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. Continue Reading Is OCR’s New Approach to Trans Rights in Schools Really Inconsistent? Here’s Why It’s Not

We’ve had a lot going on.

COVID-19. School reopening. Racial equity issues. And the cherry on top? Those Title IX Sexual Harassment regulations that we’ve been digging out from under since May 6.

With all that going on, I’d forgive you for feeling a bit like one of my favorite characters from Hamilton, Thomas Jefferson, wondering, “What did I miss??”

And it turns out the answer in the world of Title IX is: “A lot!” The Department of Education has continued down its path of making significant changes to the Title IX landscape, including several issues unrelated to sexual harassment. Whether you’re a K-12 or higher education administrator, you need to come up to speed on these changes and the resulting impacts they should have on practices in the new school year.

Our team is offering a complimentary webinar to help you do just that. Join us (Jackie Gharapour Wernz and Emily Tulloch) to discuss all of the hot Title IX issues you may have missed but can’t ignore, including:

  • The U.S. Department of Education Office for Civil Rights (OCR) ’s rescission of Title IX guidance documents, including the 2001 Sexual Harassment Guidance and the 2015 resources for Title IX Coordinators,
  • OCR’s publication of letters addressing the rights of LGBTQ students under Title IX in response to the recent U.S. Supreme Court decision recognizing rights for LGBTQ employees under Title VII of the Civil Rights Act of 1964, and
  • OCR’s recent update to its Case Processing Manual (the CPM).

The latter portion of the webinar will also include time for your Title IX questions, including those relating to Title IX sexual harassment.

Today is the day. After almost two years of thinking about whether the proposed Title IX regulations would go into effect at all, starting today we are operating under the new rules at schools, colleges, and universities across the country. In addition to preparing for an unprecedented school year opening, we know you’re also on top of all the training and policy revisions needed for compliance. (You are, right? If not, find more information here.) But don’t forget the requirement to update your website with certain information, including your nondiscrimination statement, Title IX Coordinator information, training materials used to train your Title IX Team, and a provisional grievance procedure if your policies are not yet finalized, by today. In our experience, most higher education institutions already have extensive Title IX presences on their websites, so you may just need to make a few adjustments. But this requirement is just the kind that might slip under the radar for many K-12 schools. Our team at Franczek P.C. has put together website and procedural language to help schools easily comply. Reach out to us at titleIX@franczek.com for more information. The following are the requirements from the regulations as to what an institution must post on its websites by tomorrow to be in compliance.

Continue Reading We’ve Got You Covered: Website and Grievance Procedure Updates Required Today for Title IX Compliance

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 Partner at the Chicago intellectual property boutique powerhouse Pattishall McAuliffe. Drawing on her expertise in the area of copyright law, Ashly shed some light on this question. The video is available below, and the audio will also be published through our Education Law Insights podcast, which you can find wherever you get your podcasts.

Almost one-and-a-half years after releasing its proposed rule, the U.S. Department of Education issued new Title IX regulations on May 6, 2020. Because the 2020 Title IX regulations become effective on August 14, 2020, educational institutions must move quickly to come into compliance during what are already particularly trying times. To assist your institution with coming into compliance, we Franczek’s Title IX team is offering the following products and services to school districts, schools, colleges, universities, and community colleges:

  • Title IX Toolkit. Our Title IX Toolkit contains the written documents needed to bring your institution into compliance, including a compliance action plan, notices, forms, and letters, and insights and analysis of the Illinois PRESS policy when it is released. Toolkit subscribers will also receive access to an exclusive webinar addressing Toolkit and PRESS policy customization.
  • Training. The 2020 Title IX regulations for the first time require specific training for school and school district employees, including Title IX Coordinators, investigators/administrators, decisionmakers, and mediators. Because the rules require K-12 schools to respond to sexual harassment reports and complaints if any employee has actual knowledge of the harassment, it is also essential that all K-12 staff receive basic training so that they can report it as required. Our interactive, engaging, customized trainings—offered both in person and online using videoconferencing—meet all requirements under the new rules.
  • Investigations, Determinations, and Informal Resolution. Many educational institutions will have in-house investigators to investigate claims, decision-makers to decide complaints and appeals, and facilitators to handle informal resolutions. In some cases, staffing and training limitations, conflicts of interest, and even the sensitive nature of allegations may necessitate looking outside an institution’s walls for an investigator, decisionmaker, or facilitator. When they do, Franczek P.C.’s experienced, trained attorneys are available to assist.

For more information on the Title IX services we provide, please email us at titleix@franczek.com. We also offer summaries of our Title IX resources for PreK-12 schools and higher education institutions on our website. And, as always, for the most up to date discussions about the impact of Title IX on your institution, follow our titleIXinsights.com blog.

Come join us to unwind Title IX while also unwinding with colleagues and friends!

We know the challenges facing administrators responsible for Title IX compliance at the K-12 level, with the August 14 effective date for the new Title IX rules looming. We also know that collaboration with other K-12 Title IX administrators, though indispensable, can be challenging during these days of remote working. To address these challenges, Franczek P.C. invites you to join us for the first meetup of the Illinois K-12 Title IX T.E.A.M. (Title IX Educational Administrators Meetup). This meetup will be an informal chance to get to know other colleagues engaged in this work while also discussing the key challenges your institution is facing with respect to coming into compliance with the new regulations.

Who: Illinois K-12 administrators with any role in implementing the new Title IX regulations at their schools or districts.

When: The Illinois K-12 Title IX T.E.A.M. will meet on Thursdays at 4 p.m. via Zoom.

Where: Register using this link. After registering, you will receive a confirmation email containing information about joining the meeting.

July 21, 2020 at 11:30 a.m. – 12:45 p.m. CT

In this session of Ankura’s monthly Title IX and Civil Rights Investigations webinar series, Dan Schorr and Alyssa-Rae McGinn will be joined by Franczek P.C. partner Jackie Gharapour Wernz for a discussion of the important issues related to complainant and respondent advisors in Title IX investigations. Topics will include the role of the advisor during an investigation or hearing, the impact of the Department of Education’s new Title IX regulations on this role, who should serve as an advisor, how to address advisors who are disrupting an investigation or hearing, and the advisor’s role in cross-examination. The webinar will also examine how the role of an advisor differs in K-12 vs. higher education processes.

As external investigators working with educational institutions and other organizations, the presenters will draw upon experience investigating reports of sexual misconduct, intimate partner violence, and gender-based and racial harassment involving students, faculty, and staff to discuss relevant legal requirements and policy considerations while responding to your questions and comments. The webinar will incorporate the latest requirements and guidance from the Department of Education’s new Title IX regulations.

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.

Continue Reading Six Weeks to the New Title IX: Here’s How Your Institution Can Meet the Deadline

ostrich head in sandFor 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.
Continue Reading Don’t Count on Lawsuits to Save Schools from the New Title IX Regs

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. Continue Reading More Title IX Turmoil: OCR Athletics Decision Puts Transgender Rights in Flux