Author: legdx

February 9, 2023

The world of Title IX is full of policies, procedures, and (ever changing) regulations. I know sometimes it can feel like we are just doing our best to hold all the layers up at once while we try to manage the compliance components of our work. Who knew we needed to learn to juggle so quickly? On top of that, Title IX is not just the work of compliance; it is the work of people. Specifically, it is the work of people who may be hurting, confused, shocked, or experiencing varying other levels of mental health and traumatic reactions to their experiences with the Title IX incident and/or the Title IX process. So, how do we balance the work of compliance and the work of people?

First, we must acknowledge that accomplishing one does not jeopardize the other. We can be excellent in the work of compliance and excellent in the work of caring for people at the same time. Small decisions can be both people- and compliance-focused, like the time of day when you send an email, the efforts made to deliver certain updates in person when possible, or the space for questions at the end of a meeting. Choose small things when you can to accomplish both.

Second, we do not have to be trained mental health professionals to be trauma-informed in our Title IX work. Certain emotional, cognitive, and even physical reactions in the room can be directly related to trauma. Examples of trauma reactions could include:

• • • Difficulty concentrating or making a decision
    • Anger, sadness, numbness
    • Fatigue
    • Health concerns such as headaches or digestive problems
    • Sense of isolation (that no one understands)
    • Forgetfulness
    • Anxiety, fear

Filter the report through the lens of the person in front of you. Their reactions are telling you something you need to know. When we see the person and not just the report, we have a better chance of picking up on that message. Trust your gut and your instincts – person to person.

Lastly, treat yourself like a person too. You have a lot on your plate. You are trying to take care of people, policies, compliance AND your own lives outside of all that. It will be easier to achieve balance in your work when you build those habits for yourself in other areas of your life. I know, self-care is hard to come by. Think quality over quantity. What could you do for 5 minutes today that would restore something you are needing in your life? Once you think of it, actually do it!

This is hard work. I, for one, am thankful that we are all in this together. Take care of yourself today – you deserve it!

Blog by ICS’ newest team member, Case Manager and Consultant Brittany Gates. Before joining ICS, Brittany was most recently the Title IX Coordinator at a small private university for the past three years and brings to ICS a wealth of on-the-ground knowledge from serving in this role.

 

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, Director of Title IX Services

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

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, Founder of Institutional Compliance Solutions

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 4^th 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: https://icslawyer.com/supreme-court-is-asked-to-revisit-davis-causation-requirement/

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

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: 

• • • Voluntary Resolution Agreement 
    • Letter to Salem-Keizer School District 

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