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Title IX Roundup

September 13, 2021

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By: Lily Crespo Esq.

Today, we examine some Title IX cases across the country. This time last year, schools had just launched new, 2020 regulations-compliant Title IX policy, all while preparing to start a second semester disrupted by a global pandemic.  In the year that has passed, students have (largely) returned to schools, and a new administration has moved into the White House. The Department of Education signaled its intention to review and revise the 2020 Title IX Regulations, and then it issued a new Q&A demonstrating that it intends to enforce those regulations as written (for now). OCR clarified, however, that (in contrast to the prior administration’s position) it is the Department’s position that Title IX prohibits discrimination against gay and transgender students. One court has ruled that a school should have applied the due process protections of the 2020 regulations to Title IX conduct which occurred prior to the effective date of the new regulations, and yet another recently ruled that one of those due process provisions (the exclusion of statements not subject to cross-examination) is arbitrary and capricious.

NYC Schools Reaches $700K Court Settlement With Student Sex Assault Survivors As Biden Administration Rewrites Title IX Rules The New York City Department of Education will make sweeping changes to the way it investigates sexual assault complaints after reaching a major court settlement with four female students who allege officials failed to protect them from sex-based violence, including rape.

The New York City district is among multiple urban education systems to face charges that they mishandled or ignored students’ complaints of sexual assault — a practice groups representing victims argue has gone on for years. The settlement, announced Tuesday by the students’ attorneys at Legal Services NYC, landed as the Biden administration undertakes a major rewrite of Title IX, the federal law prohibiting sex-based discrimination in public schools, and backtracks on Trump-era rules that bolstered the due-process rights of students accused of sexual misconduct.

Educator takeaway: Every student deserves to feel safe, welcomed and affirmed in their school and there should be zero tolerance for sexual and gender-based harassment of any kind. Schools should aim at making it easy to report harassment and provide robust trainings for so that the strongest safeguards are in place for all students, and especially students with disabilities.

Outrage Over Gender Identity Section of St. Paul Catholic High School Handbook There is now outrage over a school handbook, which includes a section on gender identity. St. Paul Catholic High School’s new rules for the year say St. Paul’s will “accept and relate to students according to their God-give biological sex.”

Educator takeaway: These kinds of statements in school policy can invite legal challenges and public relations firestorms. Speak with legal counsel BEFORE implementing any language that goes to defining gender identity.

Statewide Guidance on Preferred Names, Pronouns in Utah Schools Up for Discussion It wasn’t on the agenda, but it’s what a large portion of parents talked about during public comment at Thursday’s Utah State Board of Education meeting. Parents and others showed up in person and via Zoom to weigh in on the topic of preferred names and pronouns in schools.

Parents and educators iscussed a draft of a Utah State Board of Education guidance document with the title “Understanding Gender Identity to Better Support Students”. The eight-page document talks about laws, policies, and best practices for educators when it comes to students’ preferred names and pronouns in the classroom.

Educator takeaway: When addressing hot topics like this, educators need to keep their eye on the end goal. Students should feel included in the classroom and able to find their full potential to strive academically. If an educator has personal objections to using pronouns, speak with legal counsel and consider next steps to help transgender, non-binary, and gender diverse students and employees feel respected and included.

Supreme Court Could Hear Transgender Student Bathroom Case, Experts Say A federal appeals court this week vacated a lower court’s ruling in favor of a transgender student’s right to use the bathroom of his gender identity at school. Experts say the appeals court’s move could lead the Supreme Court to take up the issue sometime soon.

  • The 4th U.S. Circuit Court of Appeals, based in Richmond, Va. — first in 2016 and again in 2020 — ruled in favor of Gavin Grimm, a transgender student who sued the Gloucester County School Board in Virginia over a policy that barred him from using the boys’ restroom. The school board appealed to the Supreme Court, but the court decided in June, without comment, that it wouldn’t take up the case. On Thursday, the school board agreed to pay $1.3 million for Grimm’s legal costs.
  • The 7th Circuit, based in Chicago, ruled in favor of a trans student in a similar case in 2017. The 3rd Circuit, in Philadelphia, in 2018 and the 9th Circuit, in San Francisco, last year also rejected arguments by cisgender students that having to use the bathroom with transgender students violated Title IX and their rights to privacy.
  • If the 11th Circuit breaks that streak of wins for trans students and rejects both of Adams’ arguments — that the bathroom policy is discrimination prohibited under Title IX and violates the equal protection clause — then there would be a direct conflict in the circuit courts’ decisions on the issue, and that would be a pretty strong argument for certiorari, assuming Lambda Legal and the client ask for it, which they might not.

Educator takeaway: Given the flip flopping and constant flux exhibited by the circuit courts regarding transgender bathroom use, school admin need to carefully consider policy updates and requirements with the help of legal counsel.

Michigan’s OutCenter Rolls Out Back-to-School Programming To Help Struggling LGBTQ+ Youth There’s no denying the past school year (and-a-half) was challenging for many students. But a new report from the Department of Education’s Office of Civil Rights notes that LGBTQ+ youth experienced stress unique to being queer.

  • “The closing of K-12 [schools] … may confine LGBTQ young persons to traumatic and possibly abusive environments,” read the report. “Many LGBTQ youths cannot be their authentic selves at home because they have not disclosed their sexual and gender identities or because they were not met with support or acceptance from their parents and families.”

Educator takeaway: Schools considering the implementation of Gay/Straight Alliances (GSAs) may have questions about parental consent issues. GSAs provide support to students dealing with harassment by virtue of their actual or perceived sexual orientation and help fight discrimination in public high schools. Courts have nearly unanimously overturned direct restrictions as violations of both the EAA and the First Amendment. Indirect restrictions, such as those now in force in Utah and Georgia, will soon face similar legal challenges. Parental consent policies do have the potential to violate the First Amendment right to freely associate for expressive purposes. Speak with legal counsel if you have questions about GSAs and parental consent.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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