Biden’s Executive Order on Title IX Warrants Little Practical Change for Schools
Today, President Joe Biden issued an executive order addressing Title IX, entitled Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. Unfortunately, the order sheds little light on how the Biden administration intends to change Title IX and, as a result, warrants little practical change for schools, colleges, and universities. The order directs the new Secretary of Education, Miguel Cardona, to “consider” suspending, revising, or rescinding the 2020 Title IX rule, but does not actually take any action with respect to the Trump-era rule. Similarly, it directs Cardona to issue “new guidance” interpreting the rules, but does not provide any actual guidance now. Perhaps the most interesting part of the order is language directing Cardona to consider “additional enforcement actions” to enforce the new administration’s position on Title IX. Does that mean that the Office for Civil Rights will begin taking a different position when investigating Title IX complaints, even before new guidance or rules are issued? As we have discussed before, the most reasonable approach for educational institutions now is to stay the course, implementing the 2020 Title IX rules as written, unless and until the Department says otherwise. Even then, schools, colleges, and universities will need to assess whether new guidance or direction from the Department will adequately protect institutions from legal challenges from those who may prefer the 2020 rules. Because of the statement in the order, however, schools, colleges, and universities should work closely with counsel when they receive a request or internal complaint involving sex-based issues. This is particularly true with respect to LGBTQ+ issues, upon which the Department has taken more concrete policy actions to date.
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A K-12 Holiday Wish List for The Next “New” Title IX
In recent weeks, I have been lucky enough to be involved in the conversation about what changes the Biden administration should make under Title IX. In addition to informal discussions with colleagues, administrators, and associations, Real Clear Investigations interviewed me for a recent piece. I discussed the pressure that many schools felt under the Obama administration as one reason the Biden team should not simply return us to the Title IX guidance of that era.
Most conversations, including the Real Clear Investigations interview and article, focus primarily on Title IX and higher education. To some extent, that makes sense. There are more Title IX incidents in higher ed. Colleges and universities have and dedicate more resources toward the process. The highest-profile cases of mishandled complaints are from the higher ed space.
But K-12 administrators have been working hard since May 6, 2020, to implement the new Title IX regulations. They are already feeling the real impacts of the new rules in the schoolhouse (whether in-person, hybrid, or virtual). I have trained thousands of administrators during the summer and fall and helped countless others write policies and respond to complaints under the new rules. I have heard time and again how much in the 2020 rules are not workable for K-12 schools. If K-12 administrators had a wish list for the Biden transition team regarding their genuine and unique concerns, what might it be? Here are the top three considerations as I see them.
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Hundreds of Organizations Ask Biden for Immediate Change in Title IX; How Realistic are the Demands?
Over 100 self-described advocates for civil rights and student survivors of sexual assault and harassment recently signed a letter asking President-elect Joe Biden to “stop enforcement” of the new Title IX rules “as soon as [he] takes office.” As discussed elsewhere on this blog, there is an open question about whether such a quick reversal on the Title IX rules is possible. Unless done well, a fast rollback of the rules could put schools, colleges, and universities between a legal rock and a hard place. Some of the other requests in the letter face fewer barriers to implementation. Although the letter is only one source in a crowded discussion about what the Biden administration should do concerning Title IX and civil rights, it is an interesting addition to the discussion of what changes might be afoot under the new administration.
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Complete Your Required Sexual Harassment Training for Illinois Educational Employees by December 31
As our Franczek colleagues previously reported, under Illinois law, Illinois employers—including schools, colleges, and universities—must train all employees on sexual harassment in employment by December 31, 2020. We also recommend training for all staff by year-end on changes required by the new Title IX regulations. (Yes, despite the recent election, we expect the new regs to remain part of our lives for some time.) If your school, college, or university has not trained employees already, it’s not too late to comply! We offer a training package that can quickly, easily, and—most importantly—effectively train your staff on required and recommended topics. Contact us to obtain training resources from the team you know and trust for Title IX compliance.
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Franczek P.C. Offers Interactive Decision-Tree for Title IX Process
Educational institutions across the country are receiving complaints and reports of sex-based misconduct triggering the use of the new Title IX regulations. We have heard from many Title IX administrators that they are seeking ways to simplify the complicated decision-making process required under the new Title IX regulations when a report or comp
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Video Podcast: How Will Biden Unwind Title IX?
The editors of Title IX Insights were guests on the Education Law Insights podcast hosted by Kendra Yoch to talk about how President Elect Joe Biden might unwind Title IX upon taking office. Check out the video blog below.
What Comes Next? Title IX Under a Biden Presidency
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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Are the New Title IX Regulations Retroactive? One Court Says Yes
When it issued its final Title IX regulations in May 2020, the U.S. Department of Education’s Office for Civil Rights said in the preamble to the rules that it would not enforce the final rules retroactively. It repeated that position in a blog post on August 5, 2020, saying unequivocally that “the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.” Schools, colleges, and universities rightfully understood that they should use their old Title IX procedures to address conduct occurring before August 14, 2020.
A recent court decision from the Northern District of New York has called that understanding of the new regulations into serious doubt. The court refused to grant OCR any real deference on whether educational institutions should use new Title IX procedures for pre-August 14 conduct. There are some critical features of the case that schools, colleges, and universities can rely on to support using old Title IX procedures for conduct that occurred before the effective date of the new rules. But there is no question that the decision increases the risk of legal challenges by respondents against their schools for using old procedures in ongoing or new cases. Educational institutions should work with legal counsel to address whether the court’s decision necessitates changes to the processing of existing or future complaints under Title IX.
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