Legal Issues in Higher Education

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   Journal of Collective Bargaining in the Academy   V-*+# 0  National Center Proceedings 2017   A'!*# 63Ma!& 2017 Legal Issues in Higher Education Kristin Klein Wheaton Goldberg Segalia F-**-4 &' a a''-a* 4- a:&8://&###.#'.#/!aPa -$ &#C-**#!'# Ba%a''% C-++- , a &#H'%&# E!a'- C-++- ' P-!##'% Ma#'a* ' -%& - 5- $- $## a -# a!!# 5 # K##. I &a ## a!!## $- '!*'- ' J-a* -$ C-**#!'# Ba%a''%' &# A!a#+5 5 a a&-'# #'- -$ # K##. F- +-# '$-+a'-, *#a# !-a!a@#'.#. R#!-++## C'a'- K*#' W&#a-, K'' (2017) L#%a* I# ' H'%&# E!a'-,  Journal of Collective Bargaining in the Academy : V-*. 0 , A'!*# 63. Aa'*a*# a:&8://&###.#'.#/!a/-*0/'12/63  N EW  Y ORK  | I LLINOIS  | F LORIDA  | M  ARYLAND  | M ISSOURI  | N ORTH C  AROLINA  | P ENNSYLVANIA  | N EW  J ERSEY | C ONNECTICUT  | U NITED K INGDOM Legal Issues in Higher Education National Center for the Study of Collective Bargaining in Higher Educationand the Professions44th Annual National ConferenceKristin Klein Wheaton, Esq. March 28, 2017 Title IX and Transgender Individuals: Bathroom Guidance On May 13, 2016, the U.S. Department of Justice and U.S. Department of Education jointly released guidance (“May 13, 2016 Guidance” 1 ) that said Title IXof the Education Amendments of 1972 applied to discrimination based on gender identity, not just gender. Transgender students utilized the guidance to assurethat they were protected from discrimination and had access to bathrooms andresidence halls that are consistent with their gender identities.On February 23, 2017, the Trump administration withdrew the May 13, 2016Guidance. The Trump administration’s position stated that this issue is a stateissue rather than a federal issue.Meanwhile, a case from the 4 th Circuit titled,  Gloucester Cnty. Sch. Bd. v. G.G. ,has made its way to the U.S. Supreme Court. In that case, a transgender studentnamed Gavin Grimm (“Grimm”) at Gloucester High School in Virginia wasdiagnosed with gender dysphoria, and was subsequently allowed to use theboy’s restroom, which aligned with his gender identity. However, the Gloucester County School Board (“Board”) then passed a policy mandating that transgender students only be allowed to access single-stall unisex restrooms or restroomsthat correspond with their biological sex.Grimm sued the Board and alleged that its policy violated Title IX as well as theEqual Protection Clause of the Fourteenth Amendment. The district court grantedthe Board’s motion to dismiss the Title IX claim and denied Grimm’s motion for apreliminary injunction. A divided panel of the Fourth Circuit ruled that atransgender student could maintain a claim under Title IX of the Education Amendments of 1972 (Title IX). The case has now reached the U.S. SupremeCourt, which will hear oral argument on March 28, 2017. As referenced above, the Trump administration did withdraw the May 13, 2016Guidance. However the Trump administration has yet to disturb the April 29,2014 guidelines (April 29, 2014 Guidance” 2 ) that address sexual violence andother forms of sex discrimination. Included in the nearly 50 page Q&A documentis a passage that states, “Title IX protects all students at recipient institutionsfrom sex discrimination, including sexual violence.” “Any student can experience 1 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf  2 https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf © 2017 Goldberg Segalla  Attorney Advertising.For informational purposes only. 1Klein Wheaton: Legal Issues in Higher EducationPublished by The Keep, 2017  LEGAL ISSUES IN HIGHER EDUCATION 2 sexual violence: from elementary professional school students; male and femalestudents; straight, gay, lesbian, bisexual, and transgender students; part-timeand full-time students; students with and without disabilities; and students of different races and national srcins”.The April 29, 2014 Guidance also states, “Title IX’s sex discrimination prohibitionextends to claims of discrimination based on gender identity or failure to conformto stereotypical notions of masculinity of femininity and OCR accepts suchcomplaints for investigation.” “Similarly, the actual or perceived sexual orientationor gender identity of the parties does not change a school’s obligations. Indeed,lesbian, gay, bisexual, and transgender youth report high rates of sexualharassment and sexual violence.” 3 “A school should investigate and resolveallegations of sexual violence regarding LGBT students using the sameprocedures and standards that it uses in all complaints involving sexualviolence.” 4 With the May 13, 2016 Guidance now revoked, but the April 29, 2014 Guidancestill in effect, educational institutions are left to wonder what to do. One case inthe U.S. District Court for the Western District of Pennsylvania was recentlydecided since the revocation of the May 13, 2016 Guidance. In  Evancho et al., v.Pine-Richland School District et al. , case number 2:16-cv-0153, threetransgender students sued the Pine-Richland School District after a school boardresolution was passed that requires students to use bathroom facilities thatcorrespond to their “biological sex” or unisex private facilities. The studentssought, and were granted, a preliminary injunction on February 27, 2017,because the students showed a reasonable likelihood of success on the merits of an Equal Protection Clause claim. Notably, the court stated there was not alikelihood of success on the student’s Title IX discrimination claim given theuncertainly of federal policy and the pending U.S. Supreme Court case, Gloucester Cnty. Sch. Bd. v. G.G. While the future is uncertain with respect to these issues at the federal level,several states, including New York, have adopted provisions prohibitingdiscrimination against transgender individuals. Accordingly, it is important tocheck applicable local and state laws that may be applicable to your institution. Sexual Assault In Higher Education In 2011, the Office for Civil Rights in the U.S. Department of Education issued aDear Colleague letter (“DCL” 5 ) that urged institutions to better investigate andadjudicate cases of campus sexual assault. The letter provided clarification for how the department interprets Title IX of the Education Amendments of 1972. 3 Id. at section B-2. 4 Id. 5 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf  2  Journal of Collective Bargaining in the Academy, Vol. 0, Iss. 12 [2017], Art. 63 http://thekeep.eiu.edu/jcba/vol0/iss12/63  LEGAL ISSUES IN HIGHER EDUCATION 3 Specifically, the DCL: ã  Provides guidance on the unique concerns that arise in sexual violencecases, such as school’s independent responsibility under Title IX toinvestigate (apart from any separate criminal investigation by local police)and address sexual violence. ã  Provides guidance and examples about key Title IX requirements and howthey relate to sexual violence, such as the requirements to publish a policyagainst sex discrimination, designate a Title IX coordinator, and adopt andpublish grievance procedures. ã  Discusses proactive efforts schools can take to prevent sexual violence. ã  Discusses the interplay between Title IX, the Family Education Rights andPrivacy Act, and the Jeanne Clery Disclosure of Campus Security andCampus Crime Statistics Act (“Clery Act”) as it related to a complainant’sright to know the outcome of his or her complaint, including relevantsanctions imposed on the perpetrator. ã  Provides examples of remedies and enforcement strategies that schools andOCR may use to respond to sexual violence.The DCL supplements OCR’s Revised Sexual Harassment Guidance:Harassment of Students by School Employees, Other Students, or Third Parties,issued in 2001 (“2001 Guidance” 6 ). Notably, in its opening section, the April 29,2014 Guidance states, “[t]he DCL and the 2001 Guidance  remain in full force and we recommend reading these Questions and Answers in conjunction withthese documents.” (emphasis added).The 2011 and 2014 guidance collectively clarify that sexual violence, includingrape, sexual assault, sexual battery, and sexual coercion, is a form of sexualharassment that violates Title IX. Specifically, the guidance notes that a singleinstance of sexual violence may be sufficiently severe such that it creates ahostile environment that limits or denies a student’s ability to participate in or benefit from the education program. Any school that knows or should haveknown about possible harassment must “take immediate action to eliminate theharassment, prevent its recurrence, and address its effect. Additionally, in April 2014, the White House Task Force to Protect Students fromSexual Assault issued its first report “Not Alone”, and created a website toaddress campus sexual violence, located athttps://www.justice.gov/ovw/protecting-students-sexual-assault. As of the date of this paper (March 1, 2017), the 2011 and 2014 Guidance hasnot been revoked by the Trump administration. There have been severallawsuits instituted against colleges and universities by individuals accused of sexual assault under the guidelines and disciplined as a result. In addition, a bill(Safe Transfer Act) was proposed in December 2016 to the United States Houseof Representatives that would require colleges to indicate on student transcripts if  6 http://www.titleix.us/wp-content/uploads/2014/04/OCR-Revised-Sexual-Harassment-Guidance-2001.pdf  3Klein Wheaton: Legal Issues in Higher EducationPublished by The Keep, 2017
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