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.
Continue Reading Are the New Title IX Regulations Retroactive? One Court Says Yes
The Best Things in Life: Free Title IX Training Resources for Rules Compliance
It has been over two months since the 2020 Title IX regulations setting forth a new procedure for addressing school-based Title IX sexual harassment complaints went into effect. The new rules require, among many other things, that all members of what we here at Franczek P.C. call the “Title IX Team” receive training. Our attorneys are leaders in helping schools and their attorneys learn the new law, both through free resources and a comprehensive training package that allows training of the entire Title IX Team–a feat that cannot be achieved through free resources alone. This blog includes a refresher on what training is required, who needs Title IX training, what to look for in a training provider, and a comprehensive list of the free resources your school, college, or university can use to help meet the compliance requirements of the new Title IX.
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OCR Q&A Addresses Title IX, K-12 Schools, and COVID-19
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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Critical Elements for a Compliant Title IX Sexual Harassment Procedure
Well, we’ve made it almost six weeks since the new Title IX Sexual Harassment regulations went into effect. And I’m happy to see that so many of our clients and friends are making good progress with revising and approving policies and completing mandated training. You may be wondering what should be next on your checklist. My recommendation: Spruce up your administrative procedures or regulations. You need to be ready to answer a question from OCR or a court about where they can find your detailed process for investigating and adjudicating Title IX Sexual Harassment complaints. For many institutions, the answer will not be the formal Title IX Sexual Harassment policy. If you do not have an administrative procedure in place, contact us for assistance. Keep reading to learn more about this requirement and what the procedures should include.
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Posting Title IX Training Materials: Copyright Considerations for Educational Institutions
As we explained in an earlier blog post, one of the requirements of the new Title IX regulations–the mandate to post all materials used to train Title IX personnel on a school’s website–has understandably raised questions for K-12 and higher education institutions regarding copyright compliance. Today, I was thrilled to host Ashly Boesche, a
Six Weeks to the New Title IX: Here’s How Your Institution Can Meet the Deadline
When I was studying for the bar many, many years ago, I remember waking up about six weeks before the exam with a sinking feeling in my stomach, wondering “How am I ever going get this all finished in time?!” I can imagine many educational leaders are feeling the same dread looking at the calendar this week, wondering how in the world their institution is going to come into compliance with the new Title IX regulations by the August 14, 2020 implementation date. It’s not a matter of lack of effort–just like I did that summer before the bar, I know that you all have been working diligently to get everything done. But the sheer amount of work there is to do can be overwhelming. That morning, during my bar summer, after I woke up I sat down and came up with a plan for how to get everything done by the date of the exam, and began checking things off the list one by one. That, too, is the approach I recommend you take right now to help your educational institution down the path to compliance by August 14. Here’s how to do it.
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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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A “Sign” of Things to Come: Title IX Coordinators and “Signing” Complaints
Continue Reading A “Sign” of Things to Come: Title IX Coordinators and “Signing” Complaints
OCR Blog Offers Additional Insight on New Title IX Rule Requirements
As you are all well aware by now, the U.S. Department of Education recently issued its final Title IX regulations. While we continue to wade through the over 2,000-page document issued by the ED (consisting of the new regulations and the preamble commentary), OCR provided some additional guidance on its blog regarding the requirement