Title IX Tips - Title IX Expertise and Insight

What Can You Do When a Complainant Doesn’t Want a Formal Title IX Complaint? The Answer May Not Be What You Expect

November 7, 2023

in: 2020 Regulations, Basic Skills

I was lucky enough to present with my dear friend Jacqui Litra in a lengthy session on all things Title IX at the inaugural conference of the National School Attorney’s Association last month in Nashville. If you aren’t familiar with it, NSAA provides the only unified, non-political, independent organization for attorneys representing school districts of all shapes, sizes, and political and social leanings. (Disclosure: I’m also lucky enough to be on the NSAA’s Transition Board and was the primary author of the organization’s comment to the proposed Title IX athletics rule, so I’m a pretty big fan).

One of the questions we received from the audience, packed with school lawyers from across the country, was, “What can you do when a Title IX complainant does not want to sign a formal complaint?” What that means is that this is not a stupid question—it is one that many brilliant people are struggling with across the country, even three years after the 2020 rules went into effect. So what is the answer? Is it “Nothing”? Or can you use another, non-Title IX process to address the behavior? As we explained at NSAA, neither of those options is correct. There are many things you can do. But you cannot use a complainant’s reluctance about the Title IX process to “back door” the case into a non-Title IX process. Here’s why.

Let the Girls Dance (and Dress!)? Title IX Implications for “Morality Codes” in Schools

October 12, 2023

in: Basic Skills, In the News, Title VI

By Jackie Gharapour Wernz

I know many of you may be wondering why this blog has been so quiet. Well, I took the summer off! And guess what, Summer just ended in Dallas this week, something that I was certainly not used to when living in Chicago. Now that it’s finally not 100+ degrees outside every day, my break is over and I am ready to tackle the fall.

My nine-year-old daughter started a new public school this year. I was very surprised when she came home from school a few days into the new academic year telling me that she had been “dress-coded” for her skirt being too short. Now, those of you who know me may not believe this, but this 5’4″ mama has a fourth grader who is already over 5 feet tall! She has long legs and a small waist, which makes buying skirts that meet the old “three-inches-above-the-knees” requirement nearly impossible. Also, she’s in fourth grade—is there really a risk that any fourth-grade boys are going to be so busy ogling her that they can’t focus on learning fractions and other elementary school topics? Shouldn’t she be told how big her brain is at school, not how distracting her body is to others?

This situation got me thinking about “morality codes” in schools. Whether you’re talking about dress codes, for which 90% of enforcement reportedly falls on girls, or other rules based on gender stereotypes about how girls should look or act, back to school is a perfect time to remind ourselves of Title IX’s limitations on these types of requirements. A recent story out of Louisiana provides a great backdrop for this discussion.

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

June 29, 2023

in: Office for Civil Rights, Title VI

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

June 16, 2023

in: In the News, Office for Civil Rights, Texas Law

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

May 26, 2023

in: 2023 Regulations

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

May 3, 2023

in: Events, Training, Webinar

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!