August is upon us and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. One year ago the U.S. Department of Education (DOE) issued new regulations related to sexual misconduct on campus (for a summary see our blog posts here); and here in Massachusetts a new law went into effect this month, changing how schools are required to handle sexual misconduct cases. It is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure that may arise from sexual behavior. CONTINUE READING ›
Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus. CONTINUE READING ›
This is Part 2 in a series. You can read Part 1 here.
I previously detailed how existing anti-discrimination law is insufficient to protect employees and students who wear their hair in natural or protective styles from discrimination. A national campaign called the CROWN Act, has built an impressive coalition of organizations in support of legislation to remedy this problem. In the last two years, eleven states and a handful of cities and counties have passed this type of legislation. Massachusetts Representative Ayanna Pressley introduced a federal CROWN Act in Congress in December of 2019. CONTINUE READING ›
This is Part 1 in a series. You can read Part 2 here.
Last week Jon Oliver took a deep dive into Black hair, and the barriers people with natural and protective hairstyles face in the workplace, in schools, and elsewhere. His segment highlighted stories of a woman who was not hired because she wore her hair in locs, twins here in Massachusetts who received detention and were banned from prom because they wore their hair in braids, and an Ivy-league alumnus who sent a vitriolic, racist letter to his college because a football player for the college wore his hair in locs. Over the weekend news broke that a high school softball player in Durham was forced to cut her beads out of her hair in the middle of a game if she wanted to continue playing. While there has been a growing movement in the last two years for states, cities, and towns to pass versions of the Creating a Respectful and Open World for Natural Hair (CROWN) Act, thus far Massachusetts has not passed any legislation on this issue. Because our current laws do not adequately protect against such discrimination, a legislative fix is necessary. CONTINUE READING ›
Freedom of speech on campus—the freedom to express opinions, including when they are unpopular—has long been a key principle of American academic institutions. Thomas Jefferson wrote to prospective members of the faculty of the University of Thomas Jefferson that the institution would be “based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” Yet this principle is sometimes more honored in the breach than in the observance. The University of Thomas Jefferson shortly thereafter rescinded a professor’s appointment because he was a Unitarian. (This article is a very interesting account of the early history of academic freedom in America.)
We are going through an era of extraordinary political division. On college campuses as in broader society, both students and faculty are voicing widely differing views and beliefs. Colleges also have increasingly robust disciplinary rules applying to conduct including harassment, bullying, and discrimination that may be applied to conduct that takes the form of speech. At public institutions, the First Amendment protects students from discipline based upon their speech—but not in all circumstances. (Private institutions are another matter that I will address in a separate post.) This post reviews the basic law about free speech on campus and discusses a 2020 First Circuit decision that encapsulates the complexity of determining when speech is sufficiently disruptive of the school’s mission or of the rights of other members of the school community to warrant discipline.
In a late-night session on the last night of the 191st General Court (our legislative session), the Massachusetts Legislature passed S. 2979, “An Act Relative to Sexual Violence on College Campuses.” This bill was the latest version of a bill that has been introduced, and had previously failed to pass, in every session since 2014.
We have previously written about prior versions of this bill (our blog posts can be found here, here, and here). My colleagues and I have also submitted testimony to the Legislature in both 2017 and 2019 about campus sexual assault and the need for transparent, fair processes for students. While the bill addresses a number of topics, including climate surveys, sexual misconduct training for students and employees, coordination with local law enforcement, and the information schools must post on their websites, I will focus here on what the law will require schools to do when they receive a complaint of sexual misconduct. If Governor Baker signs the bill, its changes will take effect on August 1, 2021.
As schools revamp their Title IX policies by August 14 to comply with the recently-enacted federal regulations, information about how those policies might look is starting to come to light. In recent weeks, a number of schools have made clear that—as my colleague predicted when the regulations came out—while they will create policies to address conduct that falls under the federal regulations, they will also have policies that address sexual misconduct issues that fall outside of what the federal government regulates. Boston University recently offered some insight as to how it will approach sexual misconduct cases come fall. According to BU’s Title IX coordinator, Kim Randall, “[c]omplaints that fall under the new Title IX regulations, as noted above, will be investigated using the procedures required by the new regulations, which are very different from our existing procedures. Those complaints that do not fall under Title IX will be investigated using procedures similar to those currently in place.” Having two separate policies that address sexual misconduct is likely to raise a host of issues that schools need to plan for before imposing those policies on students and faculty. Looking at how cases may be handled under BU’s proposed policies illustrates the issues schools will face if they choose to have two different sexual misconduct procedures.
The Department of Education’s new Title IX regulations, which have now been officially published, run to over 550 pages of fine print in the Federal Register or over 2000 pages in regular font. Few people have the time or knowledge necessary to identify the most important parts of the regulations, let alone read the entire document from start to finish. Without context about the rule-making process, it can be difficult to understand why the regulations are structured the way they are. But understandable or not, the regulations have significant ramifications for students and educational institutions subject to Title IX’s prohibition on sex discrimination in education. This post breaks down the different parts of the regulations, which parts have legal effect, and why.
Laws passed by Congress often leave details up to the agencies designated to enforce them – sometimes very important details. Title IX itself is relatively brief, providing that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” with a limited set of exceptions. It is left primarily to the Department of Education to interpret and effectuate this non-discrimination mandate.
Last month, the U.S. Department of Education (DOE) issued a letter to the Connecticut Interscholastic Athletic Conference (CIAC) and a number of Connecticut schools notifying them that their policy allowing transgender student athletes to play sports on the team that corresponds with their gender violates Title IX, and giving them until June 4 to come into compliance with the law. The DOE’s interpretation of how Title IX applies to transgender students is an about-face from previous interpretations it has issued, and from the interpretation many courts have given to Title IX.
As I described last year, an advocacy organization purporting to focus on religious liberty issues (the Alliance Defending Freedom (ADF)) filed a complaint with the DOE arguing that cisgender female athletes in Connecticut were being discriminated against under Title IX—the federal statute that prohibits sex-based discrimination in schools—because transgender female athletes were permitted to play on girls’ sports teams. The ADF has filed numerous such complaints and lawsuits arguing that when schools refuse to discriminate against transgender students, they are discriminating against cisgender students.