Title IX

State Attorneys General Bring Challenges Against New Title IX Regulations

June 8, 2020

By Mallory A. Campbell, Peter A. Jones, Jane M. Sovern, and Philip J. Zaccheo

On May 6, the U.S. Department of Education (Department) released final regulations under Title IX. These regulations significantly change how higher education institutions, and to a lesser extent, school districts, must respond to sexual assault and harassment on campus. 

Read More >> <p>State Attorneys General Bring Challenges Against New Title IX Regulations</p>

Federal Courts Weigh In: Title IX Proceedings During COVID-19

April 30, 2020

By Samuel G. Dobre and Jane M. Sovern

The ongoing COVID-19 pandemic has presented new challenges for college administrators as they evaluate whether to continue Title IX investigations through telephone and video conferences or postpone interviews and hearings until “stay at home” orders are withdrawn by state and local governments. 

If Title IX investigations are postponed, victims of alleged sexual misconduct on campuses may sustain prolonged trauma. On the other hand, students accused of wrongdoing may be at a disadvantage if cases proceed through telephone or videoconferences. The mounting uncertainty created by the coronavirus pandemic poses unique scenarios for institutions committed to prompt and equitable resolution of complaints. 

Read More >> <p>Federal Courts Weigh In: Title IX Proceedings During COVID-19</p>

Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices

November 19, 2018

By Philip J. Zaccheo, Laura H. Harshbarger, and E. Katherine Hajjar

On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.

Read More >> <p>Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices</p>

U.S. Department of Education Withdraws 2011 "Dear Colleague Letter" and 2014 Q&A on Sexual Misconduct; New Guidance Document Issued

September 24, 2017

In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases.  As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.

New September 2017 Question & Answer Document Issued

In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct  – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment.

The most notable changes reflected in the newly-issued 2017 Q&A on Campus Sexual Misconduct include:

  • The Department has withdrawn its expectation that investigations will be completed within 60 days. Investigations must be “prompt,” but there is no specific expected timeframe for completion. See Question 5.
  • The Department has retracted its position that only a “preponderance of evidence” standard may be used in sexual harassment and sexual violence cases. Instead, the standard of proof for finding a violation in sexual misconduct cases should be consistent with the standard the institution uses in other types of student misconduct cases, which may be either a “preponderance of evidence” standard or a “clear and convincing evidence” standard. See Question 8, fn. 19.
  • The Department emphasizes the importance of impartiality, saying that “institutional interests” must not interfere with the impartiality of investigations.  Investigators are to be “trained” and “free of actual or reasonably perceived conflicts of interest and biases for or against any party.” See Question 6. If institutions do not already provide an opportunity for parties to raise objections to investigators or other decision-makers, it may be advisable to include such an opportunity.
  • In withdrawing the 2014 Q&A, the Department has retracted its previous list of topics on which investigators and adjudicators must be trained. In its place, the Department cautions against “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations.” See Question 6. Similarly, the Department announces that decision-makers must approach cases “objectively and impartially” and may not employ or rely on “sex stereotypes or generalizations.” See Question 8. Institutions should review training provided to investigators and adjudicators to ensure compliance with this aspect of the guidance.
  • The Department retracted its prohibition on mediation in sexual violence cases. The Department’s newly announced position is that mediation and other forms of informal resolution may be used to resolve any Title IX complaint if both parties voluntarily agree to participate. See Question 7.
  • The Department discourages any restriction on the ability of either party to discuss an investigation, stating that such a restriction is likely inequitable and may impede parties’ ability to gather and present evidence. See Question 6.
  • The Department has announced that the investigation should result in a written report summarizing both “the relevant exculpatory and inculpatory evidence”, that the parties should be provided “equal access” to this information, and that they should have the opportunity to respond to the report in writing and/or at a hearing prior to a determination of responsibility.  See Question 6.
  • In determining interim measures, a school “may not rely on fixed rules or operating assumptions that favor one party over another.” However, the Department also notes that, in cases of sexual assault, dating violence, domestic violence and stalking, colleges and universities continue to have obligations under the Clery Act to provide reasonably available interim measures to a reporting party who requests such measures. See Question 3.
  • The Department has reversed its previous position that, if an opportunity for appeal is afforded to one party, it must be provided to both parties. Now, institutions may restrict the right to appeal to responding parties only. See Question 11.

What this Means for Institutions 

It is doubtful that the Department’s change of position will require institutions to wholly revamp their Title IX policies and procedures. For the most past, the new guidance does not disallow institutions from continuing  current practices if the institution wishes to do so, and in fact some of those practices and procedures continue to be required by the Violence Against Women’s Act amendments to the Clery Act.

One notable exception is the standard of evidence. If an institution uses the higher standard of clear and convincing evidence in other student misconduct cases, the institution will need to consider the need to either change the standard of evidence in those other cases to a preponderance of evidence standard or change the standard applicable to sexual harassment and sexual assault cases.  Also, if institutions do not currently allow parties access to the investigative file, they will need to ensure that this access is incorporated into their procedures going forward.  Relatedly, the requirement that the parties have an opportunity to respond to a written investigative report prior to a determination of responsibility may necessitate refinements to some processes that utilize an “investigator model” for determinations of responsibility, as well as processes that use a formal hearing to consider evidence other than in “report” form.

More generally, the new guidance places a renewed focus on impartiality. All institutions would do well to review their policies, procedures and personnel involved in the process with an eye on this issue. 

State Law Requirements

In addition to the federal requirements impacted by OCR’s new guidance, some states have enacted laws on the topic of response to sexual violence. For instance, New York State’s “Enough is Enough” Law imposes a fairly full panoply of institutional requirements with respect to sexual assault, dating violence, domestic violence and stalking, and New York colleges and universities must continue to comply with this state law despite the U.S. Department of Education’s lessening of its regulatory requirements.  Generally, New York State’s requirements are not in conflict with the Department’s newly-issued positions as articulated in the 2017 Q&A on Campus Sexual Misconduct.  Perhaps the most notable potential exception is with respect to interim measures.  New York State law seems to require a formulaic no-contact order that imposes on the responding party the obligation to “leave the area immediately” if in a public place with the reporting party, whereas the Department’s newly announced position is that interim measures “may not rely on fixed rules or operating assumptions that favor one party over another.” Whether and how these two directives can be reconciled will require further consideration and analysis.

The Department’s announcement makes clear that this is not necessarily the last change it will make with respect to schools and their Title IX obligations.

If you have questions about how the September 22, 2017 DCL or Q&A on Campus Sexual Misconduct impacts your current policies and procedures please reach out to our Higher Education Practice group.

N.Y. Education Law Article 129-B Notice of Audit Issued to New York Colleges and Universities

June 29, 2017

By Shelley Sanders Kehl, Monica C. Barrett, E. Katherine Hajjar, Philip J. Zaccheo, and Laura H. Harshbarger

Many institutions are reporting receipt of a letter dated June 26, 2017 from the New York Office of Campus Safety with an attached Notice of Audit (“Notice”) pursuant to New York Education Law Article 129-B (N.Y. Educ. Law §§ 6439–6449). The Notice seeks data submissions relating to the provision of Article 129-B and it includes 23 separate requests for information and documentation.  The response to the Notice must be postmarked no later than July 7, 2017.

This audit comes at a time when key institutional personnel, including student affairs professionals, are away from the office on vacation and some institutions are closed. In addition, the short turnaround requested (fewer than 10 calendar days over a major holiday weekend) gives very little time to gather the responsive materials, let alone review and redact them if necessary. The time period is far less than what is required to respond to a discovery demand under the New York Civil Practice Law and Rules.

We believe that it is unclear whether FERPA permits the release of personally identifiable student information to the New York Office of Campus Safety, which is an office of the New York Division of Criminal Justice Services and not an office of an education agency.

The Audit Request

The statute at § 6449 provides only for the collection of aggregate data, consistent with the statute’s emphasis on confidentiality and respect for the privacy of those involved in the process. Section 6449(3) emphasizes that, even when collecting aggregate information “the department shall not release the information, as provided for in this section, if it would compromise the confidentiality of reporting individuals or any other party….”

Eleven of the 13 requests in the Notice contain statutory references to the applicable section of Article 129-B as authority for the requested data. Two of the requests, numbers 9 and 10, contain no reference to the statute and there does not appear to be any specific section of the statute that supports the sensitive nature of the data sought in requests 9 and 10. Additionally, request number 4 seeks copies of all “no contact orders” issued by the institution, although there does not appear to be a statutory basis for such a request. Number 6(a) seeks data on all students subject to interim suspension, although that request also appears to be beyond the scope of the referenced statutory section.

Compliance Next Steps

Notwithstanding the unrealistic time frame to respond to the audit requests and credible questions about the statutory basis for specific requests, institutions must begin to prepare a response. 

Request an Extension

We encourage institutions that do not anticipate that they will be able to comply with the aforementioned deadline to contact Deputy Director Stacey Hamilton by telephone to request an extension and follow up with a written request and/or confirmation.

Prepare Materials for Submission 

Institutions should plan to submit easily accessible data such as policies, blank forms, website material by July 7, 2017, or the extended deadline, and include a cover letter indicating that, where applicable, additional materials will follow as soon as possible. In that cover letter, the institution may articulate the factors, if applicable, that make it difficult to respond within the narrow time frame allotted. One of those factors may be that the materials have to be carefully reviewed in order to redact confidential information in accordance with the privacy considerations emphasized in Article 129-B and other privacy laws.

We suggest that with regard to request numbers 1, 2, 3, 5, 6(b), 7, 8, 11, 12 and 13, institutions collect the documents and data developed over the past academic year (Fall 2016 to Spring 2017). Note that for request number 12 regarding campus climate assessments, institutions should exercise care when preparing a response to prevent the identification of any particular student.

Concerns with Respect to Disclosure

Request number 4 asks for information and documents regarding each request for a “no contact order” received by the institution. Institutions may decide to provide a copy of the institution’s template “no contact order” language, rather than specific orders, together with data on the number of orders issued and the number of orders that were changed. Although the New York State Office of Campus Safety appears to be seeking copies of specific “no contact orders” that include the names of the students, it is unclear that they have the right to this personally identifiable information under FERPA.

Similar consideration applies to request number 6(a). It may be acceptable in the initial response to provide aggregate data on interim suspensions and not data that could identify a specific student. In light of the statute’s emphasis on confidentiality and privacy, and the fact that the statute refers to aggregate data, the Office of Campus Safety may not have the authority to receive personally identifiable information.

A separate issue is the scope of request numbers 9 and 10, which seek an academic year’s worth of records relating to all reports of incidents covered by Article 129-B and all records involving misconduct hearings covered by Article 129-B. These requests are overly broad, are seriously inconsistent with the statute’s emphasis on confidentiality and privacy, and are not in accord with the statute’s authorization to collect aggregate data. Institutions should be consistent in the documentation provided for each case and should make sure information does not contain personally identifiable information about students while this issue remains unresolved.

In a letter to the Office of Campus Safety dated June 29, 2017, the Commission on Independent Colleges & Universities in New York (CICU) has raised the question of redacting personal information pertaining to students.

If you have questions please contact a member of our Higher Education Group.

New York Institutions: Governor Reportedly to Order Comprehensive “Enough is Enough” Compliance Audit

May 16, 2017

By Philip J. Zaccheo

universityApparently prompted by allegations from students and advocates, New York Governor Andrew Cuomo is reportedly directing an audit, to be conducted by representatives from the New York State Department of Education, Department of Health, Office of Victim Services and State Police, of institutions’ compliance with Education Law Article 129-B, the so-called “Enough is Enough” campus sexual violence legislation. According to published reports, between now and September 1, the audit would review institutional policies and websites to determine compliance with, among other things, the statutory requirements for adoption of policies and disclosures to students.  A second phase would then examine institutions’ handling of individual cases. The precise details of these reviews are as yet unknown, but the second phase has the potential to equal or exceed, in scope and depth, reviews conducted by the Office for Civil Rights of the United States Department of Education under Title IX. OCR reviews are, of course, typically prompted by individual complaints.  By contrast, the Governor’s audit program, if it proceeds as reported, would apparently target all colleges and universities in New York State, essentially subjecting them to a similar process even in the absence of particular concerns or complaints. Pursuant to Education Law Section 6440(3), the Education Department had previously indicated its intent to conduct “random audits, at any time after September 1, 2016” to monitor compliance with the statutory requirements.  This initiative, however, appears to be more comprehensive in terms of its coverage of institutions throughout the State, seemingly in conflict with the statutory dictate that audits be conducted “by random selection.” Needless to say, the roll-out and implementation of this initiative bear watching.

Supreme Court Will Review Fourth Circuit Decision in Transgender Student’s Rights Case

October 30, 2016

By E. Katherine Hajjar

title-ixOn October 28, 2016 the United States Supreme Court agreed to review the Fourth Circuit’s decision in Gloucester County School Board v. G.G. This case is about whether a Virginia School Board’s policy limiting students’ bathroom access to facilities that correspond to students’ biological gender is discriminatory. The case was brought by the ACLU, on behalf of transgender student G.G., alleging the School Board’s policy violates G.G.’s rights under the Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972, and is inconsistent with U.S. Department of Education Office for Civil Rights (OCR) guidance stating that school districts should treat students consistent with their gender identities. While the Fourth Circuit held that OCR guidance, while not law, deserved deference on this issue it stopped short of holding that the School Board’s policy violates Title IX’s protections against sex discrimination.  On August 29, 2016, the School Board petitioned the Supreme Court for review. In response the Supreme Court stayed the Fourth Circuit’s decision, thus keeping the School Board’s policy in place while it considered whether it would review the case. A decision by the Supreme Court here will not just determine whether this Virginia school board’s policy violates federal civil rights laws. A decision will impact similar transgender policies, laws, and cases under scrutiny in North Carolina, Texas, and elsewhere. This case is further meaningful for the education community as it may provide clarity on the scope of Title IX’s sex discrimination protections and the appropriate weight to afford OCR interpretation of Title IX and other statutes. For more background on Gloucester County School Board v. G.G. see our previous post here.

United States District Court Enjoins Enforcement of Dear Colleague Letter on Transgender Students; Decision May Impact OCR Guidance on Sexual Violence

August 23, 2016

By Philip J. Zaccheo
On August 21, 2016, in a case entitled State of Texas et al. v. United States of America et al ., Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction prohibiting the United States government (specifically, the Office for Civil Rights of the Department of Education (“OCR”), the Department of Justice (“DOJ”), the Department of Labor and the Equal Employment Opportunity Commission) from enforcing the terms of the May 13, 2016 Dear Colleague Letter issued by OCR and DOJ. As institutions are aware , the Dear Colleague Letter articulated OCR’s and DOJ’s interpretation of Title IX and its implementing regulations as requiring K-12 schools, colleges and universities to treat a student’s gender identity as the student’s “sex” for purposes of Title IX’s prohibition against discrimination based on sex, and described several areas where schools and institutions must provide transgender students with equal access to education programs and activities “even in circumstances in which other students, parents and community members raise objections or concerns.” In reaching its decision, the Court found that there was a likelihood that the plaintiffs (13 states and two school districts) would prevail on their claim that the Departments’ interpretation of Title IX is contrary to the plain language of the statute and its implementing regulations, and is therefore incorrect as a matter of law. Specifically, the Court determined that the term “sex,” as understood at the time that the statute and regulations were initially adopted, was understood to refer to an individual’s biological sex, rather than the individual’s gender identity. Perhaps more significantly, in an aspect of the decision that could impact OCR’s enforcement strategy in other areas, the Court also determined that OCR and DOJ were required to comply with the federal Administrative Procedure Act (the “APA”) prior to issuing the Dear Colleague Letter, and that their failure to do so rendered the Dear Colleague Letter invalid. By way of background, the APA requires federal agencies to publish proposed rules in the Federal Register, and to provide the public a period of time to comment on them (this is commonly referred to as the “notice and comment” process). The purpose of this requirement is to enable an agency to consider the perspectives of persons or entities that would be impacted by proposed rules before they are finalized.  However, not every action an agency takes is required to go through the notice and comment process, and the APA specifically excludes from its ambit agency pronouncements that amount merely to interpretations of existing rules (rather than the imposition of new substantive requirements). In concluding that OCR and DOJ were required (and failed) to comply with the APA prior to issuing the Dear Colleague Letter, the Court noted that OCR and DOJ have applied the guidance contained in the Dear Colleague Letter as if it were binding law in a manner different than the underlying regulation had previously been applied, and that the guidance is “compulsory in nature” in that schools must comply with the guidance or be deemed in breach of their Title IX obligations. This decision is obviously significant insofar as it impacts the enforceability of the May 13, 2016 Dear Colleague Letter. However, colleges and universities that have voluntarily implemented measures consistent with the Dear Colleague Letter may certainly continue to do so, unless they are located in states that have adopted legislation prohibiting such action.   Where the decision (or, at a minimum, the reasoning underlying the decision) may have a greater impact is in its potential effect on OCR’s subregulatory guidance with respect to institutions’ obligations to prevent and address sexual violence (e.g., OCR’s April 3, 2011 Dear Colleague Letter  and its April 29, 2014 Questions and Answers on Title IX and Sexual Violence). Although the arguments for and against the validity of OCR’s substantive interpretation of Title IX are different as between these two subject areas, there are certainly parallels between OCR’s use of purported subregulatory guidance on both issues.  Indeed, the District Court noted the impact of the May 13, 2016 Dear Colleague Letter on institutions, as evidenced by the government’s efforts to enforce its requirements, as a significant factor in characterizing it as legislative (and thus subject to the APA) rather than interpretive in nature, and OCR’s enforcement of its guidance on sexual violence is undeniable, with over 250 active investigations at more than 200 institutions currently pending. It is certainly possible, and perhaps even likely, that the federal government will appeal the Court’s decision in State of Texas, and in any event OCR can be expected to assert that the Court’s rationale does not apply to its guidance on sexual violence.  However, the Court’s decision will certainly be used in support of pending litigation challenging the validity of OCR’s guidance on sexual violence, and in connection with congressional efforts to overturn that guidance.  Needless to say, the situation merits further watching.

Highlights of New York State Guidance on N.Y. Education Law Article 129-B

June 8, 2016

By E. Katherine Hajjar

vt-300x134On June 2, 2016, the New York State Education Department and the New York State Office of Campus Safety published a 52-page joint guidance document (“Guidance”) on New York Education Law Article 129-B (“the Law”), also often referred to as “Enough is Enough.” The Guidance is helpful in that it clarifies previously opaque points in the Law and acknowledges some of the practical problems faced by colleges and universities.  The Guidance arrives in time to make adjustments before the July 1, 2016 deadline by which institutions are required to file their relevant policies and procedures with the State Education Department. Among the more interesting points in the 52-page Guidance are the following: When A Report is Received Section 6444(2) of the Law states that every institution must ensure that at the first instance of disclosure of an incident of domestic violence, dating violence, stalking, or sexual assault by a reporting individual, the recipient institutional representative presents the following information:

You have the right to make a report to university police or campus security, local law enforcement, and/or state police or choose not to report; to report the incident to your institution; to be protected by the institution from retaliation for reporting an incident; and to receive assistance and resources from your institution.

According to the Guidance, institutions may instruct employees to carry this paragraph with them for easy access, or, alternatively, allow employees to access the paragraph on a website and provide or read the information to reporting individuals. This second approach is only compliant if the institution trains those who are likely to receive a report on how to access the paragraph online. See pg. 19 of Guidance. An institution also must be neutral when explaining to students their options to notify law enforcement, request the assistance of campus authorities in notifying law enforcement, or to decline to notify law enforcement. See pg. 13 of Guidance. Institutions should review their policies to make sure that policy language discussing reporting options is absolutely neutral – i.e. does not recommend, suggest, or encourage any one option. Repetition of Report to Authorities The Guidance explains that the intent of Subdivision 7 of the Students’ Bill of Rights (the right to repeat an account to as few people as practicable) is to minimize impact so that students will not want to withdraw from the process. Subdivision 7 says “as few as practicable” not as “few as possible,” which, according the Guidance, affords institutions reasonable leeway to ask a student to repeat an account for legitimate reasons. See pgs. 14–15 of Guidance.  For example, colleges may ask a student to repeat pertinent portions of an incident in a hearing or to a fact-finder. Emergency Access to Title IX Coordinator While the Law requires that reporting individuals have “emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault,” the Guidance clarifies that “emergency access” does not mean 24/7 access. See pg. 16 of Guidance. Amnesty The Law requires an assurance that students who make good faith reports of domestic violence, dating violence, stalking, or sexual assault will not be subject to disciplinary action for violations of alcohol and/or drug use policies occurring at or near the time of the reported incident.  The Guidance clarifies that the mandatory amnesty provision does not, however, prevent an institution from removing students from clinical or residency programs where a drug or alcohol violation would indicate unsuitability to participate. See pg. 12 of Guidance. Explaining Standards of Proof Institutions are expected to educate students and employees who may receive a report about the differences between standards of proof in the criminal justice system (beyond a reasonable doubt) and the standard of proof used by the institution (preponderance of the evidence). The Guidance points out that SUNY has developed a document that may be helpful in explaining these differences: http://system.suny.edu/sexual-violence-prevention-workgroup/College-and-Criminal-Resource/. Charges The Law states that a student has the right to request that the institution bring disciplinary charges, but the Guidance clarifies that it is within the institution’s discretion to decide whether or not the evidence merits doing so. See pg. 25 of Guidance. Access to Case File The Law states that students have the right to review (and present) relevant evidence in the case file, or otherwise in the possession or control of the institution.  The Guidance clarifies that this access requirement means reasonable, in person access at a time, place, and manner determined by the institution. Institutions are not required to provide the parties with copies of the case file.  Further, this provision is not a generalized discovery requirement, in that the institution must only provide access to evidence that is “directly relevant to the specific case, as reasonably determined by the institution.” Institutions may restrict access to sensitive information in the file that is not directly relevant to the issues raised, as well as further restrict access if the institution determines that a student and/or advisor is merely engaged in a “fishing expedition.” See pg. 31 of Guidance. Response to Reports The Guidance addresses how charges may be adjudicated. It clarifies that while the Law refers to a “hearing,” institutions may opt for an investigator model in lieu of a traditional hearing format. Therefore, a college or university may rely on an investigator to gather the factual information, conduct interviews, summarize what is credible, and offer a determination as to whether the evidence supports the charges.  Section 6444(5) does not require that evidence be offered during a hearing or in the presence of other parties or witnesses. See pg. 27 of Guidance. Advisors of Choice The Guidance contains helpful clarifications on the ability of institutions to place reasonable limits on the role of advisors, including (a) validation of rules restricting advisors from speaking during meetings or hearings; (b) a statement that institutions can prevent advisors from circumventing such restrictions, such as by writing questions that the advisee reads verbatim in real time; (c) authority to remove advisors who violate procedural rules without an obligation to adjourn the hearing or allow the student to replace the advisor; and (d) validation of institutional policies placing reasonable restrictions on scheduling accommodations for advisors (such as limiting requests for delays to allow for scheduling conflicts of advisors to a specified number of business days).  See pgs. 28–29 of Guidance. Transcript Notations The Guidance notes that if a court vacates a college’s finding of responsibility for a violation of institutional policy, the corresponding transcript notation must be removed. The Guidance does not address, however, whether a transcript notation may be removed if the parties agree, as a condition of litigation settlement, to vacate a finding of responsibility.  See pg. 37 of Guidance. Legal Resources The Law mandates that reporting individuals receive assistance from the institution “in initiating legal proceedings in family court or civil court,” but the Guidance confirms that this does not require that institutions bring actions on behalf of reporting individuals, provide attorneys, or provide actual direct support. Still, institutions should be able to direct individuals to resources. The Guidance cites another SUNY resource page on this topic: http://www.suny.edu/violence-response/. See pg. 18 of Guidance. Student Training The Guidance clarifies that that an institution need only offer onboarding training to all new students, and that there is no requirement, with the exception of student athletes and student leaders, that every student complete training in order for an institution to be in compliance with the onboarding training requirements.  The Guidance does, however, prohibit, or at least strongly discourage, the use of online programs as the only component of onboarding training. Relatedly, the Guidance provides welcome flexibility as to the timing of the required training for leaders of student organizations and student athletes (who, unlike other students, must complete training).  Specifically, the Guidance allows fall sport athletes to begin competition or student organization officers to begin their service prior to training, with an understanding that they will be trained within a short period thereafter. See pg. 45 of Guidance. Climate Surveys The Law’s climate survey requirement becomes effective in July 2016 and requires institutions to conduct surveys “no less than every other year.”  However, the Guidance states that the first climate survey must be completed by July 2017. See pg. 39 of Guidance. Audits The Guidance notes that the State Education Department will conduct random audits, at any time after September 1, 2016, to ensure compliance with the provisions of the Law. See pg. 2 of Guidance. Therefore, institutions should revise policies as needed and review case handling protocols that are impacted by the Guidance.

Fourth Circuit Decides Case on Transgender Students’ Rights

May 5, 2016

By E. Katherine Hajjar

On April 19, 2016, the Fourth Circuit Court of Appeals issued a decision addressing transgender and gender nonconforming students. In G.G. v. Gloucester County School Board the Fourth Court was presented with the question of whether Title IX requires that schools allow transgender students to have access to restrooms consistent with their gender identities. The Fourth Circuit’s Decision In 2015, Virginia’s Gloucester County School Board passed a resolution endorsing a policy that provided male and female restrooms and locker rooms in its schools, but limited their use to those of the corresponding biological gender. The policy also provided that “students with gender identity issues shall be provided an alternative appropriate facility.” The School Board took this step in the face of community opposition to the fact that the high school permitted G.G., a transgendered boy, to use the boys’ restroom for seven weeks. Members of the community appeared at two different public hearings to express opposition to the practice of allowing G.G. to use the boys’ restroom and to express concerns about the privacy of other students and the potential for sexual assaults in restrooms. The American Civil Liberties Union of Virginia brought this case on behalf of G.G. seeking an injunction of the School Board’s policy arguing that the policy violated both Title IX and the Equal Protection Clause. Title IX of the Education Amendments of 1972 states that “no person 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(a). The U.S. Department of Education’s regulations implementing Title IX add that the practice of maintaining separate bathroom and locker room facilities on the basis of sex is not discriminatory as long as facilities are comparable. While Title IX and the regulations have been in place since 1972 and 1980, respectively, the question of how they apply to transgender individuals was not explicitly addressed until recently; in a January 7, 2015 opinion letter the Department’s Office for Civil Rights (OCR) advised that the regulations require that any school receiving federal funding treat transgender students consistent with their gender identities. In its April 19th decision, the Fourth Circuit reversed the District Court’s dismissal of G.G.’s Title IX claim, and held that the United States Department of Education’s “interpretation of its own regulation…is entitled todeference and is to be accorded controlling weight in this case.”  The case was remanded to the District Court for further proceedings. While the Fourth Circuit stopped short of ruling that transgender students have a Title IX right to use restroom facilities consistent with their gender identities, the Circuit’s deference to the Department of Education’s position strongly suggests that Title IX applies to transgender students. Some interested parties, including the ACLU, interpret the Fourth Circuit’s decision as a mandate that all states in its jurisdiction fall in line with the Department of Education’s position; and it is noteworthy that the Fourth Circuit includes North Carolina, which passed a law in March 2016 limiting bathroom access in government buildings (including public schools) to the facility that corresponds to the individual’s physical birth gender. However, while this is a possible result, the implications of the Fourth Circuit decision remain to be fully realized. Implications for Schools in New York It is possible that other federal jurisdictions, including the Second Circuit, will follow the Fourth Circuit’s lead and defer to the Department of Education regulations. It is also possible that some courts will go a step further and on their own find that, independent of the Department’s regulations, Title IX requires that schools permit transgender individuals access to the facilities consistent with their gender identities. In July of 2015 the New York State Education Department (NYSED) published a guidance document consistent with the U.S. Department of Education’s position. It sets forth an expectation that schools in New York ensure that the transgender and gender nonconforming members of their community are not subject to discrimination or harassment. The NYSED guidance document specifically addresses how to handle restroom and locker room access, names and pronouns, and student records. Transgender students’ rights remain an evolving area, but the Fourth Circuit’s April 19th decision indicates that the Department of Education’s interpretation is the standard to which secondary schools and colleges and universities will be held. It is also very possible that the Department of Education Office for Civil Rights (OCR) will focus on transgender and gender nonconformity issues in schools with heightened interest. We encourage clients to reach out to us with questions about this decision and the Department of Education’s expectations.

Enough is Enough Becomes Law

July 8, 2015

By Philip J. Zaccheo

As expected, New York Governor Andrew M. Cuomo signed the “Enough is Enough” legislation into law on July 7, 2015.  As a result, the majority of the legislation’s provisions imposing obligations on colleges and universities will become effective 90 days from that date, on October 5, 2015.  Of course, institutions can, and likely will want to, make the necessary modifications to their policies, procedures and practices in advance of the effective date, so as to avoid the need to alter processes during the upcoming academic year. The provisions of the legislation requiring biennial campus climate assessments and statistical reports to the New York State Department of Education will become effective in one year, on July 7, 2016. Bond is discussing the legislation’s provisions in detail with our college and university colleagues in our ongoing statewide briefings, and will continue to do so in our Higher Education Law Report blog.