Supreme Court to Hear Two Major Affirmative Action Cases

March 31, 2022

The Supreme Court has agreed to hear two major cases on “race conscious admissions programs” at Harvard University and University of North Carolina (UNC). Students For Fair Admissions (SFFA) sued Harvard University in 2018, claiming their admissions policies discriminated against Asian-American applicants. SFFA argued that Harvard utilized a “subjective standard” to evaluate personality traits including likeability, kindness, and empathy. Harvard, on the other hand, argued that race-conscious admissions policies are legal under Fisher v. University of Texas at Austin, a Supreme Court case that upheld such policies in 2016.

 

In the University of North Carolina case, SFFA claimed that the school gave Native American, Black, and Latino students preference and discriminated against white and Asian students. Like Harvard, UNC relied on Fisher and argued their policies “fostered educational diversity.” After the U.S. Court of Appeals ruled in favor of Harvard and UNC, the Supreme Court granted SFFA’s request for certiorari and will hear both cases together.

 

As these cases developed, affirmative action has become a highly debated topic for politicians and the public. According to a 2019 poll by PEW Research Center, 73% of Americans believe colleges and universities should not consider race or ethnicity in student admissions. In 2020, California voters did not overturn a state ban on considering race, gender, and ethnicity in public education and government employment. Proponents of affirmative action believe the Supreme Court’s conservative majority could endanger Fisher and reduce diversity on college campuses.

 

The Court will likely hear arguments in October 2022 and reach a decision in the 2023 Spring/Summer term. Supreme Court nominee Judge Ketanji Brown Jackson has said, if confirmed to the Court, that she will recuse herself from this case based on her previous and current affiliations with Harvard.

 

ICS provides a wide range of compliance services for institutions and school districts. Contact us for more information.

University Not Responsible for Off-Campus Assaults

March 24, 2022

In January, the 9th Circuit Court of Appeals held that the University of Arizona could not be held responsible for off-campus assaults in Brown v. State of Arizona et al. In 2016 Brown, a female student, reported that Orlando Bradford, a University of Arizona football player, assaulted her multiple times in his off-campus apartment. Brown sued the University of Arizona, claiming the school violated her rights under Title IX and was deliberately indifferent to the assault when the University allowed Bradford to stay on campus.

Brown argued that the University could have prevented her assaults because they had actual knowledge that Bradford assaulted other women on school property. In his dissenting opinion, Judge Fletcher argued that the University had “substantial control” because Bradford required University approval to live in off-campus housing and used school scholarships to pay for it. But the majority disagreed. Judge Forrest explained that under Title IX, universities are liable for student-on-student harassment where an “educational institution exercises substantial control over both the harasser and the context in which the [harassment] occurs.” Because Brown was not assaulted during a school activity, on school property, and did not visit Bradford’s apartment for a “school related purpose,” the court ruled that the University did not have substantial control over Bradford’s apartment. The 9th Circuit ultimately concluded that “while [the University] had exercised control over Bradford,” Title IX did not apply to “off-campus actions.”

ICS provides a wide range of Title IX compliance services, including its Community Access program and its live interactive trainings. Contact us for more information.

Violence Against Women Act Reauthorized in Historic Bipartisan Spending Deal

March 17, 2022

Last week, Republican and Democratic lawmakers passed a $1.5 trillion spending bill that would fund the government through the remainder of the fiscal year. In addition to providing aid to Ukraine and domestic federal programs, the bill dedicated $575 million to renew the Violence Against Women Act (VAWA) which was first signed into law in 1994 but expired in 2019. Under the bill’s health provisions, VAWA’s renewal will enhance existing protections for women from domestic violence, stalking, and sexual assault. The bill will also expand these protections to include protection for transgender, immigrant, and Native American women.

Section 1507 also directs the Secretary of Education, the Attorney General, and the CDC to develop an “Online Survey Tool for Campus Safety,” a “standardized online survey tool” to document student experiences with sexual violence, sexual harassment, and stalking on campus. The Survey Tool will also include survey “questions regarding whether students know about the institutional practices and procedures” related to dating violence, sexual assault and harassment, and to comment on an institution’s reporting and investigative practices. Section 1507(e) also states that the Survey Tool should be “readily accessible” to all students and those with disabilities.

Senate Majority Leader Charles E. Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) praised the legislation stating, “this long-overdue authorization will help protect survivors.” President Biden signed the bill into law on March 15 and promoted the reauthorization of VAWA at the spending bill signing, saying that the VAWA has “helped women rebuild their lives and make children a heck of a lot safer.” The White House also subsequently released a fact sheet about VAWA.

Need assistance with VAWA compliance? Contact us to learn more about how we can assist with your compliance needs.

NCAA Policy on Transgender Athletes

March 10, 2022

In 2021, the inclusion of transgender athletes in athletic programs was heavily debated at the federal and state level. This past June, the Department of Education expanded Title IX guidance to include prohibition on discrimination based on one’s gender identity and sexual orientation. On the state level, 27 states have introduced bills restricting transgender athletes from participating in school sports by limiting athletes’ play to teams that correspond with one’s biological sex. As of November 2021, nine have been made into law. At the collegiate level, University of Pennsylvania’s breakout swimmer Lia Thomas (a male to female student-athlete) has also stimulated the debate within universities and the NCAA surrounding transgender student-athletes. In this social and political landscape, collegiate athletic programs have called on the NCAA to provide formal guidance on the issue.

At the NCAA Convention in January 2022, the NCAA Board of Governors published its updated “Transgender Participation Policy.”  Under this update, the NCAA will mirror the International Olympic and Paralympic Committee’s (IOC) policies and will defer to each individual sport to determine whether an athlete is at a “disproportionate advantage against their peers given the nature of each sport.” If the sport has a national governing body, that body determines the guidelines for transgender athletes. If, however, the sport does not have a national governing body, that sport’s international federation policy should be followed. In the event the sport does not have an international federation, the latest IOC policy should be followed. The IOC’s 2021 policy on Fairness and Non-Discrimination follows this sport-by-sport policy and adds that an athlete may be evaluated to determine any competitive advantage. However, no athlete should be “targeted” for testing “because of, or aimed at determining, their sex, gender identity, and/or sex variations.”

The NCAA also provided updated guidelines regarding hormone replacement therapy for transgender student-athletes. Starting in the Winter 2022 championship season, transgender student-athletes must document “sport specific” testosterone levels four weeks before championships. In the 2022-2023 academic year, transgender student-athletes must provide documentation of testosterone levels at the start of the season, six months after, and four weeks before championships. This would replace the NCAA’s 2011 policy that required transgender women (male to female) to have at least a year of testosterone suppressants to compete.

According to the NCAA, about 80% of U.S. Olympians are current or former college athletes. Therefore, aligning the NCAA and the IOC is aimed at standardizing conduct between the organizations and providing consistency for student-athletes.

ICS provides a wide range of compliance services for institutions and school districts. Contact us for more information.

Common Mistake: Formal Grievance Process Required

March 3, 2022

The most common mistake we see at ICS when institutions and districts are responding to allegations of Sexual Harassment under the 2020 Title IX Regulations is the failure to follow the Title IX formal grievance process for allegations that rise to the level of Sexual Harassment and fall within the program or activity. The regulations state:

A [district or institution]’s response must treat complainants and respondents equitably by… following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent.

Thus, a district or institution cannot circumvent the Title IX process by utilizing a student or employee discipline policy or procedure when the allegation is any form of Sexual Harassment under the Title IX Regulations. We understand that this creates confusion, slows down the process, and is counterintuitive to how other matters are investigated and resolved, especially in the K-12 setting; however, utilizing another process to discipline Title IX Sexual Harassment, or circumventing the Title IX formal grievance process by charging a respondent with another type of violation for the same behavior is considered “deliberate indifference” under the regulations. This is explained in the preamble to the regulations on page 668. The basis for the requirement of the use of the formal grievance process, per the preamble, is rooted in fundamental rights to due process.  Specifically, page 668 of the preamble states the basis for the use of the formal grievance process:

[T]he lack of clear regulatory standards [previously] has contributed to processes that have not been fair to the parties involved, have lacked appropriate procedural protections, and have undermined confidence in the reliability of the outcomes of investigations of sexual harassment complaints.

Further, the preamble at page 669 states:

Respondents also should not be punished for allegations of sexual harassment until after a grievance process that complies with § 106.45, as such a grievance process provides notice of the allegations to both complainants and respondents as well as a meaningful opportunity for both complainants and respondents to be heard.

Thus, it is imperative that Title IX Coordinators not discipline for Title IX Sexual Harassment that falls under the school’s program or activity without following the prescribed requirements in the Title IX formal grievance process.

In real time, this works in the following manner:

1.  Receive report of Sexual Harassment.

2. Meet with the Complainant to provide supportive measures, explain the Title IX formal grievance process, provide options including the filing of a formal complaint, and explain the reasons it may be (or become) necessary for the Title IX Coordinator to sign a formal complaint even if the Complainant does not.

3. If there is a formal complaint and it is not required to be dismissed, the prescribed formal grievance process, including notices, investigation with 10-day review periods, and resolution (live hearing for higher education and question and answer for K-12) must be utilized to discipline the student or employee.

While we agree that this is cumbersome and takes a substantial amount of time, it is also required. Thus, Title IX Coordinators should conduct an evaluation of each report to determine which process is appropriate for resolution. For more on the difference between a report and a formal complaint along with the way to approach the initial meeting with a complainant, see https://icslawyer.com/putting-policy-into-practice-series-blog-post-1/.

ICS provides a wide range of Title IX compliance services, including its Community Access program and its live interactive trainings. Contact us for more information.