OCR Announces Resolution of Title IX Sex Discrimination Case in K-12 Athletics

November 17, 2022

This month, the Office for Civil Rights announced the resolution of a complaint that alleged “inequitable athletics access” for girls’ athletic teams at Salem-Keizer School District in Oregon. The complaint stated that the District discriminated against female students in its interscholastic athletics programs by providing unequal access to facilities, equipment, and coaching resources.  In its investigation, OCR determined that the boys’ baseball team had “superior playing fields, dugouts, bullpens, fencing, landscaping, bleachers, batting cages, and storage compared to what is provided to [the] girls’ softball team.” There was also evidence that the boys’ baseball teams were provided with complete uniforms while the girls’ softball teams only had “uniform tops.”  Lastly, OCR received information that the girls’ softball coach was not provided with a prep period at the end of the school day, forcing the coach to prepare fields during practice rather than being available to coach during those times. In contrast, the boys’ baseball coach was provided a prep period and had more availability to coach the players. 

Under the regulations for Title IX, a recipient must provide “equal athletic opportunity for female and male students with respect to the provision of equipment and supplies” and “equal athletic opportunity for male and female students regarding the opportunity to receive coaching.” To determine compliance with these provisions, the OCR assesses a variety of factors including but not limited to the quality, quantity, and availability of equipment and the availability of part-time and full-time coaches.  Ultimately, OCR determined that the District’s current athletic practices discriminated against female athletes and violated Title IX. 

Under the voluntary resolution agreement, the District must perform an inventory and assessment of all “competitive facilities” and “coaching opportunities” and present this assessment to OCR within 120 days. Once this assessment is approved, the Department will create a “corrective action plan” to address “any inequities the district identifies” and meet OCR’s specified benchmarks for reporting its progress. 

For more information about OCR’s determination and the Voluntary Resolution Agreement, see the resources below: 

ICS provides a wide range of Title IX compliance services, including for Athletics. Contact us for more information. 

Takeaways from the Title IX NPRM Public Comments

November 11, 2022

In response to the release of the long-awaited Title IX NPRM this summer, the Department of Education received approximately 240,000 public comments by the September 12th, 2022 comment period submission deadline. The Department has now released for viewing nearly all of the comments received. To identify the public reaction to the NPRM, our team has identified the top ten things to know about the public comments. 

Sex v. Gender Identity: The public comments demonstrated that SOGI issues remain a controversial subject in schools and our culture overall. The proposed regulations reiterate the Biden administration’s statement that gender identity is protected under Title IX.  The NPRM also expanded protections against sex-based harassment to include sexual orientation and sex stereotypes.  A number of comments, particularly some of the most recent, believe including gender identity will negatively impact Title IX protections for cisgender women. Others praised the Biden administration’s recognition of gender identity and believe the NPRM is an important step for the LGBTQ+ community. Lastly, several commenters criticized the NPRM for not addressing transgender participation in athletics. 

Some commenters critiqued the NPRM’s training requirements on the issues of sexual orientation and gender identity and allege they violate First Amendment rights. Noting recent cases where teachers declined to use a student’s preferred name or pronouns, critics of the NPRM believe the rule forces institutions to choose between Title IX and safeguarding students’ and staff’s Constitutional rights.  

Live Hearings: Quite a few commenters criticized the proposed rule that makes live hearings optional. Without this requirement, some fear that parties will not have the same access to information and that the process will favor complainants over respondents.  Others also believe that this will conflict with state or circuit laws that address Due Process rights for suspension or expulsion and could expose institutions to legal liability. There were other commenters who were concerned that the provisions regarding an advisor’s role in a live hearing would make hearings overly adversarial. Some Higher-Ed institutions also expressed frustration over the proposed mechanics of conduct hearings (what questions can be asked, etc.). Overall, many commenters felt like the proposed regulations would complicate hearing and deciding Title IX matters. 

Single Investigator Model: Commenters had varying opinions about the proposed return to the single investigator model. In its public comments, the American Association of University Professors cited the Department’s reasoning for removing the model in 2020 and fear that reviving it will harm students’ constitutional Due Process rights and protections under Title IX.  Others stated that the single investigator model would increase bias, prejudice, and burden institutions with appeals.  Some commenters stated that while they would be open to the proposed model, it would require significant training and support on the ground. K-12 institutions also found that this model would add to the existing challenges their Title IX teams face. 

Definitions and Evidentiary Standards: Commenters were generally in favor of the Department expanding the definition of sexual harassment to include conduct that is “sufficiently severe or pervasive,” a change from “severe, pervasive, and objectively offensive” standard.  On the issue of evidentiary standards, a number of commenters, including several U.S. senators, urged the Department to relook at the differing standards of preponderance of the evidence versus clear and convincing. 

Pregnancy Discrimination: The proposed rule notably enhanced protections for pregnant and parenting students. While commenters welcomed the additional guidance, many asked the Department to specify “institutional requirements” given the Dobbs v. Jackson Women’s Health Organization decision and resulting state laws. In its open letter, the American Council on Education even asked the Department to issue a second and separate NPRM on this issue to avoid “unintended consequences or legal ramifications for pregnant students or institutions.” 

Protections for LGBTQ+ Students: While many commenters commended the Biden administration’s stance on LGBTQ+ inclusion in education, some commenters believe the definitions of “sex stereotypes” are too vague to offer sufficient protection for students. These commenters were concerned that a vague definition may allow schools to interpret this definition for themselves, expose schools to additional liability, and not protect LGBTQ+ students. In its comment, the Religious Exemption Accountability Project condemned the Department for not removing or proposing meaningful changes to the religious exemption.  Other commenters also urged the Department to require schools offer more transparency to students, faculty, and the greater community regarding an institution’s status under the religious exemption. One comment said that students who have “prior notice of Title IX exemptions” could make more informed choices “about their education and safety.” 

Concerns About Implementation, Particularly for K-12 Schools: Among K-12 administrators, several commenters expressed concern that the proposed regulations, if finalized, would be more burdensome to implement.  One commenter felt that a new set of regulations two years from the 2020 Title IX regulations would overwhelm schools that are readjusting from the pandemic and already struggling to comply with the current regulations. In its comment, the School Superintendents Association (AASA) said that the training requirement for all employees would “post a time and resource burden” on school districts. Other commenters reiterated this concern and urged the Department to commit additional resources so districts can train their staff virtually and in person. 

Questions About Retroactivity: In its comment, the Association of American Universities urged the department to clarify its stance on applying regulations retroactively. The Association pointed out that the NPRM is “silent on critical questions” about whether the broader definitions would apply “on a going-forward basis” or retroactively so institutions must respond to conduct that was not covered by prior Title IX regulations.  Citing pending litigation, the Association argues that this would open institutions to continuous litigation and create an additional burden for Title IX offices and complicate training. 

Quid Pro Quo Concerns: Some commenters were concerned that the Department’s definition of “aid, benefit, or service” under quid pro quo was too narrow.  Specifically, commenters noted that the examples the Department provided seemed to limit “aid, benefit, and service” within academics, thus excluding extracurriculars.  Including extracurricular activities, they state, would be in line with other aspects of Title IX that cover activity outside of the classroom. 

Reporting Requirements: Finally, commenters asked the Department to clarify its reporting requirements for alleged Title IX conduct. Under the proposed regulations “any employee who has responsibility for administrative leadership, teaching or advising” must notify the Title IX Coordinator when the employee has information about the student being subjected to conduct that qualifies as Title IX sex-discrimination. Victim advocacy groups, in particular, state that this would have a “chilling” effect on a complainant’s ability to share their story and maintain confidentiality. Other commenters also believed that if finalized, this would make the regulations less trauma-informed. 

The Department is expected to take the many public comments into account while creating the final Title IX rule, to be released likely sometime in 2023. For all the latest on the 2022 Title IX NPRM, bookmark ICS’ designated NPRM page.

When Your Empathy Tank is Empty…

November 7, 2022

Title IX professionals, we give our all…literally, our ALL, to be on, tuned in, attentive and compassionate. It’s an important part of our job. Well, actually, it IS our job. We strategically plan next steps for safety, comfort, and access. We are thinking three steps ahead while simultaneously remaining in the moment with a person who experienced trauma or has been accused of causing trauma. We handle the panic, tears, anger, frustration, and fear of the person in front of us with grace and poise.  We remain calm and controlled when being yelled at. We support, provide, modify, and make things happen to accommodate the parties, their families, their advisors, etc. There is a whole lot of give…but we wouldn’t have it any other way.

Regardless, it is exhausting. We don’t necessarily feel it in the moment, but later, oh later, it hits HARD. When we have a moment to breathe, we crash… at least I do. It is as though my empathy tank is empty. I cannot listen to one more thing. I cannot make one more decision. I absolutely cannot engage in small talk with an empty tank. I come across as short, direct, and to the point with those I love, care about, and respect. I need time to refuel. I am not mad, sad, angry, or annoyed. I just do not have one more ounce of empathy to give, but there is still a job to be done. I become focused on the tasks at hand and push through, but gosh this work is hard!  I am tired. I know you are too.

Let’s do a better job of refueling the tank. Take breaks. Respond to emergencies immediately but take the urgency out of everything else. Let’s get it right, not rushed. Let’s give grace and be slow to anger or to take offense.  Let’s support each other and be mindful that when we run on E for long enough, we run out. There is nothing left. We don’t want to lose our amazing Title IX professionals, so let’s take care of ourselves and each other!  

Betsy Smith
Betsy Smith, Director of Title IX Services

Supreme Court Hears Arguments on Affirmative Action

November 3, 2022

This week, the Supreme Court heard oral arguments in two cases on affirmative action at Harvard University and University of North Carolina. Students for Fair Admissions (SFA) sued Harvard University in 2018, claiming that their admissions policies discriminated against Asian American applicants. In its suit against the University of North Carolina, SFA alleges the school favored Black and Latino students and excluded White and Asian American Students. Both schools defended their programs, arguing they were lawful under Fisher v. University of Texas at Austin, a seminal Supreme Court case that upheld “race conscious admissions programs.”

The arguments before the Court focused primarily on two areas- whether “educational diversity” can be achieved without taking race into consideration, and if there is ever a time colleges and universities should stop utilizing race in its admissions process.

Lawyers for the colleges argued that educational diversity is essential for the development of well-rounded students and future leaders, and that a diverse student body contributes to a higher sense of belonging and engagement among all students. Justice Sotomayor and Justice Kagan said that educational diversity is one of America’s greatest achievements and must be protected. They also observed that for some students, there is a direct relationship between one’s race and life experience.  Justice Sotomayor said, “If you’re Black, you’re more likely to be in an underresourced school. You’re more likely to be taught by teachers who are not as qualified as others. You are more likely to be viewed as having less academic potential.”

Several Justices pushed the lawyers to provide a clearer definition of “diversity.” Justice Thomas asked, “I have heard the word diversity quite a few times and I don’t have a clue what it means… It seems to mean everything for everyone.” Justice Alito questioned the use of the term “underrepresented minority” and expressed concern that “granting advantages to one group necessarily disadvantages another.”  When it comes to taking a student’s diversity into account in college admissions, some Justices also questioned the “boxes” that ask students to select a racial identity on the Common Application.

Lawyers on both sides spent a great deal of time discussing how to balance acknowledging a student’s racial background and avoiding discriminatory practices. When hearing arguments in the UNC case, Justice Jackson and Justice Barrett asked whether students’ essays that describe lived experience and address racial identity will be considered if affirmative action is prohibited.  In response, SFA stated that such an approach would be fine, but clarified that race cannot be viewed in isolation. “What we object to is a consideration of race and race by itself.” Personal essays, on the other hand “[tell] you something about the character and the experience of the applicant other than their skin color.”

Justices were critical of Harvard’s admissions process that scored Asian American applicants a lower “personal rating” than other applicants. When asked whether this qualified as discriminatory, Harvard lawyers stated that that rating was attributed to “weaker teacher and guidance counselor recommendations” and that there was no evidence of discrimination.

The Court also probed attorneys to discuss the potential of a race-neutral approach to admissions. Justice Thomas asked both universities why race-neutral approaches would not produce educational diversity. Other Justices approved of SFA’s proposed alternative to race-based admissions policies such including preferences based on socio-economic status, grade point average, and eliminating legacy advantages at colleges that have historically favored white and wealthy students.

Finally, there was significant discussion on whether there is a time limit on affirmative action. Lawyers for both sides cited Grutter v. Bollinger, a 2003 Supreme Court decision in which the Court approved “holistic admissions programs.” Under Grutter, colleges and universities were permitted to consider an applicant’s race as “one factor to achieve educational diversity.”  In the majority opinion, Justice O’Connor famously stated that “25 years from now, the use of racial preferences will no longer be necessary.” Since this case is being heard 19 years after Grutter, the Court challenged the attorneys to identify a potential “end date.” Lawyers for Harvard said it was unable to identify a clear end date, while Justice Kavanaugh seemed to approve an end date of 2028 or 2029.

The Court is expected to release its opinions by June of 2023.

Two UCLA Students Allege Rampant Hazing and Sexual Assault at Summer Job

October 27, 2022

This month, two UCLA students filed suit against the University of California Board of Regents alleging they were subjected to hazing and sexual assault while counselors at Bruin Woods Camp in 2021. 

According to the complaint, the two plaintiffs were hired to work at Bruin Woods Camp – a summer program run by UCLA for alumni at Lake Arrowhead. The plaintiffs allege that they were sexually assaulted by returning counselors and were pressured to participate in “hazing traditions.” These traditions included various forms of physical and verbal abuse, “sensory deprivation, forced nudity, and coercive drinking games.” The complaint also states that these “traditions” have taken place for decades and that the camp promotes and encourages a hostile work environment. 

While at camp, the plaintiffs allege that they were discouraged from communicating with anyone outside the camp and were often “chastised” when seen communicating with loved ones. During the camp session, the plaintiffs state that they were forced to participate in additional traditions that were “demeaning” and “humiliating.” One such tradition included returning counselors luring new counselors into the woods, placing pillowcases over their heads, and tying their hands to trees until they lost circulation. The plaintiffs also state that after they lost circulation or passed out, they were brought to a room where other counselors verbally abused them.  Plaintiffs left the camp one week into the eleven-week summer. 

Once the plaintiffs returned from camp, they reported their experiences to UCLA’s Title IX Office and retained counsel. A UCLA spokesperson stated that “the university has a zero-tolerance policy for sexual harassment, sexual violence and hazing.” UCLA has also stated that the school’s Title IX Office is processing the matter in accordance with its policies and procedures. In their suit, the plaintiffs allege negligence, civil rights violations, assault and battery and intentional infliction of emotional distress and seek $50,000 in damages. 

ICS offers Title IX training for specific groups including, but not limited to, athletics, faculty, staff, administration, campus police, Greek life, and students. We can provide the training or assist you in designing a custom program that can be utilized for your campus. Contact us if you would like more information.