Can Even a Short K-12 Library Book Ban Lead to a Civil Rights Violation? OCR Says Yes

By Jackie Gharapour Wernz and Kendra Yoch

From School Board member resignations to administrator terminations, from Federal free speech lawsuits to schools pulling the Bible from library shelves, there is no shortage of stories about the challenges facing school districts that ban books based on allegedly explicit content. The U.S. Department of Education recently added to the fraught environment surrounding book bans in response to a complaint alleging that the removal of certain books led to violations of students’ rights under Title IX and Title VI. Specifically, several students spoke up at a school board meeting saying their school district removed books because of LGBTQIA content or authorship. Others claimed books were removed because they championed principles of diversity, equity, and inclusion or were written by authors or contained characters who are people of color. The students reported feeling targeted, marginalized, and unwelcome because of the book bans. Despite those reports, the school district did not address the concerns under its policies prohibiting harassment based on race, color, or national origin (Title VI policies) or sex, gender, sexual orientation, or gender identity (Title IX policies).

Although OCR resolved the complaint before making a finding of whether a violation occurred, the type of resolution agreement used can only be considered when OCR’s investigation has identified concerns through its investigation. The agreement is therefore clear notice to schools that OCR expects them to treat allegations of harassment based on the removal of books from school libraries as they would any other allegation of misconduct based on a protected status. Unless and until a lawsuit—like the one filed by the Texas AG recently, challenging a similar OCR investigation in Texas—is successful, schools should brush up on their civil rights responsibilities to limit the risk of an OCR investigation in response to removals of library books. Let’s talk about this case a bit more and what those responsibilities are.

Texas AG Challenges Both Trump and Biden Administration Interpretations of Title IX for LGBTQIA Students in New Lawsuit

The Texas Attorney General’s Office has had a lot on its plate lately, including the suspension and impeachment of AG Ken Paxton. But it has taken on a new challenge this week with a broad lawsuit seeking to remove Title IX protections recognized by both the Trump and Biden administrations for LGBTQIA students.

Other lawsuits have challenged the Biden administration’s attempt to extend Title IX to sex-segregated sports teams, intimate facilities for transgender students, and even use of student pronouns. But the Texas lawsuit challenges the Department of Education’s interpretation of Title IX to protect LGBTQIA students from any discrimination and harassment based on sexual orientation or gender identity.

If a Federal court agrees with the lawsuit, it would remove protections for LGBTQIA students that both the Trump and Biden administrations have recognized since at least August 2020. Back then, the Trump administration’s Office for Civil Rights publicly opened a case for investigation alleging different treatment of a student for being gay, which had not been the policy of OCR before. Keep reading for what you need to know about the Texas AG’s lawsuit and its potential impact on schools in Texas and beyond.

Now What? OCR Just Delayed Two Major Title IX Rules… Here’s Your Gameplan

The U.S. Department of Education’s Office for Civil Rights announced today that two major amendments to the regulations implementing Title IX will not be finalized until October 2023 at the earliest. The Title IX grievance procedure rule, which was proposed on June 23, 2022, would dramatically alter the process that schools, colleges, and universities must use for sexual harassment and other sex discrimination complaints under Title IX. The Title IX gender identity and athletics rule, proposed on April 6, 2023, would implement a new test for schools that wish to limit student participation in athletics based on gender identity. The result of today’s announcement is that the sexual harassment grievance procedure requirements implemented under the Trump administration in 2020 will remain in effect for at least the first semester of the 2023 academic year. Moreover, uncertainty will remain with respect to OCR’s enforcement of Title IX against schools that limit the participation of transgender students in athletics.

June Certification for K-12 Title IX Administrators: 2022-2023 Wrap-Up

The 2022-2023 school year is (almost!) a wrap. There are big changes on the horizon for Title IX, but many things remain the same. Join your Thompson & Horton Title IX team June 13, 2023, 11:00 a.m. to 4 p.m. Central (12 p.m. to 5 p.m. Eastern; 9 a.m. to 2 p.m. Pacific) for a fast-paced, interactive live certification training covering all the hot topics K-12 Title IX coordinators, deputy coordinators, and administrators need to know as the school year comes to an end. Keep reading for more information or Register here! 

ED Department Proposes Title IX Amendment Prohibiting Outright Bans on Transgender Athlete Participation

By Jackie Gharapour Wernz and Kendra Yoch

On April 6, 2023, the U.S. Department of Education proposed an amendment to Title IX prohibiting categorical bans on transgender athletes’ participation in school sports. If adopted, the proposed rule would override the laws of twenty states, including Texas, that require students to participate on the sports team matching their sex assigned at birth. The proposal would implement a new test for such rules, balancing the objectives of schools in limiting transgender student participation against the potential for harm to students whose opportunity to participate is denied. What should your school, college, or university know about the proposed rule now?

Collaboration for the Win! Title IX and Special Education in K-12

Assuming they are finalized as proposed, the new Title IX rules will for the first time require ongoing “consultation” between the Title IX Coordinator and special education team when a party to a Title IX complaint is a student receiving special education or related services. But if you work in Title IX or special education in K-12 public schools, “collaboration” should already be a part of your vocabulary in this context. There are so many complex issues at the intersection of Title IX and special education that make collaboration between Title IX and special education teams essential. Are you doing all you need to do to protect your educational institution from legal risks involving Title IX and special education?

Watch our complimentary webinar to find out! Keep reading for more information.