Support First….

January 26, 2023

Always, ALWAYS, support first.

I cannot even express how many times I find that school districts and institutions are not offering the basic supportive measures to provide access to Complainants and Respondents in Title IX related matters. This may be because they aren’t aware, believe they “can’t”, are receiving internal pushback, or a variety of other reasons. However… regardless of the reason, it’s a problem.

This is me yelling from the rooftops! ACCESS to an individual’s education program or activity, free from discrimination, is the absolute fundamental basis of Title IX.  SUPPORT provides that access. Seriously. That’s it. Support First. Okay, it’s not quite that easy, but I’m here to explain it. Let’s get to work!

When I say support first, I mean it both literally and figuratively. It should be the first thing that comes to your mind, the first action items to tackle, and support should remain at the forefront of your mind from start to finish.  You must be willing to think creatively, develop systems, impact campus/district programs, move mountains, stand your ground, and stand up when the parties can’t advocate for themselves. All of this can be accomplished kindly, but firmly, within your institution or district. You should also do this discreetly, without disclosing the personal lives or issues of the parties you are working with.

If your students and employees are not supported through the process, the entire process may ultimately be ineffective. You may have parties leave, pre or during investigation, who if provided appropriate supportive measures, would otherwise have graduated from your district or institution. You may have others who want nothing more than to finish their education, without investigation or any type of process, but they can’t seem to do that because they are afraid, anxious, or struggling academically and socially because of a Title IX related concern.

Don’t get me wrong, the grievance process is important. However, it is complicated, and half the battle is helping parties navigate the complexities while continuing with their education.

So, you ask, how in the world do I provide “tailored” supportive measures for each individual? It takes a village. The good news is that you are the leader of that Title IX village. Here is a quick checklist to help you:

1. Get started: Start talking about supportive measures with staff and faculty. Make sure that the first time they hear you talking about supportive measures is NOT when you are trying to implement such measures!

      • Explain Title IX.
      • Explain the purpose of the law (access).
      • Explain the requirement of supportive measures. What are they? Why would you ask for them?
      • Explain that you likely will not be able to give details about the situation to protect the student or employee’s privacy.
      • Explain what you may be asking for. Class changes, seating charts, re-taking of an exam or assignment, excused absences, virtual work/learning, work/learning from home, changes in living arrangements, financial aid waivers, parking changes, extracurricular changes.
      • Explain that you may be asking for something that you haven’t even thought of yet, but that if you ask, it’s important.

2. Get Creative: In order to make the supportive measures work, you have to get creative. You are not the expert in all the things or programs. So do not try to be. Do not do this alone. Meet with teachers, directors, and staff to understand how their areas work when you are trying to support the students and employees they work with. Ask questions. Brainstorm together. Talk with the parties. Challenge yourself. This is not a one size fits all thing. Every single day, I learn new ways to support students and employees. It’s exhausting, but also empowering. This is a giant part of how you make a difference in the lives of the individuals going through the Title IX process. Your impact is critical.

3. Lead with CAN: How CAN we make this work? How CAN I provide this support? How CAN I make this change? I find that Title IX Coordinators often lead with (or are met with), “we can’t do that at this school” or “we don’t do that,” or even, “we only do that for disability accommodations.”

I have also found that if you meet with the person who is saying “no” or “that’s not how we have always done it” and provide them with the solution to make it work along with the basis for your request, you will be more successful. Don’t present someone with a problem without helping to find the solution.  Don’t be afraid to ask again. Don’t be afraid to schedule a coffee to discuss it. Don’t be afraid to try. Honestly, your parties will appreciate you for that and realize that you aren’t out to get them, but instead help them…all of them.

Obviously, the support is not, nor should it be, dependent upon the outcome of an investigation, hearing or resolution. It occurs with or without the grievance process. Your job is to provide access in an equitable manner.

Done well, this is literally the most impactful part of Title IX. It is where you get to shine and help keep parties moving forward through a challenging time in their lives. Support first. You’ve got this!

Betsy Smith
Betsy Smith, Director of Title IX Services

ICS provides a wide range of Title IX compliance services; contact us for more information.

Title IX Professionals – The Close of 2022 and Measuring Backwards

December 15, 2022

As the CEO of ICS, I am not only a lawyer – I am also a business owner. I recently listened to a podcast that explored the concept of “measuring backwards” that really resonated with me as we say goodbye to 2022.  The podcaster encouraged listeners to take some time at the end of each year to reflect on our accomplishments, the challenges we faced, and growth we experienced that year- to measure our year backwards. Each year I sit down and reflect on all that ICS, our clients, and Community Partners have accomplished, and this year I intend to do the same with an eye towards the impact.   

Title IX professionals, it is easy to end 2022 with anxiety as we look forward to 2023 with the new Title IX regulations on the horizon, matters that transfer over to the new year, and the often relentless amount of work to keep your school or institution in compliance.  I encourage you, however, to take a moment.  Even if it is 30 minutes. Use that time to reflect on all you have accomplished in 2022, looking beyond the numbers and stats to the impact you have had on students, staff and/or your team. This can serve as a reminder of the “why” behind the work you are doing and breathe life into your goals for the upcoming year.

Be safe and stay well this holiday season.  I look forward to seeing you in 2023 in an ICS training or conference.

Courtney Bullard

Courtney Bullard, Founder of Institutional Compliance Solutions

SCOTUS Declines to Hear a Significant Title IX Liability Case on Causation

December 8, 2022

Last month, the Supreme Court of the United States declined to hear Doe v. Fairfax County School Board, after Fairfax had asked the Court to review the case in December 2021. Originally filed in 2018, Doe states that she was sexually assaulted by a male student during a high school band trip in 2017. Doe further states that she did not report the incident to staff while on the trip because she was traumatized. However, Doe subsequently told her friends what happened, and the incident was reported to school employees, including the band director. Doe alleges that the school board “failed to properly investigate the incident” because Fairfax did not notify Doe’s parents at the beginning of the investigation or explain her rights under Title IX. Furthermore, Doe states that the school’s deliberate indifference caused her “emotional, academic, and physical harm.”

In response, Fairfax argued that the encounter “was not sexual assault” and that the school took several appropriate steps to address the incident.  At the initial trial in 2019, a jury found that Doe had been sexually harassed and that she was “deprived” access to her education. But the jury decided that the school was not liable under Title IX because they determined that the school did not have “actual knowledge” of what happened on the trip. After this verdict, Doe appealed to the 4th Circuit Court of Appeals, arguing that the evidence strongly supported imposing liability. The Court of Appeals reversed and remanded the case for a new trial.

Last year, Fairfax asked SCOTUS to intervene in the case, but their petition was recently denied, and Doe’s new trial will proceed. According to Doe’s lawyer, Doe is “ready for a new trial and is confident that she will prevail.” In an interview with the Washington Post, Doe’s legal team expressed skepticism on whether Fairfax will want to “risk a loss” and “force a young survivor” to relive her trauma. In its statement, Fairfax was critical of SCOTUS’ decision and said the Court was leaving an “important legal question unsettled” regarding “whether schools can be sued in private lawsuits under Title IX when it is undisputed that their actions have not led to any harassment.”

For an additional discussion about the causation aspects of this case, see also the previous ICS blog:

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

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.