Keep Moving

April 21, 2021

 

Title IX professionals knew this was coming. We expected to hear that there would be significant changes yet again in the Title IX world…but that doesn’t make it any less overwhelming.

 

May 6, 2020 feels like just yesterday. We were all furiously combing through 2000-plus pages of the “new” Title IX regulations and preamble. We found ourselves scrambling to understand the new expectations, asking questions of OCR, and gathering as much information as possible to comply with the looming August 14 deadline. Teams were formed and trained. Policies and procedures were drafted and approved. Campus and school district communities were informed of these sweeping changes. It was an absolute whirlwind. But we made it!

 

Then, Title IX administrators were able to take a breath, albeit a short one, until the first reports started to trickle in. After receiving reports, Title IX teams have worked to provide appropriate supportive measures, distinguish Title IX behavior from other forms of sexual harassment, and move through a new and taxing formal grievance process…all during a pandemic. To say it has been a lot is a significant understatement. But again, we made it!

 

Now, here we sit in April 2021 with a new letter from OCR. This one directed to students, educators and other stakeholders, outlining a plan toward possible revisions through a new notice of proposed rulemaking. Feels a bit like déjà vu right? Honestly, it’s this constant shift that makes many people freeze, in a state of worry about what will come next, afraid to make a move because it may be the wrong one. Understandably so. However, we have to keep moving. And as I write this, I am singing to myself the lyics to the Matthew Wilder song—Break My Stride. For those unfamiliar, the chorus includes:

 

Ain’t nothin’ gonna to break my stride
Nobody gonna slow me down, oh no
I got to keep on movin’

 

It has become my 2021 motto. We truly just have to keep going. Staying informed on potential changes in the future is important, but moving forward under the current regulations is imperative. They are the law. Period. They remain the law until the law changes, and we as Title IX professionals are charged with helping institutions and districts remain compliant with the law.

 

So…how do you keep moving? Well, we’ve got you covered! Here are few tips to remain informed, have your voice heard on what is working/not working in the current process, and to remain compliant with the law as it stands.

 

Step 1: Operate under your current policies and  procedures We do not expect any permanent changes for at least eighteen months.

 

Step 2: Review what has worked under the policies you drafted for the August 14, 2020 implementation date Gather your team and discussed how the matters resolved. What worked well? What can be better? Use the summer to evaluate and update the policies to make them more user friendly for the 2021-22 academic year.

 

Step 3: Review the release from OCR (found here) It includes a link to the April 6, 2021 letter related to the direction the Biden Administration intends to move in the future.

 

Step 4: Use your voice at the Public Hearing (addressed in the press release from Step 3) This will help ensure that OCR understands the challenges that are being faced on the ground, from the Title IX Coordinators doing this work day in and day out. ICS will update you as we know more about how and when the hearings will occur.

 

Step 5: Support your team This work is HARD and can be exceptionally lonely. Make sure they feel supported. Hold each other up. Get lunch together. Enjoy time together outside of this work. It is important for sustainability.

 

Step 6: Don’t Break Your Stride, Nobody’s Gonna Slow you Down, Keep Moving! YOU’VE GOT THIS!

 

 

Need help implementing the above steps? ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.

Lessons From LSU

March 26, 2021

 

Years ago, I wrote a blog on the lessons learned from one University’s high profile external investigation into its handling of sexual assault cases.  Five years later, in the wake of the LSU investigation, these lessons remain relevant.

 

Early March, Husch Blackwell released its investigation into LSU’s handling of sexual misconduct complaints, finding a serious institutional failure created by campus leaders who did not put the resources into Title IX compliance.  Specifically, the report stated that the Title IX office was not adequately staffed and was not provided the necessary authority or independence to effectuate its compliance mandates.  Sound familiar?

 

The result internally at LSU: lengthy unpaid suspensions and education for two prominent LSU officials in athletics.

 

For employees implicated who have since left LSU, Kansas terminated former LSU football coach Les Miles as a result of the findings in the report.  F. King Alexander, LSU’s former President, just resigned from his post as President at Oregon State amid the fallout from the LSU investigation.

 

In the last five years there have been many institutions that have been in the headlines for allegations of systematic failures.  Are institutions learning lessons from these matters?  And have the lessons changed, or do they remain the same?  My opinion: the lessons remain very much the same and institutions (and K-12, look for my next blog post) need to take notice.

 

Are times changing?

 

We have seen institutions build up large Title IX offices to ensure they have the resources necessary to meet Title IX obligations and effectively address allegations of sexual misconduct.  In many instances, however, the most robust Title IX offices are a result of a high-profile investigation/crisis.  Fortunately, in some cases, sweeping changes have been instituted in response to the findings of external investigators to bolster prevention efforts and compliance.  LSU demonstrates, however, that despite changes at some institutions, many remain who continue to take an ad hoc approach to compliance.  COVID has not helped matters with respect to funding but the fact remains that Title IX offices must be properly resourced, with appropriate authority provided to the Title IX Coordinator.  The new Title IX regulations have brought some of this to light; however, universities need to continue to take a close look at the structure of their Title IX offices, including appropriate support from institutional leadership.

 

Accountability

 

As I said in my interview with the Chronicle for Higher Education, the tolerance level for leadership who do not make addressing sexual misconduct on campus a priority is lower and lower, as it should be.  What we see with LSU is not only internal disciplinary measures with employees implicated in the report, but also two high level officials impacted at their new institutions who have ultimately lost their jobs.

 

Accountability at the highest level is tantamount and expected by the court of public opinion.  That starts with the President.

 

External Investigators

 

Attention to these high-profile cases continue to highlight the need to engage external investigators in certain cases, especially those involving an alleged culture of behavior.  External investigators who understand the university landscape, and will tell leadership what they need to know, not what they want to know, is imperative.  External investigators should be well versed in Title IX, VAWA and related federal regulations, trauma-informed and adequately trained and experienced in these types of investigations.

 

At the end of the day, LSU’s findings should encourage your institution to be self-reflective and self-critical in analyzing where it stands in compliance.  Learn the lessons now, instead of through trial by fire when a situation hits your campus, to ensure your students, faculty and staff have a safe living, learning and working environment.

 

ICS provides a full range of legal and consulting services for K-12 and colleges and universities.  These services include external investigations in complex matters implicating sexual misconduct as well as full scale program reviews.  Contact us for more information.

 

 

Retaliation Claims for Participants in Title IX Process?

 

March 4, 2021

 

On February 16, 2021, the U.S. Court of Appeals for the Eighth Circuit rendered a decision in Du Bois v. Bd. of Regents of Univ. of Minn., holding that the retaliation protections under Title IX do not extend to investigation participants who supported the Respondent during a Title IX investigation.

 

Du Bois was a student athlete at the University of Minnesota in 2018, when her cross-country coach was investigated for allegations of sexual harassment.  Du Bois voluntarily participated in the investigation, coming forward on behalf of her coach, and denying any knowledge of sex discrimination.  Having a limited number of NCAA eligible athletic seasons, and after sustaining an injury, Du Bois later sought to “redshirt” (defer her next athletic season to a later semester) or to transfer to another school.  The University denied Du Bois’ request to redshirt, although it allegedly allowed other student athletes to do so, and eventually removed her from the team.

 

Du Bois filed suit against the University alleging retaliation as a result of her participation in the Title IX investigation of her coach. The University filed a motion to dismiss Du Bois’ suit for failure to state a claim, and the U.S. District Court for the District of Minnesota granted the University’s motion.  Du Bois appealed the decision.

 

Title IX itself does not expressly provide a right of action for retaliation. In Jackson v. Birmingham Bd., the U.S. Supreme Court held that a right of action for retaliation is implied by the statute.  However, the Court declined to establish the actual elements which are necessary to state a claim.  As such, various federal circuits established their own approaches to analyzing Title IX retaliation, with most circuits relying on the framework for Title VII retaliation as a guidepost.  Notably, according to Jackson, and under the Title VII framework, a Plaintiff alleging retaliation must have engaged in a protected activity in order to trigger retaliation protections.

 

In this case, the Eighth Circuit Court of Appeals held that Du Bois’ participation in the investigation simply did not constitute a protected activity.  The court reasoned that the statute and its implied retaliation provisions are designed to protect those who have complained of or opposed sex discrimination. The court found that Du Bois had done exactly the opposite.  She had stated that she was not aware of any sex discrimination. Therefore she did not engage in a protected activity which would avail her of protection from retaliation.

 

The court’s opinion distinguished Du Bois’ case from a similar Ninth Circuit case where student athletes were found to have been subject to retaliation when their coach was fired after bringing forward sex discrimination complaints on their behalf.  The court stated that in that case, the students had suffered a harm as a result of their complaints, whereas Du Bois denied any such complaints.

 

This is an interesting development, as it is a elucidates an important deviation from the Title VII framework previously used by the Eighth Circuit and other federal circuit courts to analyze Title IX retaliation claims. Under traditional Title VII principles, participation in an investigation, whether as a witness for the Complainant or the Respondent, is a protected activity.  So while the Eighth District did not set forth a new test or new elements for establishing a claim for Title IX retaliation, the clarification on what constitutes a protected activity certainly reduces the potential for retaliation claims to be brought forward by witnesses or investigation participants, at least within the Eighth circuit.

 

This might leave you thinking, “What about the new Title IX regulations?  Don’t those regulations include protections from retaliation?”  Indeed, the new regulations, which became effective August 14, 2020, state at 34 C.F.R. § 106.71, “No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX…or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part.”  So how can the court’s decision be explained?

 

Well, as noted multiple times within the pre-amble to the new regulations, the key retaliation protections here are aimed at those who are “exercising rights under Title IX.”  The Eighth Circuit has put its focus on that language, and its opinion is that a witness not opposing a violation of Title IX is not “exercising rights” under the law, and therefore is not entitled to those protections.  On its face, this interpretation appears to be somewhat contradictory to the intent of the new regulations to include additional protections from retaliation, which did not previously exist.  It will be curious to see whether other circuits adopt the same analyses in their own jurisdictions.

 

Interested in learning about the many Title IX services that Institutional Compliance Services provides? Contact us for more information.

Training Requirements: K-12 Title IX and Athletics – What Does Your School District Need to Know?

February 8, 2021

 

Often incidents of alleged sexual harassment arise in the athletics environment – be it in the locker room, on a bus to or from a game, or before or after practice, to name a few.  To ensure your school district meets its Title IX obligations and the safety of its student-athletes, it is imperative that coaches and staff are trained on the new Title IX regulations.

 

This training should include:

1) Definition of Title IX sexual harassment and when it falls under your program or activity;

2) How and when an employee can become on notice of sexual harassment;

3) Reporting obligations once on notice, including the interplay between reporting obligations under Title IX and mandatory reporting obligations pursuant to state law; and

4) A school district’s Title IX compliance obligations in responding to an allegation of Title IX sexual harassment and how athletics plays a key role in these obligations.

 

Complying with Title IX, however, is more than responding to incidents of sexual harassment. A large component of Title IX compliance also includes gender equity in athletics, pregnancy discrimination, and sex-based or gender-based discrimination.  Athletics staff should have a full understanding of the breadth of Title IX compliance as it relates to unique issues that arise in athletics.

 

Title IX Coordinators and school district athletics coaches and staff should attend ICS’ Title IX for Athletics Virtual Certified Training, where all of this and more will be covered.  This virtual training is live and interactive, and participants will have the opportunity to ask questions of the presenters to seek clarity.  In addition, training will include hypos to help put concepts into practice. Register today, as spaces are limited.

New Title IX Religious Exemption Regulations

November 24, 2020

 

The Department of Education issued a new rule, effective November 23, 2020, that “codifies how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX, 20 U.S.C. § 1681(a)(3).” This new rule will be codified in the Federal Regulations at 34 C.F.R. § 106.12(c), and includes the following non-exhaustive list of factors that an institution may rely upon to demonstrate that it is “controlled by a religious organization” for Title IX purposes:

 

(c) Any of the following shall be sufficient to establish that an educational institution is controlled by a religious organization, as contemplated under subsection (a), and is therefore eligible to assert a religious exemption to the extent application of this part would not be consistent with its religious tenets:

(1)  That the educational institution is a school or department of divinity.

(2)  That the educational institution requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled.

(3)  That the educational institution, in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.

(4)  That the educational institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices.

(5) That the educational institution has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.

(6)  Other evidence sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3).

 

Press release

 

Fact sheet