Category: Education

Department of Education Unveils Proposed Title IX Regulations

On Friday, November 16, 2018, the Department of Education (DOE) released proposed Title IX regulations dictating the process by which colleges and universities must handle allegations of sexual misconduct.

Institutions of higher education have been in limbo since September 2017 when the DOE rescinded Obama-era guidance that called for hard-hitting enforcement of Title IX and issued interim guidance as a placeholder until they could engage in the formal rulemaking process. Today’s proposed regulations, if enacted, will take the place of the DOE’s September 2017 interim guidance.  According to the DOE, the new regulations would substantially decrease the number of investigations into complaints of sexual misconduct and save institutions millions over the next decade.

Many of the new regulations deviate significantly from prior guidance. The most significant changes increase the discretion given to universities in crafting procedures for adjudicating Title IX claims within their institutions.  The proposed guidance allows universities to choose the applicable evidentiary standard (either “preponderance of the evidence” or “clear and convincing evidence”) in determining responsibility, as long as it is consistent with the standard used in other student disciplinary matters.  The new regulations also permit the use of informal resolution processes to resolve sexual misconduct allegations if the parties agree.

Other notable provisions of the proposed regulations include the following:

  • The definition of “sexual harassment” has been more narrowly defined as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
  • For purposes of administrative enforcement, universities would be held to a “deliberately indifferent” standard. In other words, to avoid liability, a university with “actual knowledge” of sexual harassment need only respond in a manner that is not “deliberately indifferent.” An institution would be found deliberately indifferent “only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.”
  • “Actual knowledge” is defined in the proposed regulations as notice of sexual harassment or allegations of sexual harassment provided to an official of the institution “who has the authority to institute corrective measures on behalf of the [institution].” In contrast to prior guidance, this definition excludes most professors, administrators, and staff.
  • Under the proposed regulations, universities would no longer be allowed to investigate allegations of sexual harassment that occurred off-campus.
  • The proposed regulations would require universities to provide written notice to a respondent upon receipt of a complaint, which would include a statement that the responding party is presumed to be not responsible for the alleged conduct and that a determination of responsibility will be made at the end of the grievance process.
  • Live fact-finding hearings would be mandatory for universities under the new regulations. Investigators would also be precluded from serving as factfinders.  This would eliminate the use of the single investigator model currently used by many universities.
  • Universities must permit cross-examination of any party or witness by the opposing party’s advisor, but not by the party him/herself.  If a party or witness refuses to submit to cross-examination, that person’s testimony could not be relied on by the fact-finder. The party’s choice of advisor could not be limited by the institution of higher education.
  • Religious institutions of higher education would no longer be required to seek assurances of exemption from Title IX regulations in advance of a DOE investigation. Under the new regulations, a religious institution of higher education could invoke an exemption to Title IX’s requirements at any time during the investigation.

The new regulations address other topics such as constitutional issues and the intersection between Title IX and Title VII of the Civil Rights Act. They also clarify that, just as an institution’s treatment of a complaining party may constitute discrimination based on sex, an institution’s treatment of the responding party may also constitute discrimination based on sex. Institutions of higher education must continue to comply with all applicable state laws regarding sexual misconduct and sexual misconduct investigations.

Now that the proposed regulations have been published, the public has sixty days to submit comments before the regulations go into effect. The final regulations, however, are likely to closely mirror what has been proposed today, and colleges and universities should act immediately to carefully review their sexual misconduct policies and practices for compliance.

 

Jackson Lewis P.C. © 2018
This post was written by Susan D. Friedfel, Monica H. Khetarpal Marla N. Presley Crystal L. Tyler and Hobart J. Webster.

State of Washington Enacts Student Loan Servicing Law

Washington has become the latest state to impose a licensing requirement on student loan servicers. Yesterday, Governor Jay Inslee signed  SB 6029, which establishes a “student loan bill of rights,” similar to the bills that have been enacted in California, Connecticut, the District of Columbia, and Illinois.

The law’s requirements include the following:

  • Creation of Advocate Role: The law creates the position of “Advocate” within the Washington Student Achievement Council to assist student education loan borrowers with student loans. This role is analogous to that of “ombudsman” under proposed and enacted servicing bills in other states.  One of the Advocate’s roles is to receive and review borrower complaints, and refer servicing-related complaints to either the state’s Department of Financial Institutions (“DFI”) or the Attorney General’s Office, depending on which office has jurisdiction. The Advocate is also tasked with:
    • Compiling information on borrower complaints;
    • Providing information to stakeholders;
    • Analyzing laws, rules, and policies;
    • Assessing annually the number of residents with federal student education loans who have applied for, received, or are waiting for loan forgiveness;
    • Providing information on the Advocate’s availability to borrowers, institutions of higher education, and others;
    • Assisting borrowers in applying for forgiveness or discharge of student education loans, including communicating with student education loan servicers to resolve complaints, or any other necessary actions; and
    • Establishing a borrower education course by 10/1/20.
  • Licensing of Servicers: SB 6029 requires servicers to obtain a license from the DFI. There are various exemptions from licensing for certain types of entities and programs (trade, technical, vocational, or apprentice programs; postsecondary schools that service their own student loans; persons servicing five or fewer student loans; and federal, state, and local government entities servicing loans that they originated), although such servicers would still need to comply with the statute’s substantive requirements even if they are not licensed.
  • Servicer Responsibilities: All servicers, except those entirely exempt from the statute, are subject to various obligations. Among other things, servicers must:
    • Provide, free of charge, information about repayment options and contact information for the Advocate ;
    • Provide borrowers with information about fees assessed and amounts received and credited;
    • Maintain written and electronic loan records;
    • Respond to borrower requests for certain information within 15 days;
    • Notify a borrower when acquiring or transferring servicing rights; and
    • Provide borrowers with disclosures relating to the possible effects of refinancing student loans.
  • Modification Servicer Responsibilities: The bill imposes a number of requirements on third-parties providing student education loan modification services, including mandates that such persons: not charge or receive money until their services have been performed; not charge fees that are in excess of what is customary; and immediately inform a borrower in writing if a modification, refinancing, consolidation, or other such change is not possible.
  • Requirements for Educational Institutions: Institutions of higher education are required to send borrower notices regarding financial aid.
  • Fees: The bill also calls for the establishment, by rule, of fees sufficient to cover the costs of administering the program created by the bill.
  • Bank Exemption: The statute provides for a complete exemption for “any person doing business under, and as permitted by, any law of this state or of the United States relating to banks, savings banks, trust companies, savings and loan or building and loan associations, or credit unions.” Notably, this exemption does not expressly cover state banks chartered in other states.

As we recently noted, bills like  SB 6029 are being introduced in legislatures across the country at an increasing rate, and we are continuing to track the progress of these proposals as they move through various statehouses.

Hopefully the torrent of such proposals will soon be reduced to a trickle, now that the U.S. Department of Education has formally weighed in on this trend, issuing an interpretation emphasizing that the Higher Education Act, federal regulations, and applicable federal contracts preempt laws like SB 6209 that purport to regulate federal student loan servicers.

 

Copyright © by Ballard Spahr LLP 2018
This post was written by Jeremy C. Sairsingh of Ballard Spahr LLP.

               

Education Secretary Signals Shift in Title IX Policy for Dealing with Sexual Misconduct Allegations

On September 7, 2017, Secretary of Education, Betsy DeVos announced a marked policy shift in how the Department of Education will approach Title IX enforcement with regard to sexual misconduct. DeVos indicated that the Department plans to withdraw the controversial Dear Colleague Letters issued during the Obama administration. Instead, the Department will issue formal regulations that will establish a new Title IX framework for educational institutions investigating and responding to sexual misconduct allegations. The full text of Secretary DeVos’s speech can be found here.

Title IX has been a dominant topic in higher education since 2011, when the Obama Administration issued the “Dear Colleague Letter” explaining that a failure to adequately address sexual misconduct on campus constituted discrimination on the basis of sex in education programs under Title IX.[1] Among other things, the Dear Colleague Letter set forth how schools should respond to sexual misconduct, dictated specific procedures schools must follow to investigate and adjudicate such misconduct, and established various other requirements such as climate surveys, standards of proof, and survivor sensitivity. The Letter made clear that a failure to meet these expectations, and the expanded guidance issued by the Department in 2014, could result in a loss of federal funding, and thus had a swift and substantial impact on the way educational institutions responded to reports of sexual assault or harassment.

In a speech at the George Mason University School of Law on September 7, 2017, Secretary DeVos said that schools will still be required to address sexual misconduct. However, she announced the Department would be rescinding the Dear Colleague Letters and instead regulate through actual regulations, subject to notice and comment. Secretary DeVos lamented that “for too long, rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees.” She made it clear that “the era of ‘rule by letter’ is over.” DeVos emphasized the Department’s ongoing commitment to protecting victims of sexual violence. But she also clearly signaled that the Department will pay more attention to the due process rights of the accused, including questioning the “preponderance of the evidence” standard that the Department required all schools to use in adjudicating sexual misconduct cases. DeVos promised to work more closely with educational institutions, rather than operating “through intimidation and coercion.” And she said the Department would be open to exploring alternative methods of enforcing Title IX, including the possibility of voluntary regional centers where outside professionals would be available to handle Title IX investigations and adjudications.

DeVos did not indicate exactly what the new Department rules might entail, or when they will come into effect, nor has there been an official withdrawal of the Dear Colleague Letter yet. DeVos did indicate, however, that the Department will base the new rules on public feedback and will take into account the views of educational institutions, professionals, and individual students. In her closing remarks, DeVos noted that the Department of Education’s “interest is in exploring all alternatives that would help schools meet their Title IX obligations and protect all students. [The Department] welcome[s] input and look[s] forward to hearing more ideas.”[2]

Schools should take advantage of the Secretary’s call for comments, as the Department moves towards the development and implementation of a different and hopefully clearer set of rules governing the enforcement of Title IX. However, schools should also anticipate a period of uncertainty until final rules are issued. Moreover, schools should be aware of the continuing (and possibly conflicting) state law obligations that have been put into place following the Dear Colleague Letter. For example, many states including Connecticut and New York have passed legislation mandating use of the preponderance of the evidence standard in evaluating sexual misconduct on college campuses. We anticipate further, more detailed guidance in the next few weeks as the Department of Education works to implement Secretary DeVos’s policy announcements.

[1] 20 U.S.C. §§ 1681 et seq.; 34 C.F.R. Part 106.

[2] Secretary DeVos Prepared Remarks on Title IX Enforcement, available here.

 This post was written by Benjamin Daniels, Aaron Bayer, & Dana M. Stepnowsky of Wiggin and Dana LLP., © 1998-2017

Back to School: Preparing for Campus Unrest

In the wake of the deadly Charlottesville protests, institutions of higher education are under heightened pressure to prepare their campuses for disruption and unrest.  Many colleges and universities have open campuses, enjoy historic visibility in their communities, and place a high value on free speech, expression, and the exchange of ideas, exposing them to unique challenges in planning for protests and civil disobedience.  As this academic year begins, it is critical that campus administrators equip themselves and their communities to manage and, when appropriate, to take affirmative steps to prevent campus unrest, whether initiated by student groups or third parties.

The proactive development of sound and well-thought out policies that balance the value of speech with the institution’s compelling interests in safety and preventing the disruption of campus operations is the foundation for successful management of these situations.  Now more than ever, it is important, even for institutions that have not experienced significant campus unrest in the past, to develop a model response to campus unrest and determine whether institutional policies permit and support this model.

Institutions should review their policies to determine (1) what procedures are in place for managing and monitoring student protests and demonstrations; and (2) how much authority they have to limit or condition access to their campus by third parties.  Thoughtfully drafted campus facilities use, protest, and demonstration policies can effectively set expectations and establish procedures for regulating picketing, protesting, and demonstrating on campus by students and third parties.  But they are not the only policies that demand attention, review, and coordination.  Other policies that may dictate how and to what extent an institution can control or limit civil disobedience on campus may include:

  • Campus trespass policies;

  • Policies that describe the purpose and use of campus;

  • Facilities use and event policies;

  • Academic freedom and other speech or expression policies;

  • Tabling, bulletin board, leafletting, or chalking policies;

  • Emergency response and other communications policies;

  • Student organization policies;

  • Policies that describe or limit the carrying and use of weapons on campus; and

  • Student codes of conduct.

In reviewing their policies, administrators should consider how they limit access to campus, including the rhetoric used to describe the institution’s values, which groups and individuals can reserve and use delineated spaces, and whether campus streets are publicly accessible or can be limited with regard to pedestrian and automobile traffic.  Institutions should ensure that their facilities use policies contain clear and publicized registration procedures requiring sufficient notice of all pertinent details of a proposed event.  Policies must also permit action to move or shut down an event in the event of an emergency, violation of policy, or disruptive conduct, and to undertake disciplinary and law enforcement action where appropriate.

Any number and configuration of campus constituencies can be affected by regulations on campus speech.  Administrators should be mindful of who their institutional policies are intended to target—students or third parties—and draft their policies to clearly cover only the intended targets.  Administrators should also be aware of unintentional targets, considering, for example, how the policies will apply when a student group brings a third party to campus or when the protesters are alumni.

Institutions should be wary of a one-size-fits-all approach.  While it can be instructive to review other schools’ policies, what works for a large, public institution will almost certainly not work for a small, private institution.  In particular, while public institutions must remain keenly aware of the First Amendment implications of limiting speech on campus, private institutions must be careful that their policies do not inadvertently grant students and third parties “rights” that they are not otherwise due and may be difficult for the institution to support.

Now is the time—even if your academic year has already begun—to examine, revise and coordinate implementation of pertinent policies so that administrators may smoothly, safely, and consistently address campus access, facilities use, and potential unrest as it may develop.

This post was written by  Beth Tyner Jones and Liz LeVan Riley and Rebecca C. Fleishman of  Womble Carlyle Sandridge & Rice, PLLC.
More analysis at the National Law Review.

U.S. Department of Education Delays Certain Gainful Employment Disclosure Requirements

In its latest action regarding the “Gainful Employment” regulations promulgated under the Obama administration, late on June 30, 2017, the U.S. Department of Education (“the Department”) announced a delay in certain disclosure requirements that were to have taken effect on July 1, 2017. This announcement occurred through Electronic Announcement #106, a pre-publication draft Federal Register notice (which will appear in the Federal Register on July 5, 2017) and an official press release.

The Gainful Employment regulations require all education programs offered by proprietary institutions of higher education, and non-degree programs offered by public and private nonprofit institutions, to meet specific debt-to-earnings measures in order to remain eligible for federal student financial aid. Additionally, the regulations require institutions to provide extensive informational disclosures to students regarding their Gainful Employment programs, and to issue warnings to students when a program is in danger of losing its eligibility for federal student financial aid. As described in a previous alert, the Department announced on June 16, 2017, that it will establish a negotiated rulemaking committee to develop proposed revisions to the Gainful Employment regulations; however, that prior announcement did not alter the effectiveness of the current regulations.

Through this latest announcement, the Department has now delayed until July 1, 2018, the requirements for institutions to include a link to the required Gainful Employment program disclosure template in all promotional materials, to provide a copy of the required template to all students on an individual basis, and to receive acknowledgements from individual students that they received the template. Importantly, institutions are still required as of July 1, 2017, to incorporate the new Gainful Employment program disclosure template into their website descriptions of educational programs offered.

Please also note that unless an institution submitted a timely notice of intent to appeal its programs’ Gainful Employment measures to the Department in late January, this latest action does not affect the regulatory requirement to issue student warnings for programs in danger of losing federal student financial aid eligibility because of those measures.

This post was written by John R. Przypyszny and Jonathan D. Tarnow of Drinker Biddle & Reath LLP.

What to Expect under Secretary of Education Betsy DeVos

Betsy DeVos secretary of educationAfter an unusually contentious Senate confirmation process, Betsy DeVos was confirmed as U.S. Secretary of Education on February 7, 2017.

DeVos has a record of promoting charter schools and school vouchers at the K-12 level, but little is known about her priorities for higher education. Her prepared comments and responses during her Senate confirmation hearing avoided specifics, promising only to work with lawmakers toward common goals.

Her early priorities with respect to higher education likely will include:

  1. Student debt and the cost of college;
  2. Regulation of for-profit colleges; and
  3. Enforcement of Title IX of the Education Amendments of 1972.

Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Student Debt and the Cost of College

DeVos’s opening statement at the Senate confirmation hearing addressed concerns about rising amounts of student debt. “There is no magic wand to make the debt go away, but we do need to take action. It would be a mistake to shift that burden to struggling taxpayers without first addressing why tuition has gotten so high,” she said.

The Administration can be expected to propose alternatives to federally funded loan programs. On student debt, President Donald Trump had stated that he would alter the Obama Administration’s income-based repayment plan. Trump’s proposed plan would be funded by reducing federal spending.

For-Profit Colleges

The Obama Administration took significant measures to regulate for-profit colleges and the expenditure of federal monies. For example, the gainful-employment rule penalized higher education institutions that left graduates with a level of debt not commensurate with their earning potential.

Senator Elizabeth Warren pressed DeVos on her plans for combatting fraud and whether she intended to enforce the gainful-employment rule. DeVos responded, “We will certainly review that rule and see that it is actually achieving what the intentions are.”

It is expected the Administration will scale back oversight of for-profit colleges and postsecondary education generally.

Title IX

On her plans for enforcing Title IX, DeVos continued with her noncommittal responses. She said it would be “premature” for her to commit to continuing the Obama Administration’s enforcement of Title IX. DeVos stated only, “If confirmed, I look forward to understanding the past actions and the current situation.” It remains to be seen the extent to which she will withdraw or modify existing guidance. One aspect of the guidance that has received significant criticism in the past, and may be subject to change, is the designation of “preponderance of the evidence” as the standard of proof.

ARTICLE BY Susan D. Friedfel, Monica H. Khetarpal & Benjamin L. Rouder of Jackson Lewis P.C.

Jackson Lewis P.C. © 2017

Betsy DeVos Moves toward Confirmation despite Opposition

Betsy DeVosDepartment of Education Announces New Staff and Open Title IX Investigations

Opposition to Betsy DeVos Builds

Joining other professional education associations, the National Association of Secondary School Principals announced in a letter to the Senate HELP Committee that it opposes the confirmation of Betsy DeVos as Secretary of Education.

Senate offices have reported tens of thousands of calls and letters encouraging a no vote on Mrs. DeVos’s confirmation. Sens. Bob Casey (D-PA), Bernie Sanders (I-VT), Kamala Harris (D-CA), Al Franken (D-MN), Chris Murphy (D-CT), and Tim Kaine (D-VA) have indicated they will vote against confirming Mrs. DeVos to serve as Secretary of Education. However, she only needs 51 votes to be confirmed and Republicans, currently holding 52 seats in the Senate, have given their strong support for Mrs. DeVos. A HELP Committee vote to move forward with her confirmation process is scheduled for Tuesday, January 31.

This Week’s Hearings:

  •  On Tuesday, January 31, the Senate Committee on Health, Education, Labor, and Pensions will hold a meeting to vote on committee rules and subcommittee membership during the 115th Congress and to vote on the nomination of Betsy DeVos to be Education secretary.

  • On Wednesday, February 1, the House Committee on Education and the Workforce will hold a hearing titled, “Rescuing Americans from the Failed Health Care Law and Advancing Patient-Centered Solutions.”

  • On Thursday, February 2, the House Committee on Education and the Workforce Subcommittee on Early Childhood, Elementary, and Secondary Education will hold a hearing titled, “Helping Students Succeed through the Power of School Choice.”

 Regulatory Updates

 Department of Education Delayed Title IX Investigations List

This week, the Department of Education delayed weekly updated list of colleges under investigation for mishandling sexual assault cases. Under President Obama, the department released the list at the beginning of each week and the delay under the new Trump Administration has worried advocates that there may be less transparency in the new department. Sen. Patty Murray (D-WA), ranking member of the Senate HELP Committee, criticized the department for not releasing the list. The list was ultimately released late on Thursday, January 26 and included two new investigations. Department officials said the delay was a “misunderstanding” due to transition between administrations, but advocates in and out of Congress have indicated they will keep a close eye on the department to ensure all sexual assault cases are handled properly.

Trump Administration Brings on New Education Staff

Josh Venable, top candidate for chief of staff at the Department of Education, has been officially brought over from the transition team. Former Bush and Obama administration staffer Jim Manning, as well as Stanley Buchesky, former venture capital managing partner, were also sworn in last Friday, while the White House works to finalize their job responsibilities. Most surprisingly included in the new education hires is Jason Botel, now a senior White House adviser for education, who donated to former President Obama’s campaign in 2008 and has served in Teach for America, founded KIPP Baltimore, and was most recently executive director of MarylandCAN.

Other staff include the following:

  • Derrick Bolen;

  • Debbie Cox-Roush;

  • Kevin Eck;

  • Holly Ham;

  • Ron Holden;

  • Amy Jones;

  • Andrew Kossack;

  • Cody J. Reynolds;

  • Patrick Shaheen;

  • Eric Ventimiglia;

  • Beatriz Ramos;

  • Jerry Ward; and

  • Patrick Young

ARTICLE BY Emily Wilson of Squire Patton Boggs (US) LLP

© Copyright 2017 Squire Patton Boggs (US) LLP

Post-Election Outlook for Higher Education

higher educationAmerican higher education confronts a starkly different reality today in the aftermath of an election that yielded both a Republican administration and a Congress with Republican majorities in the House and Senate.  While the full impact may take years to assess, a preliminary review suggests some results are likely in the near term, including:

  • Dramatic changes in Department of Education enforcement actions based on departmental guidance;

  • Less government support for public institutions as Republicans seek to constrain both state and federal spending;

  • Less support for the concept of free community college;

  • Substantial changes in the manner in which federal student aid is administered;

  • Added scrutiny of institutions with large endowments;

  • Greater pressure for lower tuition.

In the long term, the federal regulatory environment will stabilize, and institutions can adapt to the new environment in which they will operate.  For now, institutions facing enforcement actions based on departmental guidance should consider the likely impact of the election on enforcement actions based on departmental guidance.  A new set of policy makers will soon be ensconced at the Department of Education, and their priorities can be expected to be quite different.  Those changes in priorities will be quickly reflected in changes in guidance documents, and the revised guidance documents could either be helpful or harmful to institutions currently subject to enforcement actions.

ARTICLE BY James H. Newberry Jr.
© Steptoe & Johnson PLLC. All Rights Reserved.

Fourth Circuit Appeals Court Rules in Favor of Transgender Student

Schools across the country have found themselves at the forefront of the societal debate on the appropriate manner in which to address issues surrounding accommodation of transgendered persons. Conflicting regulatory rulings, contemplated state legislation, and in the case of North Carolina, state prohibitions on accommodation have led to a patchwork of inconsistencies and doubt in relation to a school district’s legal duties.

On Tuesday, April 19, the United States Court of Appeals for the Fourth Circuit ruled in favor of a transgender student, Gavin, who was born female and wished to use the boys’ restroom at his rural Virginia high school. The ruling, G.G. v Gloucester County Sch. Bd., No. 15-2056 (4th Cir., Apr. 19, 2016), is significant, as it marks the first time that a federal appellate court has ruled that Title IX extends to protect the rights of transgender students to use the bathroom that corresponds with the student’s gender identity.

Gavin had previously been granted approval by administration to use the boys’ restroom and did so for a short period of time until the school board adopted a policy prohibiting him from using the bathroom of the gender with which he identifies. Instead, according to board policy, Gavin was required to use the restroom of his biological gender or a separate, unisex restroom. Gavin filed a lawsuit claiming that the school board impermissibly discriminated against him in violation of Title IX and the Equal Protection Clause.

In reaching its decision, the Fourth Circuit Court of Appeals analyzed the Department of Education (“DOE”) regulations implementing Title IX. Those regulations permit schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the facilities are comparable. The question the Court faced in light of this regulatory guidance was how to apply the “separate but equal” mandate to transgender individuals.

The DOE argued that the regulation should be interpreted to mean that schools generally must treat transgender students consistent with their gender identity; the Gloucester school board argued for an interpretation that defined students consistent with their biological sex. The Court recognized that the plain language of the regulation clearly permits schools to provide separate toilet, locker room, and shower facilities for its male and female students. By implication, the regulation also permits schools to exclude males from the female facilities, and vice versa. Although the regulation is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms, the Court concluded it is susceptible to two interpretations – determining maleness or femaleness is either a matter exclusively of biology, or it is a matter of gender identity.

The Court agreed that public restrooms, locker rooms, and showers historically have been separate on the basis of sex, and that individuals have a legitimate and important interest in bodily privacy. Nonetheless, the Court stated that these safety concerns or privacy interests should be addressed by the DOE or Congress, and not the Court. Thus, the Court held that it was required to afford deference to the DOE’s interpretation. In so doing, the Court held that an individual’s sex should be determined by reference to the student’s gender identity, i.e., consistent with DOE interpretation.

The Fourth Circuit only addressed the student’s claims with respect to Title IX and whether Title IX extends to gender identity. The case has been remanded back to the district court to decide whether the school board violated Title IX and the Equal Protection clause of the 14th Amendment. However, the Fourth Circuit’s ruling only has precedential value in that circuit (encompassing Maryland, Virginia, West Virginia, North Carolina, and South Carolina), which means those states are now required to follow the DOE’s interpretation of Title IX – that schools generally must treat transgender students consistent with their gender identity.

What Does This Mean for Your District?

Although not binding in the Seventh Circuit, which encompasses Wisconsin, the Fourth Circuit’s decision is instructive as to how Wisconsin school districts should address restroom, locker room, and shower concerns under Title IX. Additionally, the DOE has been aggressive in its efforts to ensure that transgender students can use bathrooms in public schools that correspond with their gender identities. In November 2015, the DOE Office of Civil Rights (“OCR”) issued a letter of findings to a Chicago-area school district demanding that the school district give unfettered locker room access to a transgender student for the facilities of the gender in which the student identified. The OCR gave the school district only 30 days to resolve the matter or risk forfeiting Title IX funding. The school district reached a settlement with OCR prior to having its federal funding rescinded.

School districts should begin the process (if they have not done so already) of developing policies to set the parameters and processes the district will follow when a transgender student seeks guidance and clarity. A district should further ensure that its non-discrimination policy is comprehensive in scope as to all protected classes of students. District policies should address how the district will ascertain the student’s gender identity; what proof, if any, a district will require; the manner in which a student should be addressed and allowed to change his/her name; student dress codes; student records; physical education class; school-sponsored and WIAA-sanctioned sports; and of course, restroom, locker room, and shower facilities.

If your district has a prior policy in place regarding transgender students and gender identity, your district should consider revising the policy to ensure it does not run afoul of Title IX. Ultimately, school districts should be prepared to respond to a request from a student seeking direction as to school processes and procedures. Now is the time to prepare for the inevitable and ensure the district has laid the framework to quickly and fairly respond.

Article By Christine V. Hamiel of von Briesen & Roper, S.C.

©2016 von Briesen & Roper, s.c

U.S. Department of Education Issues New Guidance on Incentive Compensation Regulations

On Friday, November 27, 2015, the U.S. Department of Education (the “Department”) will publish guidance in the Federal Register regarding its October 29, 2010 changes to the incentive compensation regulations at 34 C.F.R. § 668.14(b)(22) that took legal effect July 1, 2011. Those revised regulations removed a “safe harbor” that had previously permitted certain graduation-based or completion-based compensation, and further indicated that the Department interpreted its revised regulations to ban such forms of compensation to persons covered by the Higher Education Act’s incentive compensation prohibition.

In light of the federal court decision and subsequent order in APSCU v. Duncan, 70 F. Supp. 3d 446 (D.D.C. 2014), the Department states that it has now reconsidered its interpretation of the statutory prohibition and (subject to the caveats described below) that it does not interpret its July 1, 2011 regulations to proscribe compensation for admissions and recruiting personnel that is based upon students’ graduation from, or completion of, educational programs. Correspondingly, the Department also announced that it will not view references in its regulations to enrollment activities that may occur “through completion” by a student of an educational program as prohibiting graduation-based or completion-based compensation to admissions and recruiting personnel.

Importantly, the Department’s notice explicitly reserves its right to take enforcement action against institutions if compensation labeled as graduation-based or completion-based compensation is merely “a guise for enrollment-based compensation,” which remains prohibited. In assessing the legality of any compensation structure, the Department says it “will focus on the substance of the structure rather than on the label given the structure by an institution.” Thus, the Department further states that while compensation based on students’ graduation from, or completion of, educational programs is not per se prohibited, institutions are still prohibited from providing compensation that is based directly or indirectly, in any part, upon success in securing enrollments (as such activities are broadly defined in the Department’s regulations) even if one or more other permissible factors are also considered.

In this same notice, the Department also responds to the federal court’s order with respect to potential impacts of the regulations, as revised effective July 1, 2011, on the recruitment and enrollment of minority students. The Department acknowledges that its regulations could negatively affect outreach and enrollment generally, as well as student outreach that is specifically targeted at promoting diversity, which could result in fewer minority students recruited and enrolled. However, it states, neither the Higher Education Act nor any information presented by commenters to the regulations when proposed provide a basis for treating a recruitment program directed at minority students differently than an institution’s general or other specific recruitment programs.

A full copy of the Department’s Federal Register guidance is available here.

Article By John R. Przypyszny & Jonathan D. Tarnow of Drinker Biddle & Reath LLP

©2015 Drinker Biddle & Reath LLP. All Rights Reserved