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

Articles Posted in Student Rights & Title IX

US-DOE-sealToday the U.S. Department of Education released its long-awaited regulations implementing Title IX. The regulations require a complete overhaul of how schools currently handle allegations of sexual harassment and sexual assault, and dramatically limit schools’ responsibilities to address those claims.

By way of background, in 2011 the Obama administration issued a Dear Colleague Letter that provided guidance to schools (K-12 and post-secondary) on how to address sexual harassment. That letter was not binding law, but because the Department of Education could withhold federal funding from any school that did not comply with it, schools revamped their processes for addressing complaints of sexual harassment and sexual assault to meet the standards set out in the letter. After Donald Trump took office, the Department of Education rescinded that guidance, and in 2018 issued proposed regulations that were published for public comment. Today, the final version of those regulations, and commentary addressing the public comments, was released.

What follows is a brief overview of some of the major provisions of the new regulations, which take effect August 14, 2020.

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IMG_1541In Doe v. Trustees of Boston College, the U.S. Court of Appeals for the First Circuit refused to extend due process protections to private Massachusetts colleges, despite its recent holding in Haidak v. UMass-Amherst that some form of cross-examination or equivalent questioning is required at public universities. It therefore reversed a District Court decision that would have required some form of real-time questioning on issue of credibility. In so doing, the First Circuit deferred to state courts and the state legislature to define the contours of the “basic fairness” requirements for private schools under state law (having ducked the issue in a previous decision in a different Boston College case). This narrow holding underscores the need for further development of state law governing student discipline in light of significant developments in law and practice around the country since the Massachusetts appellate courts last weighed in more than 10 years ago. 

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If the volume of calls to our office is any indication, the Boston Public School (BPS) system is stepping up enforcement of its residency policies. It is not surprising that with national attention on the “Varsity Blues” scandal (involving prosecutions of celebrities who fraudulently secured their children’s acceptance to college), and increasing criticism of the lack of diversity at Boston’s elite exam schools, BPS would be looking to crack down on students falsely claiming to live in Boston in order to attend Boston schools. But parents and students have a right to understand and contests BPS’s findings in these investigations: Fifteen years ago a Massachusetts court made clear to BPS that before it could declare a student a non-resident and remove him or her from the BPS system, it had to provide the student’s family basic due process protections. Unfortunately it appears that BPS continues to ignore this court decision and families’ rights in pursuing residency enforcement actions.

What are the BPS residency requirements?Boston-Latin

Massachusetts General Laws chapter 76, § 5 states “Every person shall have a right to attend the public schools of the town where he actually resides.” The law seems clear enough, but of course the devil is in the details: what does it mean to reside in Boston? This is a question our courts have answered: in most cases, the minor student “resides” where the parent(s) who has (or have) physical custody resides. The BPS Superintendent’s Office has issued a policy further explaining what it views this statute to require, and how BPS will determine residency. Following Massachusetts court cases that have defined residency, the policy defines “residence” as “the place that is the center of [the student’s and/or parent’s] domestic, social, and civic life.” The focus of “residency” is therefore not only whether the student has a physical address in Boston, though of course that is relevant, but on where the center of the student’s life is. This focus indicates that where questions about residency arise, BPS must conduct a holistic evaluation that takes into account non-traditional family and education arrangements.

Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higherbeer-pong 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.

What is Title IX, and What Does It Mean for my School?

Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX.

In practice, what that means for your school is that it is obligated to address complaints of sexual harassment, dating violence, and sexual assault if it learns of them. Almost every school has set up a Title IX office solely to address these kinds of complaints. The job of this office is to resolve those complaints – which often but not always entails a disciplinary process against the accused student.

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massachusetts-69816_1920Last week the U.S. Court of Appeals for the First Circuit released its second decision in the last few years addressing campus sexual misconduct disciplinary proceedings. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found for the University, concluding, as my colleague recently discussed, that the procedures it applied in Mr. Haidak’s case were sufficient to pass constitutional muster.

In writing about these campus disciplinary proceedings, the court glossed over the factual realities of these cases and made some concerning statements that—if schools were to adopt them as policy—would undermine students’ rights.  

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On August 6, 2019, the U.S. Court of Appeals for the First Circuit released a decision that ca1strengthens the due process requirements applicable to discipline at state universities, but does not go as far as other courts such as the Sixth Circuit, which has forcefully affirmed a due process right to cross-examination on issues of credibility. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found the University of Massachusetts-Amherst (UMass) procedures adequate as they were applied in the specific case before it, but adopted a requirement for some form of real-time cross-examination sufficient to address the key facts and issues in a student’s case. The court also emphasized the need for a state college to provide a student with due process for even an interim suspension – and only in the case of a real emergency can that process occur after the suspension. 

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writing-1149962_1920In our last post, we assessed the provisions and potential impacts of two of the campus sexual misconduct bills that will be considered by the Massachusetts Legislature in an upcoming hearing on April 9. In this post we are focusing on several of the other bills that will be up for debate, including one that would require a school to label a student’s transcript as soon as he or she is accused of certain criminal acts and another that would mandate sexual harassment training for all Massachusetts college and university students, faculty, and staff.

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government-buildings-516081_1920There are six bills addressing campus sexual assault that will be discussed at a public hearing of the Massachusetts Joint Committee on Education next week. Two years ago, the Massachusetts legislature held hearings on a collection of bills that addressed different aspects of the issue of campus sexual assault. Although the Senate later passed a bill dictating how schools should handle sexual assault allegations, that bill never made it to the Governor.

The various bills have been edited and re-filed and will be heard at a public hearing on April 9. Both in testimony to the Joint Committee on Higher Education and on this blog we laid out concerns with the previous versions of these bills, having to do with lack of transparency, notice, and ensuring that complaining and responding students had access to the same resources.

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On November 16, 2018, the U.S. Department of Education released draft regulations that would significantly reform Title IX requirements for schools in dealing with sexual harassment and sexual assault on campus. Naomi Shatz has tweetstormed initial summaries and analysis of key features of the draft regulations. There is a lot to unpack in the regulations, and we will undoubtedly have more to write about them in the coming weeks. They also may change before they become final; this publication is the start of a 60-day public comment period, after which the Department of Education must reconsider and respond to input from the public before the regulations become effective. However, once the regulations are finalized, they will have the force of law and will be difficult to change, so it is very important to focus on what is in the draft now.

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college-building-2-1In recent weeks, potential new draft regulations from the Department of Education’s Office for Civil Rights (OCR) have garnered considerable media attention, despite not being yet released. Last week the full text of those draft regulations was leaked to the public. Among several other notable changes to current practice at most colleges and universities (detailed in my colleague Naomi Shatz’s tweets after we first got our hands on the draft regulations), the draft would require a significant increase in respondents’ rights to cross-examine their accusers and other witnesses. Meanwhile, in the past months, the Sixth Circuit Court of Appeals has focused in a string of decisions on whether respondents in Title IX cases at public schools have a due process right to confront and cross-examine their accusers, and recently issued a new decision, in Doe v. University of Michigan  making the strongest statement we have seen yet from any court of appeals in favor of cross-examination. The regulations and the Sixth Circuit’s decision are both plainly intended to increase the rights of accused students, yet they offer schools very conflicting guidance about how to do so. In addition, the regulations could have significantly unintended consequences in practice.

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