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 Elizabeth Abdnour Law, along with several national nonprofit organizations and attorneys, signed onto an open letter issued by Laura L. Dunn of the L.L. Dunn Law Firm addressed to the U.S. Department of Education with several federal lawmakers and the White House’s Gender Policy Council copied demanding that the Biden administration improve Title IX enforcement.
This open letter starts: “We are a group of Title IX attorneys and advocates from across the country deeply concerned about issues arising around Title IX enforcement by the U.S. Department of Education’s Office for Civil Rights (OCR). These issues arise at a time when students are experiencing unusually high rates of sexual assault and dating violence, schools have used the COVID-19 pandemic as an additional excuse to worsen already inequitable athletics programs while there are increasing issues around equity for name/use/likeness, pregnant students need increasing support in this post-Roe-era, and when private enforcement of Title IX is being weakened after 50 years of holding educational institutions accountable for sex-based discrimination.” Over 35 groups have signed onto this letter. The letter also notes that post-Cummings, several district courts across the country have ruled to prevent Title IX plaintiffs from obtaining emotional distress damages. The group notes that this will “curtail contingency-based civil rights representation for Title IX cases in the United States, significantly reducing available legal services for survivors, especially low-income survivors. OCR’s effective enforcement of Title IX is more important than ever.” The letter calls on Congress to double OCR’s budget and for OCR to hire more qualified civil rights attorneys. In support of the letter, the mother of a Texas-based high school survivor shared their family’s experience filing Title IX Complaint No. 06-21-1668 against Grapevine-Colleyville Independent School District (GCISD) back in September 2021, only to have OCR delay opening an investigation for seven months in April 2022. “It’s been upsetting for our daughter to be at that school every day. Every step through the Title IX process (including now the OCR process), we have encountered pushback and delays. Multiple times, the school did not adhere to the Title IX guidelines, and each time, that caused us more pain. We picked our house so our kids could attend GCISD, but our entire family has become disenchanted with the district.” Supporters are encouraged to call their Congress members to demand that they hold OCR to better enforcement of Title IX at a time when it is under attack. FOR COMMENT: Laura L. Dunn, 202-302-4679.
Earlier this month, Liz and Wayne State University Law School Professor Nancy Chi Cantalupo sent the below letter to the U.S. Senate Committee on the Judiciary opposing the nomination of attorney Michael Delaney to the U.S. Circuit Court of Appeals for the First Circuit. Attorney Delaney has a history of engaging in oppressive litigation tactics against survivors and we believe he is not an appropriate selection for this role.
 Photo by Mihai Surdu on Unsplash Earlier today, the U.S. Department of Education released its much-anticipated Final Rule under Title IX. The document is 2033 pages long, so I haven't gotten anywhere near through it, but they have released several summaries: here, here, and here.
Important points on my first read through: Hearings
Three categories of violations
Responsible employees
Investigative reports/communication with parties: parties get at least ten days to review and respond to investigative reports (many schools are currently only allowing a five day or less review period) Appeals: both parties must have an opportunity to appeal (also big as this was not previously required - it was just if there was an appeal allowed, both parties had to have the opportunity to appeal) Informal resolution: not allowed in cases where an employee engaged in sexual harassment against a student Confidentiality: parties' written consent is required before their medical or psychological records can be released or used at a hearing Standard of proof: either "preponderance of the evidence" or "clear and convincing evidence" can be used at the school's discretion That's a brief overview of some of the major changes I see in my initial review. Stay tuned as there will likely be a lot more discussion and news on this topic as people have a chance to review the full document. ***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you***  Photo by Feliphe Schiarolli on Unsplash Today, Michigan Governor Gretchen Whitmer issued Executive Order (EO) 2020-35, which suspends in-person K-12 instruction for the remainder of 2019-2020 school year. This EO will impact every K-12 student and their families across the state, but it will have a particular impact on students who receive special education services.
The Basics of the Executive Order Here are some of the most important points for all K-12 students in Michigan:
How the Executive Order Applies to Students Receiving Special Education Services There has already been COVID-19 related guidance issued by the U.S. Department of Education and the CDC, which I outlined in a prior blog post. This Executive Order provides further information and direction to Michigan schools. EO 2020-35's guidance in this area is pretty vague. Basically, it tells schools that they need to comply with the U.S. Department of Education guidance, and that they need to: "...strive in good faith and to the extent practicable, based upon existing resources, technology, training, and curriculum, as well as the circumstances presented by any state of emergency or state of disaster, to provide equal access to alternative modes of instruction to students with disabilities..." There's a lot of wiggle room in those adjectives and qualifiers. The Executive Order does require schools to consider compensatory services for students on an individualized basis, but this is something they would have already had to do under IDEA guidance. The EO does not specify that those compensatory services must happen as an Extended School Year (ESY) service, but again, schools that comply with the IDEA will be making that assessment individually for every student and presumably, that's going to be something most special education students are going to need. In terms of IEP and 504 plan meetings, schools are again given a lot of discretion. MDE has five days from the date of the order to come up with some type of a plan, and one of the options available to them is to request a waiver from the U.S. Department of Education to allow them to: "Deliver instruction to all pupils, including students with disabilities, without having to reconvene or amend individualized education plans (“IEPs”) or Section 504 plans." There are other options, such as convening IEP meetings by video or teleconference, etc. Essentially, the order tells MDE that they need to figure this out somehow, and tells them to ask the U.S. Department of Education for further guidance. This is not very helpful for so many students with special needs who have already gone weeks without any services at all. Mental Health Services Interestingly, much of the publicity and reporting around EO 2020-35 states that schools will be continuing to provide mental health services to students. However, the only actual language in the order about mental health services is this: "A Plan must... [p]rovide mental health supports to pupils affected by a state of emergency or state of disaster prompted by COVID-19." There is no mention anywhere in the order of mental health services that students may need aside from those directly related to the current pandemic. We will continue to monitor this situation and will provide relevant updates when appropriate. Please do not hesitate to reach out to our office if we can assist you in this confusing time. ***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you***  Guidance has been issued by both the U.S. Department of Education and the CDC regarding how schools should be operating during this time. One important thing to note is that it is very likely that schools will be closed longer than the current 2-4 weeks that have been implemented in many states. Per the CDC guidance, "Available modeling data indicate that early, short to medium closures do not impact the epi curve of COVID-19 or available health care measures (e.g., hospitalizations). There may be some impact of much longer closures (8 weeks, 20 weeks) further into community spread..."
Special education services This is an uncertain time for all students, but even more so for children who receive special education services and who may be impacted not only intellectually but also behaviorally, emotionally, and/or psychologically. Assuming a school is providing educational services in some format, they need to be taking into account and accommodating the needs of students who are in IEPs or 504 plans. Per the USED guidance: "If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE." However, according to USED guidance, schools should still be considering whether to provide services to students with special education needs even if they are not providing educational services to other students: "Question A-3: What services must an LEA provide if a public school for children with disabilities is selectively closed due to the possibility of severe complications from a COVID-19 outbreak? Answer: If a public school for children with disabilities is closed solely because the children are at high risk of severe illness and death, the LEA must determine whether each dismissed child could benefit from online or virtual instruction, instructional telephone calls, and other curriculum based instructional activities, to the extent available. In so doing, school personnel should follow appropriate health guidelines to assess and address the risk of transmission in the provision of such services. The Department understands there may be exceptional circumstances that could affect how a particular service is provided. If a child does not receive services during a closure, a child’s IEP team (or appropriate personnel under Section 504) must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost." Further, as the guidance makes clear, compensatory education must be considered for students with special education needs once school reconvenes. IEP team meetings In terms of IEP team meetings scheduled during the school closure, different districts are handling this differently. Some districts are moving forward with meetings via phone or videoconference. Some are rescheduling. There is certainly a strong argument to be made to move forward with meetings electronically. However, parents will want to consider what is best for their child and themselves - practically, virtual IEP meetings can be very difficult and confusing. However, if a parent wishes to move forward with an IEP meeting during the school closure, a school should try to accommodate them. From the USED guidance: "SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504." This should include keeping IEP meetings up to date and on schedule. ***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you*** Since I spoke at Friday's MSU Board of Trustees meeting on behalf of a client whose Title IX investigation had gone on for 544 days, I have been receiving a number of questions about MSU's timelines. MSU's own Policy on Relationship Violence and Sexual Misconduct provides that investigations without a hearing should be completed within 90 days and that investigations with a hearing should be completed within 120 days in Appendix G.
MSU also has a document called RVSM Policy Hearing Procedures. Although I have requested that they also post this document online, as it provides clarity for parties in terms of how they handle Title IX hearings, they have not done so. They only provide it to parties via email if their case goes to a hearing. Therefore, I have chosen to host it online so it is publicly accessible. The document is extremely helpful as it also provides hearing timelines: p. 4: "The hearing will be scheduled within 20 days of the pre-hearing conference." p. 13: "The Resolution Officer will issue the decision within 20 calendar days of the conclusion of the hearing." I understand that MSU has stated to at least one reporter that they do not have set timelines for their Title IX investigations. As these policies outline, that is not accurate. Unless there is "good cause" for delay (which is broadly defined), a case involving a hearing should take no more than 120 days total, with that total including 20 days from the date of the prehearing conference to the date of the hearing, and another 20 days from the hearing to a decision from the hearing officer. ***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you*** The number one question I get asked by other attorneys and people I am talking with at conferences and out in the community is how to file administrative complaints with the U.S. Department of Education. I am a big fan of administrative complaints as they are much less time consuming, costly, and stressful than litigation, and can still lead to good results. Plus, you can do them on your own - you do not need an attorney to represent you (although it can definitely help, depending on the complexity of your situation and whether you feel up to going through the process on your own).
For Title IX related concerns, there are two primary complaint processes available via the U.S. Department of Education:
OCR complaints The U.S. Department of Education's Office for Civil Rights is responsible for investigating complaints of discrimination on the basis of several protected classes, including sex (as well as race, national origin, color, disability, and age) which occur in educational institutions that receive federal funding. Don't be fooled by a school's assertion that it does not accept federal funds - many private schools may think that Title IX does not apply to them, when in fact they accept funds to subsidize, for example, a school breakfast or lunch program. When in doubt, it won't hurt to file a complaint and let OCR sort out whether they have jurisdiction. OCR outlines the complaint process here. They offer both an electronic complaint form and a form that you can fill out, print, and mail, fax, or scan and email to them. I strongly recommend not using the electronic complaint form as the system will not save or send you a copy of your complaint. Information about how OCR considers and investigates complaints can be found in their Case Processing Manual. It is important to note that you must file an OCR complaint within 180 days of the incident you are filing the complaint about, or be able to prove that you are eligible for a waiver of the timeline (which can be difficult to obtain). OCR might contact you for an interview if they need more information from you. They will then send you a letter notifying you as to whether or not they will be opening a formal investigation into your complaint. If they don't, they will give you information in the denial letter advising you how you can appeal the decision. You then have 60 days to appeal. Clery Act complaints The Clery Act (full name: Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) was enacted in 1990 and was intended to promote safety and awareness of campus crime statistics at college and university campuses. Per Wikipedia, "The Clery Act requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses. Compliance is monitored by the United States Department of Education, which can impose civil penalties, up to $54,789 per violation, against institutions for each infraction and can suspend institutions from participating in federal student financial aid programs." The amount that an institution can be fined per violation changes every year, and it looks like Wikipedia's information is a little outdated, as the Clery Center is citing the current fine per violation at $57,317. EDIT: thank you to S. Daniel Carter at Safety Advisors for Educational Campuses, LLC for letting me know that the fine has again increased in 2020 to $58,328 per violation. The Clery Act might sound like it is just a bunch of jargon, but it is an excellent tool for ensuring campuses are compliant with Title IX. Why? In 2015, the Clery Act was amended via the Violence Against Women Reauthorization Act of 2013 (VAWA) to include language that placed specific requirements on schools with regard to how they handle and investigate Title IX violations: 34 CFR § 668.46 - Institutional security policies and crime statistics. (k) Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking. As required by paragraph (b)(11)(vi) of this section, an institution must include in its annual security report a clear statement of policy that addresses the procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking, as defined in paragraph (a) of this section, and that - (1) (i) Describes each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; how to file a disciplinary complaint; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking; (ii) Describes the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking; (iii) Lists all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceeding for an allegation of dating violence, domestic violence, sexual assault, or stalking; and (iv) Describes the range of protective measures that the institution may offer to the victim following an allegation of dating violence, domestic violence, sexual assault, or stalking; (2) Provides that the proceedings will - (i) Include a prompt, fair, and impartial process from the initial investigation to the final result; (ii) Be conducted by officials who, at a minimum, receive annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability; (iii) Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice; (iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; and (v) Require simultaneous notification, in writing, to both the accuser and the accused, of - (A) The result of any institutional disciplinary proceeding that arises from an allegation of dating violence, domestic violence, sexual assault, or stalking; (B) The institution's procedures for the accused and the victim to appeal the result of the institutional disciplinary proceeding, if such procedures are available; (C) Any change to the result; and (D) When such results become final. (3) For the purposes of this paragraph (k) - (i) A prompt, fair, and impartial proceeding includes a proceeding that is - (A) Completed within reasonably prompt timeframes designated by an institution's policy, including a process that allows for the extension of timeframes for good cause with written notice to the accuser and the accused of the delay and the reason for the delay; (B) Conducted in a manner that - (1) Is consistent with the institution's policies and transparent to the accuser and accused; (2) Includes timely notice of meetings at which the accuser or accused, or both, may be present; and (3) Provides timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings; and (C) Conducted by officials who do not have a conflict of interest or bias for or against the accuser or the accused. (ii) Advisor means any individual who provides the accuser or accused support, guidance, or advice. (iii) Proceeding means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, factfinding investigations, formal or informal meetings, and hearings. Proceeding does not include communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim. (iv) Result means any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution. The result must include any sanctions imposed by the institution. Notwithstanding section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly referred to as the Family Educational Rights and Privacy Act (FERPA), the result must also include the rationale for the result and the sanctions. As of the date I am writing this post, I am not aware of any website or online complaint form for filing Clery complaints. I went down a rabbit hole of phone numbers about a year ago and ended up speaking to a very helpful Clery office employee who filled me in on the procedure. It's pretty straightforward:
That's it! What happens next is a bit murky. I think your case will likely get assigned to an investigator, and what they do next, I am not sure. I've filed several Clery complaints now and have not gotten any further in the process than getting confirmation that a couple of them were assigned to an investigator. I would love to hear from you if you have filed a complaint and it has made it further than that! Important points to note:
I hope this has been helpful for you! Please feel free to reach out to me if you have any questions and I would be happy to help you if I can. ***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you*** |
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