The Department of Justice’s Civil Rights Division released a March 26, 2021 memorandum explaining the Division’s position that Title IX prohibits discrimination on the basis of transgender and sexual orientation status. In so concluding, the Division seeks to expand to Title IX the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., which held that Title VII’s definition of “sex” prohibited discrimination on the basis of sexual orientation and gender identity in the employment context.
The Division characterizes its advice as a supposed “starting point” for federal agencies. But it is more than that—the DOJ “is charged with coordination of the implementation and enforcement of Title IX by Executive agencies.” As such, the Division’s guidance will be highly instructive to federal agencies—most (if not all) are likely to follow suit—as well as the courts. Continue reading “Civil Rights Division of DOJ Explains Title IX Protects Gender Identity and Sexual Orientation Status, Bringing High-Stakes Showdown with Contrary State Laws One Step Closer”
On March 17, 2021, Southern District of New York Judge Lorna G. Schofield ruled that most of the 2019 Borrower Defense to Repayment Rule would survive cross-motions for summary judgement. On one issue, however, Judge Schofield ruled for the Plaintiff, the New York Legal Assistance Group (NYLAG), finding that the 2019 Rule’s three-year statute of limitations on defensive claims was not a logical outgrowth of and deviated too sharply from the 2018 Notice of Proposed Rulemaking. Continue reading “The 2019 Borrower Defense Rule Survives Summary Judgment (Mostly) Intact”
On March 8, 2021, the Biden Administration published an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” In short, the EO requires the U.S. Department of Education to reassess how it directs college campuses to investigate sexual violence – specifically, the 2020 Title IX Rule, 85 FR 30026 – as well as other regulations related to Title IX. Continue reading “President Biden Issues Executive Order Directing U.S. Department of Education to Reassess Title IX Rules”
On Feb. 22, 2021, the U.S. Department of Education distributed the FY 2018 draft cohort default rate (CDR) notification packages to all eligible domestic and foreign schools for those schools enrolled in the Electronic Cohort Default Rate (eCDR) notification process. Any school not enrolled in eCDR may download their cohort default rates and accompanying Loan Record Detail Reports from the National Student Loan Data System (NSLDS®) via the NSLDS Professional Access website.
The time frame for appealing the FY 2018 draft cohort default rates under 34 C.F.R Part 668, Subpart N begins on Tuesday, March 2, 2021 for all schools.
Under the Title IV financial responsibility regulations at 34 C.F.R. 668.171(d)(6), the Department has discretion to determine that a Title IV institution is not able to meet its financial or administrative Title IV obligations (which can lead to a letter of credit requirement or other potential adverse action) if the institution’s two most recent official cohort default rates are 30 percent or greater and such circumstance is likely to have a material adverse effect on the financial condition of the institution, unless the institution has a challenge, adjustment or appeal pending or successfully finalized.
Note that any school that did not have a borrower in repayment, during the current or any of the past cohort default rate periods, will not receive a FY 2018 draft cohort default rate notification package. These schools are considered to have no cohort default rate data and no cohort default rate.
As anticipated by our prior post, President Biden issued an executive order on his first day in office addressing gender identity and sexual orientation discrimination. In doing so, President Biden is taking aim at dismantling the recently published Department of Education’s internal memorandum, which concluded Title IX’s protections against discrimination on the basis of “sex” do not generally extend to sexual orientation or gender identity.
In the order, Continue reading “Biden Issues Executive Order Regarding Gender Identity and Sexual Orientation Discrimination”
On January 8, 2021, the Department of Education (“Department”) publicly released a 13-page internal memorandum from the Department’s Office of the General Counsel to the Department’s Office for Civil Rights that sets forth an analysis of Title IX as it relates to sexual orientation and transgender status. Specifically, the memo addresses the impact of the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) on Title IX. Bostock held that the definition of “sex” in Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity, including transgender status.
The memo’s analysis focuses on 5 questions:
- Does the Bostock decision construe Title IX?
- Does Bostock affect the meaning of “sex” as that term is used in Title IX?
- How should OCR view allegations that a recipient targets individuals for discriminatory treatment on the basis of a person’s transgender status or homosexuality?
- After Bostock, how should OCR view allegations of employment discrimination or sexual harassment based on an individual’s transgender status or homosexuality?
- How does the Department interpret Title IX and its implementing regulations in light of Bostock with respect to athletics, intimate facilities, religious exemptions, and other sex-segregated programs or activities addressed under Title IX and its regulations?
The memo concludes Continue reading “In One of Its Final Actions, Department of Education Releases Internal Memorandum Analyzing Title IX as it Relates to Sexual Orientation and Gender Identity”
On October 9, 2020, the Department of Education (the “Department”) posted an Electronic Announcement announcing the rescission of and replacement for the 2016 Handbook for Campus Safety and Security Reporting. Through this announcement, the Department is rescinding the guidance in the 2016 Handbook and replacing it with a Clery Act Appendix to the Federal Student Aid (“FSA”) Handbook. The electronic announcement identifies and explains the significant changes between the 2016 edition and the new Clery-related Appendix. The Department anticipates that this rescission and publication of the new Appendix will help simplify Clery compliance. Continue reading “Department of Education releases new Clery Act Appendix; Rescinds 2016 Handbook for Campus Safety and Security Reporting”
The new Title IX Rule is now in effect as of today (Aug. 14, 2020). As such, all K-12 and postsecondary academic institutions that receive Title IV funding are required to have Title IX policies and procedures in place and to be implementing them going forward. As our readers will remember from our prior in-depth Client Alert, the new Rule governs employees and students, can include incidents on and off campus, requires institutions to adopt a formal process for investigating and resolving complaints (including a live hearing with cross-examination), and an appeals process.
Concurrent with the new Title IX Rule going into effect today, the Department of Education launched a Title IX website. The website is a repository Continue reading “As New Title IX Rule Goes into Effect, Department Launches New Title IX Website”
In a welcome bit of regulatory relief at time when institutions of higher education are working to comply with a new Title IX rule by August 14, 2020, the Department announced on July 10 that it is extending the date for institutions to distribute their Annual Security Report (ASR) and Annual Fire Safety Report (AFSR) to required recipients to December 31, 2020 (from October 1). The Department does encourage institutions to distribute their reports on the normal schedule if possible.
In addition, the electronic annual crime and fire statistics survey will now be open now from November 18, 2020 through January 14, 2021 for transmission of data to the Department.
The Department states in its July 10 announcement that it “encourages schools to take appropriate steps to ensure the health and safety of their students and employees, to continue to act in accordance with their campus safety policies and procedures, and to advise the campus community about changing conditions that may affect their safety or any major changes to safety policies or practices.” Institutions continuing or returning to partial or full on ground operations should keep in mind that they are still obligated to comply with their published campus safety policies and procedures, including with regard to emergency notifications and crime statistics collection and reporting. Any changes to published procedures should be communicated to the campus community.