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.
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?
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.
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
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.
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.
This week, the U.S. Supreme Court declined to review a decision allowing transgender high school students to use bathrooms and locker rooms consistent with their gender identities. The High Court’s rebuff means the lower court decision stands. The tacit endorsement solidifies an understanding of Title IX supported by other courts, including the only other federal appellate court to address the question. The decision is also notable because of the new composition of the Court, with the addition of Justice Amy Coney Barrett. The case offered the Court an opportunity to quickly narrow the holding of the recent transgender employment decision, Bostock v. Clayton County. Yet, it did not do so. Continue Reading Despite Change in High Court Composition, U.S. Supreme Court Declines to Hear Challenge to Transgender Student Rights
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.
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 complaint is received. Franczek P.C. has prepared an interactive decision-tree for the Title IX process to help meet that need. The interactive tool can be used with the Franczek P.C. Title IX Toolkit to allow Title IX Coordinators, their designees, and other administrators to easily work through threshold questions, the investigative and decision-making steps in the Title IX process, appeals, and more. For more information on the decision-tree, contact any Franczek attorney.
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.