The Department of Education (“ED” or the “Department”) issued its long-awaited Notice of Proposed Rulemaking[1] to amend regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) on November 29, 2018. Comments to the proposed regulation are due on or before January 30, 2019. Here are ten notice requirements the proposed regulation would impose on elementary and secondary schools if they become final. Continue Reading 10 Notice Requirements in the Department of Education’s Proposed Title IX Regulations

The Department of Education (“ED” or the “Department”) issued its long-awaited Notice of Proposed Rulemaking to amend regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) on November 29, 2018. As the Department has acknowledged, the proposed rules would adopt standards that significantly depart from those set forth in prior ED regulations and guidance under Title IX. Although much of the debate regarding the proposed rules has focused on institutions of higher education’s treatment of sexual harassment, the proposed rules also would significantly impact elementary and secondary schools. Husch Blackwell’s education team offers the following overview of the proposed rules, with a focus on the Department’s regulation of K-12 institutions. Continue Reading Department of Education Issues New Title IX Regulations: What this Means for Elementary and Secondary Schools

In light of shifting federal guidance and heightened awareness of sexual harassment, school districts should be on high alert with respect to their internal Title IX policies, staff, and training.  Otherwise, they may face complaints with the Department of Education or litigation surrounding the incidents of alleged sex or gender discrimination, sexual harassment, or interpersonal violence. Continue Reading Feeling the Shift in Title IX’s Landscape: Internal Policies and Procedures, OCR Investigations, and Litigation

On Friday, September 22, 2017, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) and Q&A on Campus Sexual Misconduct. The DCL withdrew the 2011 DCL on Sexual Violence and the 2014 Q&A on Title IX and Sexual Violence issued by the previous administration. In the DCL, Candice Jackson, Acting Assistant Secretary for Civil Rights stated, “[t]he 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students-both accused students denied fair process and victims denied an adequate resolution of their complaints.” The Acting Assistant Secretary went on to state that the 2011 and 2014 guidance documents imposed regulatory burdens without affording notice and the opportunity for public comments.

Continue Reading OCR Withdraws Sexual Violence Guidance Issued by Previous Administration

On June 6, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent the Office for Civil Rights (OCR) Regional Directors a memorandum outlining how to evaluate and investigate complaints involving students who identify as transgender. Under the Obama Administration, the Department of Education and Department of Justice issued a joint Dear Colleague Letter which provided specific information regarding Title IX recipients’ obligations and examples of how transgender students’ complaints of sex discrimination should be evaluated. On February 22, 2017, the Department of Education withdrew  the 2016 Dear Colleague Letter, and now Jackson’s memorandum serves as guidance. Continue Reading OCR Issues New Guidance Seeking to Address Transgender Student Complaints

In Salazar v. South Antonio Independent School District, the U.S. Court of Appeals for the Fifth Circuit held that an educational institution can be liable under Title IX for sexual misconduct committed by its employees only when an employee with power to correct the misconduct—other than the wrongdoer himself—is aware of the misconduct and is deliberately indifferent to it. Although the student plaintiff in the case argued an institution could be liable based on a principal’s deliberate indifference to his own misconduct, the court rejected this result as inconsistent with Title IX. The court held: “We discern no congressional intent in Title IX to provide a private cause of action for damages when the only employee or representative of [an institution] who had knowledge of the [misconduct] was the offender.” The court’s ruling ensures that an educational institution—including a college or university—will not be liable under Title IX someone other than the wrongdoer at the institution is aware of misconduct and the institution has a fair opportunity to respond to it, but nonetheless remains deliberately indifferent to it.

The facts of Salazar are tragic.

Continue Reading Court Holds Title IX Liability Requires Someone Other Than Wrongdoer to Know of Misconduct

Ladies room and mens roomThe extension of civil rights protections to transgender and gender non-conforming individuals is rapidly evolving.  These issues are playing out in schools across the country, and a recent Seventh Circuit decision seems to suggest that transgender students will be afforded Title IX and Fourteenth Amendment protections.

In Whitaker v. Kenosha Unified School Dist. No. 1., No. 16-3522, 2017 WL 2331751 (7th Cir. 2017) the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex.  Continue Reading 7th Circuit Orders School District to Allow Transgender Student Access to Restroom that Corresponds with Student’s Gender Identity, Not Biological Sex

Gavel On Rainbow FlagAs we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision.  Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue.  The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question. To learn more, please visit our Higher Education Legal Insights blog.

The Supreme Court of the United States somewhat unexpectedly agreed on Oct. 28, 2016, to take on the question of whether Title IX requires public school districts to allow transgender students to use single-sex restrooms corresponding to their gender identity rather than that of their birth sex. The issue has generated widespread controversy between the federal government (which has taken the position that it does) and several states that have taken the opposite view. The Court also will have the opportunity to address a split in the lower federal courts on this issue. In the case that the Court will review, Gloucester County School Board v. G.G., the U.S. Court of Appeals for the Fourth Circuit agreed with the Obama administration that Title IX requires this sort of accommodation for transgender students. In contrast, a federal trial court in Texas disagreed and issued an order purporting to prohibit the Departments of Education and Justice from enforcing their interpretation of Title IX. Because of this level of controversy, the Court’s decision to address this issue is welcome, albeit surprising to some. Many commentators expected the High Court to avoid controversial issues until a ninth justice was confirmed.

The Supreme Court also agreed to take up the related question of whether the Fourth Circuit properly deferred to an informal Department of Education interpretation of Title IX. The Court, however, did not grant petitioners’ request that it review its prior decision that more formal agency interpretations of their own regulations should be granted some deference by the federal courts. This is significant because some justices have previously expressed a desire to revisit that issue. Because of the amount of guidance issued in recent years, that broader issue would have huge implications for public school districts.

The Court’s decision to address the meaning of Title IX in this context should give public school districts, as well as colleges and universities, greater clarity of the requirements of federal law in this area. Of course, many state and local laws, as well as school district policies, already provide additional guidance on this issue.

Gloucester County School Board v. G.G. will likely be one of the most closely watched cases of the Court’s 2016 term, and we will continue to update this blog as the case progresses.

Yesterday, the White House released a Fact Sheet: Ensuring Safe and Supportive Schools for All Students. The White House Task Force to Protect Students from Sexual Assault in partnership with the U.S. Department of Education (the Department) announced additional materials to help school districts address sexual assault misconduct in elementary and secondary schools. These resources demonstrate the continued commitment of the Department and White House to addressing the issue of sexual assault on campus. It also underscores that the Title IX requirements to prevent and address sexual misconduct are not just an issue for colleges and universities, but also for public school districts as well. Continue Reading White House and Department of Ed Remind K-12 Schools of the Importance of Sexual Misconduct Policies and Procedures