Discrimination

Here We Go: ED Releases Reworked Title IX Regulations

April 19, 2024

By Seth F. Gilbertson

After an extensive period of public commentary and deliberation, the U.S. Department of Education (ED) announced significant updates to its Title IX regulations on April 18, 2023. The changes are largely designed to overhaul how institutions of higher education (IHE) consider and address cases of sexual harassment, sexual assault, LGBTQI+ discrimination, and other forms of sex-based mistreatment, with the goal of ensuring gender equity in education.

Read More >> Here We Go: ED Releases Reworked Title IX Regulations

Departments of Education and Justice Issue Guidance with Respect to Students for Fair Admissions v. Harvard

August 15, 2023

By Philip J. Zaccheo

On Aug. 14, 2023, the Office for Civil Rights of the United States Department of Education and the United States Department of Justice issued joint guidance to institutions of higher education with respect to the Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The guidance, in the form of a Dear Colleague Letter and a Q&A document, clarifies the Departments’ position as to practices that are and are not permissible in the wake of the decision, and encourages institutions’ continued use of lawful means to enroll and support a diverse student body. For example:

Read More >> Departments of Education and Justice Issue Guidance with Respect to Students for Fair Admissions v. Harvard

November 3, 2023 Deadline for NCAA Division I DEI Self-Assessment and Attestation

July 19, 2023

By E. Katherine Hajjar, John G. Long, II, and Kristen J. Thorsness

As part of the NCAA’s efforts to promote diversity and gender equity in intercollegiate athletics, NCAA Bylaw 20.2.4.3 requires that all Division I athletic departments perform a diversity, equity and inclusion (DEI) assessment and file an attestation of completion of the review with the NCAA by November 3, 2023.   

Read More >> November 3, 2023 Deadline for NCAA Division I DEI Self-Assessment and Attestation

BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

June 29, 2023

By Laura H. Harshbarger

BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon. 

Read More >> BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

OCR Issues Dear Colleague Letter on Antisemitism

June 8, 2023

By Seth F. Gilbertson

On May 25, 2023, the United States Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL) “as part of the Department’s launch of an Antisemitism Awareness Campaign” described in the Biden-Harris Administration’s U.S. National Strategy to Counter Antisemitism dated the same day. The DCL specifically notes the “nationwide rise in reports of antisemitic harassment, including in schools,” and reiterates the applicability of Title VI in this context. Title VI prohibits discrimination based upon race, color, or national origin by higher education institutions (IHEs) receiving federal financial assistance, and this protection from discrimination extends to students who experience discrimination, including harassment, based upon their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Therefore, students who are or are perceived to be Jewish are protected under this basis, and the DCL cautions that IHEs and K-12 “[s]chools must take immediate and appropriate action to respond to harassment that creates a hostile environment for these students.”

Read More >> OCR Issues Dear Colleague Letter on Antisemitism

Department of Education Announces Delay in Release of New Title IX Regulations

May 26, 2023

By Philip J. Zaccheo

The United States Department of Education announced today a delay in the anticipated date for release of its Final Rule setting forth revised Title IX regulations. The Department had previously advised that the Final Rule would be released during the month of May, but now anticipates publication in October.

Read More >> Department of Education Announces Delay in Release of New Title IX Regulations

Hot Topics in Title IX Athletics: Recent Cases about Title IX Compliance in Athletics

April 24, 2023

By Kristen J. Thorsness

In the past six months, the federal courts have addressed some novel issues about what is a “sport” under Title IX, as well as questions of standing, retaliation, financial aid, class certification and Title IX’s equitable opportunities and benefits requirements. These cases reflect that the landscape of Title IX continues to change and requires careful attention to ensure that your school or institution does not inadvertently drift into Title IX violation.

Read More >> Hot Topics in Title IX Athletics: Recent Cases about Title IX Compliance in Athletics

Hot Topics in Title IX Athletics: Transgender Athletes

April 19, 2023

By Kristen J. Thorsness

Although transgender athletes have been competing for many years – recall Renee Richards playing professional women’s tennis in the 1970’s – the participation of trans-female athletes has recently resurfaced as a sensational headline topic. The Trump and Biden administrations took polar opposite positions and federal courts have issued conflicting rulings on this issue, which appears headed to the U.S. Supreme Court.

Read More >> Hot Topics in Title IX Athletics: Transgender Athletes

Hot Topics in Title IX Athletics: Does Having Separate Classifications for “Major” and “Minor” Sports Violate Title IX?

April 17, 2023

By Kristen J. Thorsness

It is a common practice in collegiate athletics to separate teams in two or more “tiers” of “major” and “minor” or “revenue” and “non-revenue” sports. Tiering may not be explicitly intended by administrators, but informal tiering is relatively common by virtue of emphasizing some teams over others. While tiering is not per se a violation of Title IX, it must be organized properly to avoid violations.

Read More >> Hot Topics in Title IX Athletics: Does Having Separate Classifications for “Major” and “Minor” Sports Violate Title IX?

OCR Issues New Guidance on the Application of Title IX in Higher Education Athletics

March 10, 2023

By Kristen J. Thorsness and Connor Johnson

Introduction 

In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards. 

Read More >> OCR Issues New Guidance on the Application of Title IX in Higher Education Athletics

OCR Issues New Fact Sheet on Diversity and Inclusion Activities Under Title VI of the Civil Rights Act of 1964

February 3, 2023

By Seth F. Gilbertson

On Jan. 31, 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a new fact sheet interpreting Title VI of the Civil Rights Act of 1964, which prohibits discrimination in federally assisted programs and activities based upon race, color or national origin. OCR is charged with enforcement of Title VI in educational settings.[1]

Read More >> OCR Issues New Fact Sheet on Diversity and Inclusion Activities Under Title VI of the Civil Rights Act of 1964