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Give credit where credit is due

There have been a fair number of questions concerning the pending August 1 implementation of new Title IX regulations.

  • What should administrators do if Title IX conflicts with state law?
  • How much training should districts provide to employees?
  • What are the most significant changes?

First, let’s get back to my reference of giving credit where credit is due. I strongly encourage all of you to read an outstanding AASA blog post about the current Title IX situation. Ms. Wernz, an attorney who specializes in issues of federal law, threaded the needle with her recommendations regarding how administrators and districts would be wise to hedge their bets regarding the amount of time and focus given to the new regulations, while still paying attention to important points.

It is well established in our country both historically and in our legal system that states provide the foundation for the education of our students. With that in mind, and considering the current leaning of the judges on both the 8th Circuit Court of Appeals and the United States Supreme Court, it is my professional opinion that any conflict between Iowa law and the new Title IX regulations would likely be decided on behalf of the State of Iowa. Furthermore, the Iowa Code has provided immunity for Iowa educators’ implementation of such provisions, such as regarding use of restrooms, locker rooms, and participation on female athletic teams. While Iowa is not currently involved in any of the current federal cases regarding Title IX implementation, I would not be surprised if the state is involved in such litigation soon.

In the meantime, here are a number of my recommendations, with the knowledge that Title IX regulations will be implemented August 1, unless a federal stay is entered:

  1. If you haven’t already, please discuss this topic with your district’s legal counsel. At the end of the day, they are the individuals who will be standing beside you if the district goes to court.
  2. Ensure your Title IX coordinator has received training on the upcoming changes, so they may help to lead and direct Title IX implementation in the district. This might occur through your district counsel, or training in-person or online.
  3. Ensure other employees receive basic training on the topic, so they understand their duty to report concerns about Title IX violations. This training might come through a brief video, or even a PowerPoint or other presentation sent or delivered to the staff.
  4. Ensure both students and staff members are made aware of their rights and how they might file a complaint.
  5. Ensure policies are updated with information from IASB, your district counsel, and federal guidance and samples.

While the changes are too numerous to mention in one column, I will note several of the most significant provisions:

  1. Clarifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. (§ 106.10). Also clarifies that sex-based harassment includes harassment on these bases and further clarifies when sex-based harassment creates a hostile environment. (§ 106.2).
  2. Clarifies that a school has an obligation to address a sex-based hostile environment under its education program or activity even when some conduct alleged to be contributing to the hostile environment occurred outside the school’s education program or activity or outside the United States. (§ 106.11)
  3. Prohibits discrimination against students, employees, or applicants, based on pregnancy or related conditions, and requires schools to take actions to prevent sex discrimination and ensure equal access to the school’s education program or activity, such as by providing reasonable modifications for students, reasonable break time for lactation for employees, and lactation space for students and employees. (§§ 106.40(b)(3) and 106.57(e)).
  4. Sets out the steps a school must require its Title IX Coordinator to take when the school has knowledge of conduct that reasonably may constitute sex discrimination, including offering and coordinating supportive measures, when to initiate a complaint, and taking prompt and effective action to end sex discrimination and prevent its recurrence. This provision also permits a school to offer an informal resolution process except where a complaint includes allegations that an employee engaged in sex-based harassment of an elementary school or secondary school student or if such a process would conflict with Federal, State, or local law. (§ 106.44)
  5. Requires list of grievance procedures for all sex discrimination complaints. (§ 106.45)
  6. The final regulations define hostile environment harassment as unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the school’s† education program or activity. (§ 106.2)
  7. A school with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity must respond promptly and effectively. (§ 106.44(a)(1)). A school must also take the actions outlined in § 106.44(b)–(k) to address sex discrimination in its education program or activity. (§ 106.44(a)(2)).
  8. The final regulations obligate a school to require certain employees to notify the Title IX Coordinator when the employees have information about conduct that reasonably may constitute sex discrimination. Any non-confidential employee at an elementary school or secondary school is obligated to notify the Title IX Coordinator. (§ 106.44(c)(1)). [Confidential employees are certain employees who hold a license which requires confidentiality, such as some counselors, social workers, mental health professionals, and medical staff. Please check with your district counsel regarding which employees they consider “confidential” in your district.]
  9. To ensure that a school’s education program or activity is free from sex discrimination while also respecting complainant autonomy, the final regulations require a school to provide clear information and training (§ 106.8(d)) on when their employees must notify the Title IX Coordinator about conduct that reasonably may constitute sex discrimination (§ 106.44(c)) and how students can seek confidential assistance (§ 106.44(d)) or make a complaint of sex discrimination requiring the school to initiate its grievance procedures. (§ 106.45(a)(2)).
  10. The final regulations permit a school to offer an informal resolution process if appropriate whenever it receives a complaint of sex discrimination or has information about conduct that reasonably may constitute sex discrimination. Participation in informal resolution must be voluntary.  Informal resolution is not permitted in situations in which an employee allegedly engaged in sex-based harassment of an elementary school or secondary school student or if such a process would conflict with Federal, State, or local law. (§ 106.44(k))
  11. Under the final regulations, all schools are required to adopt grievance procedures in writing (§ 106.45(a)(1)) that incorporate the requirements of § 106.45.
  12. The final regulations prohibit a school from disclosing personally identifiable information obtained in the course of complying with Title IX, with limited exceptions, such as when the school has prior written consent or when the information is disclosed to the parent of a minor. (§ 106.44(j))

Sorry to give you some extra homework and reading over the summer, but time was of the essence on this one.

Stay well, and hope to see all of you at SAI!

Matt