Legal Update of Title IX Issues
August 3, 2021
Critical Legal Issues Seminar Region 4
Ryan Newman Elizabeth Humphrey Thompson & Horton LLP 3200 Southwest Freeway
Suite 2000
Houston, Texas 77027
Title IX of the Education Amendments of 1972
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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. 1681
Federal agency responsible for enforcing federal discrimination laws, including Title IX
A complainant may file a complaint with OCR and initiate an investigation
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OCR may independently initiate a “compliance review”
September 22, 2017 – DeVoss rescinds Obama era guidance and issues Q&A on How to Handle Campus Sexual Misconduct
November 29, 2018 – Issued proposed rules and began process of holding hearings to receive public comment
May 6, 2020 – U.S. Department of Education Office of Civil Rights issued final regulations
August 14, 2020 – New Regulations went into effect
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January 15, 2021 – OCR Questions and Answers Regarding the Department’s Title IX Regulations
March 8, 2021 – Biden Issues Executive Order requiring the Secretary of Education to:
conduct a comprehensive review of Title IX regulations
“consider suspending, revising, or rescinding” regulations that are inconsistent with administration’s non-discrimination policy – or begin the pro
April 6, 2021 – OCR announces intent to issue a forthcoming Q&A on its interpretation of the regulations and to hold public hearings in advance of anticipated revision of the regulations
June 7-11, 2021 – OCR holds virtual public hearing on Title IX
June 16, 2021 – OCR issues Notice of Interpretation regarding the enforcement of Title IX in light of Bostock v. Clayton County
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July 20, 2021 – OCR issues updated Questions and Answers on the Department’s Title IX Regulations
Some changes to the regulations include:
New definition of sexual harassment
Informal and formal complaint processes
Due Process and Notice Requirements
Supportive measures required for both parties
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Appeal options
A district’s responsibilities are triggered when any district employee has
“actual knowledge” of alleged harassment.
Notice of sexual harassment or allegations of sexual harassment to:
Title IX coordinator
Official with authority to institute corrective measures;
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Any employee of an elementary and secondary school
Disciplining Sexual Harassment: 2 Pathways
Title IX Sexual Harassment
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the district’s education program or activity
Quid Pro Quo – An employee conditioning an aid, benefit, or service of the district on an individual’s participation in unwelcome conduct
Sexual assault, dating violence, or stalking, as these terms are defined in
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federal law
Disciplining Sexual Harassment: 2 Pathways
Title IX Sexual Harassment
Must occur in the United States
Location, events, or circumstance where the district exhibits substantial control over both the alleged harasser and the context in which the harassment occurred
Off-campus and online sexual harassment may not be considered Title IX but may be protected under state law
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Regulations apply to locations that are part of school operations, including remote learning platforms
Disciplining Sexual Harassment: 2 Pathways
Title IX Sexual Harassment
Right to written notice of the allegations before any meeting
Right to have an advocate present at all meetings
Investigation by impartial trained investigator (who may or may not be the Title IX Coordinator)
Right to inspect and respond to evidence prior to finalization of the report
Right to review and respond to report prior to final decision
Written decision by impartial Decisionmaker (who cannot be the Title IX Coordinator or the Investigator)
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Right to appeal to an impartial appeals officer (who cannot be the TIX Coordinator, the Investigator, or the Decisionmaker)
Disciplining Sexual Harassment: 2 Pathways
Standard for Non-Title IX Sexual Harassment
Conduct that is so severe, persistent, or pervasive that it:
Affects or a student's ability to participate in or benefit from the district’s educational program or activity
Creates an intimidating, threatening, hostile, or offensive educational environment
Interferes with the student's academic performance
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Otherwise adversely affects the student's educational opportunities
Once the school has actual knowledge of sexual harassment or allegations of sexual harassment, the Title IX Coordinator must inform the complainant (alleged victim), among other things, about how to file a formal complaint.
Either the complainant (or parent/guardian) or the Title IX Coordinator can sign a formal complaint.
The formal complaint is what triggers the grievance process.
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Upon receipt of a formal complaint, school must provide the parties written notice of, among other things, the school’s grievance process.
The procedures used cannot themselves discriminate on the basis of sex and must apply equally to all parties.
Only non-disciplinary, non-punitive supportive measures can be be offered to the parties before resolution Exception for Emergency Removal/Admin Leave
Treat complainants equitably: provide necessary remedies to a complainant any time a respondent is determined to be responsible for sexual harassment.
Treat respondents equitably: do not impose discipline until there is a finding of responsibility upon completion of the prescribed formal grievance process.
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Final remedies, upon a finding of responsibility, may be punitive or disciplinary.
34 C.F.R. § 106.44(c): Schools are not precluded from “removing a respondent from the recipient's education program or activity on an emergency basis, provided that the recipient undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.”
To remove a student respondent on an emergency basis, pending the grievance process, the school must complete an individualized safety and risk analysis.
May remove a student if determined that the respondent poses an immediate threat to the health or safety of any student or other person.
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Must provide respondent notice of removal and an immediate opportunity to challenge the removal.
Employees may be placed on administrative leave.
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Policy must also describe the range of supportive measures available through the school to complainants and respondents.
No conflicts of interest or bias: the Title IX Coordinators, investigators, decisionmakers, and anyone designated to facilitate an informal resolution process must be free from conflicts of interest or bias:
Against complainants and respondents generally; or,
Against the particular complainant or respondent.
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Prohibition against predetermining the outcome
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Grievance procedures must include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
Schools must objectively evaluate all available evidence.
Consider both inculpatory and exculpatory evidence.
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Avoid credibility determinations merely based on a person’s status as a complainant, respondent, or witness.
The school must choose and specify the standard of proof that will apply to determine responsibility for all formal complaints of sexual harassment (including complaints against both students and employees):
Preponderance of the evidence
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Clear and convincing evidence (more onerous)
A school’s grievance process must not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
Attorney-client privilege
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Doctor-patient/psychologist-patient privilege
There must be a reasonably prompt time frame established for the conclusion of the grievance process, including appeals and informal resolution.
Should allow for reasonable delays and extensions based on good cause.
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Must provide written notice to both parties explaining the reason for the delay.
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Grievance policy must describe the range, or list, the possible remedies the school may provide a complainant and disciplinary sanctions a school might impose on a respondent, following a determination of responsibility.
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Grievance policy must describe the school’s appellate procedures and state the permissible reasons for appeal by a respondent or a complainant.
All Title IX personnel (the Title IX Coordinator, the investigator, the decisionmaker, facilitator, decisionmaker on appeal) must receive training on:
The definition of sexual harassment;
The scope of the school’s education program/activities;
How to conduct the investigation/grievance process (grievances, appeals, informal resolution);
How to serve impartially.
Training must not be based on sex stereotypes.
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Copy of training must be publicly posted on school website.
The Title IX grievance process is the procedure followed by the school to reach a determination of responsibility relating to a formal complaint of sexual harassment.
Live hearings are not required at the K-12 level.
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Schools must establish a written question/answer process.
A district may not adopt a policy of putting investigations or proceedings on hold due to COVID-19.
A district must continue to offer supportive measures during COVID-19.
A district may not delay investigations or hearings solely because in person interviews or hearings are not feasible.
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The district must utilize technology as appropriate to complete the process remotely.
Dating Violence
Bullying
Harassment
Title IX Sexual Harassment
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Discrimination
Hazing
Distinguishing Bullying, Discrimination, and Harassment
A male student is regularly teased by other students and mean notes and threats are regularly left in his locker merely because he is a new to the school. The behavior has become persistent.
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On its face, this case would appear to be bullying and should be investigated as such under FFI (LOCAL).
Distinguishing Bullying, Discrimination, and Harassment
A female is told by other students that she would be bad at football during recess “because she’s a girl.” This is a one-time act.
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On its face, it would appear to be sex/gender discrimination and should be investigated as such under FFH (LOCAL).
A male student is called a “faggot,” a “wuss,” and “girly” and is regularly shoved in lockers and hit in the back of the head with spitballs over a month’s time by a group of other students in between classes. The male student now takes a longer route to class and is often late.
This persistent behavior, on its face, could be gender harassment
and be investigated as such under FFH (LOCAL); OR
It could also be so severe and pervasive that it should be investigated as
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Title IX gender harassment under FFH (LEGAL)).
Distinguishing between bullying, discrimination, and harassment
A female student is dragged to an empty classroom by a male student and is groped, called a “slut,” and the male student forces her to make out with him before she is able to get away.
This severe incident, on its face, would appear to be sexual violence and should be investigated as Title IX sexual harassment under FFH (LEGAL).
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If the male student is her current boyfriend or former boyfriend it may also be considered dating violence, which also should be investigated as Title IX sexual harassment under FFH (LEGAL).
Even if behavior does not meet the strict definition under Title IX, you still have an obligation to report it to the Title IX Coordinator
Title IX Coordinator has an obligation to determine if allegations meet definition in the regulations
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Even if a complaint is dismissed under Title IX, it can still be disciplined under your normal student discipline procedures/student code of conduct
Discrimination on the Basis of Sex(ual Orientation)
In 2020, the Supreme Court said it was unlawful to fire someone based on their sexual orientation or gender identity
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision...”
Bostock v. Clayton County, Georgia
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(June 15, 2020)
Bostock & Students: Trump Administration
Following the Bostock decision, Trump administration, issued a memorandum on January 8, 2021
Emphasized that Bostock only applies to Title VII – not Title IX
Stated that “sex” as used in Title IX means “biological sex, male or female”
“[T]he logic of Bostock may, in some cases, be useful in guiding OCR’s understanding as to whether the alleged discrimination on the basis of a person’s transgender status or homosexuality necessarily takes into account the person’s biological sex, and thus,
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constitutes discrimination on the basis of sex.”
Bostock & Students: Trump Administration
No Title IX violation for:
Recording student’s biological sex in school records;
Referring to student using sex-based pronouns that correspond to student’s biological sex; or
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Refusing to permit a student to participate in program or activity lawfully provided for members of the opposite sex, regardless of transgender status or homosexuality
Bostock & Students: Trump Administration
Athletics: Title IX only requires recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female – not based on transgender status
Intimate Facilities: Title IX only requires recipient to provide “separate toilet, locker room, and shower facilities on the basis of biological sex”
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Acknowledged that this is contrary to recent holding in the Fourth Circuit
Bostock & Students: Trump Administration
Other areas where it was permissible to provide programs or activities based on distinctions between the two biological sexes:
Separate mother-daughter and father-son activities
Single-sex classes
Extracurricular activities
Physical education classes involving contact sports
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Sessions in human sexuality classes for students of each sex
Bostock & Students: Biden Administration
Executive Orders signaling a shift back to Obama-era policies
January 20, 2021 – Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
Expressly extends Bostock’s holding to Title IX
“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
Recognizes impact of intersectionality on discrimination and harassment – Black transgender Americans
Announces policy of Biden Administration to fully enforce Title VII and other laws to prohibit discrimination on basis of sexual orientation and gender identity
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Bostock & Students: Biden Administration
Executive Orders signaling a shift back to Obama-era policies
March 8, 2021 – Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity
Expressly states that Title IX guarantees freedom from discrimination on basis of sexual orientation or gender identity
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Secretary of Education to review rules and guidance relevant to nondiscrimination on basis of sex in education to ensure alignment with policy stated in Executive Order
Bostock & Students: Biden Administration
June 16, 2021 – Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County
Department interprets Title IX’s prohibition of discrimination “on the basis of sex” to encompass discrimination on basis of sexual orientation and gender identity – consistent with Bostock holding
Declines to define “sex”
Notes textual similarity between Title VII and Title IX
Also notes federal courts’ reliance on Title VII opinions when interpreting Title IX
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No textual exception for sex discrimination associated with sexual orientation or gender identity
Bostock & Students: Biden Administration
June 16, 2021 – Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County
Interpretation consistent with purpose of Title IX to ensure equal opportunity and to protect students from harms of sex discrimination
States intent of Department to “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial assistance”
Harassment
Discriminatory discipline
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Exclusion from, denial of access to, or sex stereotyping in an academic or extracurricular education program or activity
B.P.J. v. West Virginia State Board of Education,
No. 2:21-cv-00316, July 21, 2021
Plaintiff is an eleven-year-old, transgender female student who had been living as female since 3rd grade
Participated in all-girl’s cheerleading squad in elementary school
Diagnosed with gender dysphoria and undergoing treatment that prevents puberty & associated physiological changes
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No increased testosterone no competitive advantage over girl athletes
B.P.J. v. West Virginia State Board of Education,
No. 2:21-cv-00316, July 21, 2021
Plaintiff challenges “Save Women’s Sport’s Bill”
Law defines male and female in terms of biological sex and requires that athletic teams or sports that are sponsored by public secondary school be designated as male, female, or coed.
Limits a student’s participation in sports to team that aligns with biological sex, without regard for gender identity.
Asserted objective is to provide equal athletic opportunity for female athletes and protect physical safety of female athletes when competing
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Student requests preliminary injunction on grounds that it violates Equal Protection Clause of 14th Amendment and Title IX
B.P.J. v. West Virginia State Board of Education,
No. 2:21-cv-00316, July 21, 2021
To succeed on Title IX claim, must show:
She was excluded from participation in an education program “on the basis of sex,”
Educational institution receiving federal financial assistance at time of exclusion, and
Improper discrimination caused her harm.
Court had “little difficulty” finding that the law discriminated against Plaintiff on basis of sex – could not exclude from team without reference to her biological sex
Found that harm is clear
Only girl that is prohibited from playing on girl’s team and required to play on boy’s team
Law stigmatizes and isolates Plaintiff
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Only girl that cannot participate on team that aligns with her gender identity
Honor a student’s gender identity
Have written policies in place that prohibit gender discrimination – FFH(Local)
Train staff on preventing gender discrimination
Follow requirements for changing gender marker in student records
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Ensure transgender students have equal opportunity to participate in field trips or extracurricular activities where students are segregated by sex, including athletics
Allow students to wear clothing that aligns with gender identity
Note: still subject to dress code for student’s preferred gender attire
Address student by their chosen name
Online learning platforms that identify students by pre-populated name that is inconsistent with student’s current gender identity
Work with LGBTQ students and their families
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who are not supported by their families
Remain sensitive to students
Review Education in a Pandemic: The Disparate Impacts of COVID-19 on America’s Students
Data driven account of COVID-19’s impact on students
Provides examples of LGBTQ+ student experiences that may amount to a harm or denial of educational opportunity under Title IX
Bullying/harassment reduced sense of safety LGBTQ+ student skips school
Discrimination/harassment poor mental health and suicidal ideation
Harms from unequal restroom access avoid using restroom at school serious medical complications
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Victimization/discrimination lower educational outcomes
Ryan Newman, Senior Associate rnewman@thomponhorton.com Elizabeth Humphrey, Associate ehumphrey@thompsonhorton.com 3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
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(713) 554-6767
April 2020
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