Sex Based Conduct

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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

One of the biggest changes from the new Title IX regulations issued by the Department of Education last week is that, beginning in August 2020, OCR’s complaint findings will be based on standards very similar to those used by federal courts for decades in lawsuits for money damages under Title IX. The U.S. Supreme Court set forth the standards in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Those cases included the fundamental ideas that have now been codified—in modified form—in the Department’s final rule, such as the ideas that a school can only be responsible for sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”; when it exercises “substantial control” over the harasser and the “context” of harassment; and when it has “actual knowledge” of the sexual harassment. These cases also are the root of the “deliberately indifferent” standard that OCR will now use to decide if a school has violated Title IX. What do these standards mean, and what lessons can your institution learn from the court cases in which they were created and fleshed out over the past two decades?
Continue Reading Why Your Next OCR Title IX Complaint May Feel Like A Lawsuit

As we discussed in our blog post on May 6, 2020, the U.S. Department of Education issued on that day its long-awaited Title IX regulations, raising panic and concern amongst stakeholders on every part of the Title IX spectrum. Our Title IX Insights blog team provided some initial thoughts on the new regulations during a webinar on May 11; you can watch the recording here. This blog post answers some of the questions we raised during the webinar as well as some questions we received from the audience but did not have time to address. For more on the details about the final rule, check out the webinar recording and stay tuned to our blog for more insights to come.
Continue Reading 9 for IX: Nine Essential Questions Answered About the New Title IX

After almost one-and-a-half years since issuing its original proposed rule, the U.S. Department of Education has issued final Title IX regulations effective August 14, 2020. Although analyzing the changes will take some time, what follows is a brief initial summary of some of the main changes in the final rule. Please join us for a complimentary webinar breaking down the new rule on Monday, May 11, 2020, at 11:30 a.m. We will be working on providing you more insights, as well, in the coming days.
Continue Reading They’re Finally Here: U.S. Department of Education Issues Title IX Regulations

Hand with garbage against full trash cans with rubbish bags overflowing onto the pavement.

The confusing messages coming from the U.S. Department of Education continue. We still await more information on if/when a final version of the pending Title IX regulations will be released. Those regulations have been almost universally described as rolling back Federal regulatory oversight in the Title IX realm for schools, colleges, and universities. Yet today, Secretary of Education Betsy DeVos announced a “New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools” that suggests elementary and secondary schools can expect an uptick in enforcement in this area starting today. The specific target: the purported uptick in elementary and secondary schools of the phenomenon known as “passing the trash.” This is where teachers who have engaged in sexual misconduct with a student or other minor are fired but allowed to find employment at another school. What can you expect from OCR in light of this initiative and what should K-12 schools do now to prepare?
Continue Reading Garbage In, Garbage Out: ED Department Takes Aim at K-12 Schools “Passing the Trash”

My calendar has been full these past weeks with administrator trainings on Title IX, and one of the issues repeatedly raised is how age and maturity impact the analysis of whether conduct is sexual in nature. A recent report from Maryland provides a good opportunity to discuss this issue. Whether you are a K-12 or higher education administrator, this case is an important reminder of how age and maturity level come into play in student-on-student sexual misconduct investigations.

In this recent situation from Maryland, a group of fourth-grade boys was playing tag with a group of students, during which one boy made inappropriate comments and movement toward a group of girls. One of the boys wrapped his arms around one of the girls, as well. After an investigation, one of the boys was charged with a fourth-degree sex offense and second-degree assault.

The Office for Civil Rights (OCR) 2001 sexual harassment guidance addresses the issue of age and maturity, stating clearly as a preliminary matter that “[s]chool personnel should consider the age and maturity of students in responding to allegations of sexual harassment.” (2001 Guidance at iii). Where might age and maturity come into play in a case like this recent one from Maryland?
Continue Reading What Title IX Administrators At All Levels Can Learn From Recent Sexual Assault Charges Against 10-Year-Old for Playground Tag Game