News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Student Rights & Title IX

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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 ›

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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 ›

yale-university-1604159_1920Freedom 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.)

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Gordon-CollegeWe 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.

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boston-2444581_1920In 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.

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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 aubrey-rose-odom-s9wRk6E83nc-unsplash-scaledregulations, 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.

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US-DOE-seal-300x300The 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.

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jonathan-chng-3R4vPrSB1c4-unsplash-scaledLast 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.

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US-DOE-seal-300x300In a previous post, I discussed a confusing provision of the new Title IX regulations that prohibits decision-makers from considering statements by parties or witnesses who do not undergo cross-examination at the live hearing. One question that this provision has raised is what happens when the respondent’s statements are the harassment at issue? For example, in a quid pro quo harassment case if a professor e-mails a student saying “if you sleep with me I will give you an A,” and then refuses to undergo cross-examination, do the regulations prohibit the decision-maker from considering the e-mail as evidence? In a hostile environment case, if a student sends sexually harassing text messages to another student, will those messages be excluded if the respondent does not submit to cross-examination?

The preamble to the new regulations says the word “statements” has its ordinary meaning (whatever that may be), but does not include evidence that “do [sic] not constitute a person’s intent to make factual assertions.” The regulations themselves provide no explanation of what statements count as “statements” under the regulation, and the preamble does not explain how to determine what evidence constitutes an intent to make factual assertions. This portion of the preamble seems to be a botched attempt to create something analogous to the evidentiary rules on hearsay, which define hearsay at out of court statements admitted “for the truth of the matter asserted.” Under the federal and state rules of evidence, if a party introduces an out of court statement for a reason other than to prove the truth of what is asserted in the statement, it is not hearsay, and is therefore admissible. The rule of evidence focuses on how the party trying to admit the statement wants to use it; the Title IX regulation focuses on the intent of the speaker of the statement when the statement was made.

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US-DOE-sealOne of the most confusing and controversial provisions of the new Title IX regulations is a provision that bars the decision-maker from considering any statement by a party or witness who does not submit to cross-examination at the hearing:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”

This provision imposes a blanket ban on considering statements made outside the hearing if the party or witness does not submit to cross-examination. In real court proceedings, there is an entire body of evidence law that addresses when and how out of court statements can be relied on at trial. For example, in a criminal case the prosecution can often rely on “fresh complaint” evidence (statements a victim of sexual assault made shortly after the assault), whether or not the victim testifies at trial. If parties refuse to testify at trial, statements they previously made that are counter to their own interests can be admitted—which would allow a court to consider an alleged sexual assailant’s admissions or inculpatory statements, and also allow a court to consider any statements a complainant or victim made that suggest any part of his/her account was fabricated or inaccurate. In real court hearings, out-of-court statements are also frequently used not to prove the truth of the statements themselves, but to call into question the credibility of a party or witness. The Title IX regulation indicates that statements made by a party cannot be used even for this purpose if the party does not submit to cross-examination.
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