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

Articles Posted in Student Rights & Title IX

us-capitol-building-g54e7f07d2_1920Federal legislators have introduced a bill to correct absurdities in anti-discrimination law that ensure institutions are rarely held liable for egregious acts of discrimination on their campuses. As things currently stand, a school district cannot be held liable for an on-campus rape of a student even if the student had previously been harassed by the assailant and told her teacher about the harassment, but the teacher failed to report it to the right administrator at the school. Even where students can bring legal claims against their schools for the school’s failure to properly address sexual harassment, they may well walk away from such a lawsuit empty handed because plaintiffs cannot recover punitive damages and may not be able to recover emotional distress damages in civil rights lawsuits in the education context. Imagine this: a college knows that it employs a professor who has assaulted countless students over many years. The professor sexually assaults another student on campus. Despite suffering extreme mental health consequences from the assault, the student manages to stay in school and graduate on time. If the student sues the school, a court could decide that even though the school has violated the student’s rights under Title IX, the student is not entitled to any damages for the harm the school has caused. CONTINUE READING ›

This is a follow up to a previous two-part series: you can read Part 1 here and Part 2 here pexels-nataliya-vaitkevich-7173013-scaled

 On October 24, 2022, An Act Prohibiting Discrimination Based on Natural Hair and Protective Hairstyles, also known as the Massachusetts CROWN Act, went into effect, but is significantly changed from the proposed legislation we have previously discussed on this blog. The CROWN Act expands the statutory definition of “race” that applies to all laws addressing racial discrimination to include “traits historically associated with race, including but not limited to, hair texture, hair type, hair length and protective hairstyles.” In addition, the Act defines “protective hairstyle” to include “braids, locks, twists, Bantu knots, hair coverings and other formations.” The CROWN Act also prohibits schools (except for sectarian schools) from adopting any policy or code that “impairs or prohibits” hairstyles historically associated with race. CONTINUE READING ›

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Proposed Title IX Regulations Would Expand Protection for Pregnant Students 

Title IX is a federal civil rights statute that prohibits discrimination on the basis of sex in any education program that receives federal funding. This prohibition extends to discrimination based on pregnancy and related conditions, including termination of a pregnancy. As I have previously noted, there have been relatively few cases litigated by students alleging they have been discriminated against because of pregnancy, leaving the scope of Title IX’s protection of pregnant students somewhat undefined.  

The current regulations implementing Title IX state: “A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom . . .” The regulations further require schools to treat pregnancy, childbirth, termination of pregnancy, and recovery therefrom as a temporary disability, and to provide students protected leave for as long as is deemed medically necessary to address those conditions.  CONTINUE READING ›

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What Teachers and Other School Employees Need to Know About Title IX 

  While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “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.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.  

Title IX Protects Employees from Discrimination and Harassment 

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously.  CONTINUE READING ›

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Colleges and universities have traditionally valued free expression, experimentation, and open discourse as a core part of their missions. Students and faculty should be free to speak their minds and express themselves in order to provoke discussion and achieve greater understanding. But there are limits to the legal rights to free speech on campus. What those limits are depends on factors like whether a school is public or private, and what promises have been made in university handbooks or policies. 

A public university (including state colleges and universities as well as community colleges) is subject to the limitations of the First Amendment. Under the First Amendment, speech or expression is generally protected by the Constitution unless it falls into one of a limited number of categories of unprotected speech, such as threatening speech toward another (“true threats”) and aggressive or insulting speech delivered face-to-face that is likely to provoke violence (“fighting words”). A public college usually cannot punish a student for First Amendment-protected speech unless the student or their speech is disruptive to the educational environment; this is a constitutional right that can be vindicated under Section 1983, part of the Civil Rights Act. There are also limits on the ability of a university to punish a student for off-campus speech. Faculty are also entitled to First Amendment protections, but given that they are often speaking as teachers in their roles as university employees, the school has a greater ability to control what they say in their capacities as faculty. 

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pexels-cdc-3992949-scaledIn the last year or so, I have gotten many calls from families whose children have been harassed and discriminated against in school because of their race. Repeatedly, I am hearing that students of color, often in predominately white schools, are being called the n-word by their classmates and targeted for bullying and harassment. I am hearing that these schools are disproportionately disciplining those students of color, often for vague and subjective offenses. Even more concerning, some of these families have told me that when they have reported their children’s harassment to school officials, those officials have recognized that they have a problem with white students harassing and bullying students of color but have claimed not to know how to address or prevent the harassment. Harassment and discrimination against students of color violates both federal and state laws, and schools have an obligation to take steps to address it.

Federal Anti-Discrimination Laws

Title VI is a federal law that prohibits discrimination on the basis of race, color, or national origin in any education program that receives federal funding. This includes all public K-12 schools, private K-12 schools that participate in federal programs like the National School Lunch Program, and almost all colleges and universities. Under Title VI, schools have an obligation to address racial harassment that interferes with students’ ability to access their education.

Collegepexels-photo-532001s and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights.   CONTINUE READING ›

https://www.bostonlawyerblog.com/files/2022/06/Screen-Shot-2022-06-19-at-9.10.07-PM.pngUnder longstanding case law in Massachusetts and the First Circuit, a court must interpret a student handbook or other school policy consistent with the “reasonable expectations” of a student reading it. If the school fails to follow its established policies, the student may be able to hold it accountable through a suit for breach of contract. But what happens when the school’s policies contain inconsistent or ambiguous provisions? In Sonoiki v. Harvard University, the Court of Appeals for the First Circuit held that a student’s claims should be allowed to proceed where the student’s interpretation of the policies was reasonably supported in the policies’ text – even if that interpretation contradicted other parts of the policies. CONTINUE READING ›

School-Uniform-SkirtsThis week, the Fourth Circuit court of appeals, sitting en banc (meaning all of the judges of the court together), held that a charter school’s dress code that requires girls to wear skirts violates their constitutional right to equal protection. The Court also reasoned that the dress code likely violates their rights under Title IX to be free from gender-based discrimination at school. The opinion was a resounding victory for students’ civil rights and for women’s rights. CONTINUE READING ›

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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. Two years ago the U.S. Department of Education (DOE) issued 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 last year, 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.

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