The U.S. Court of Appeals for the Third Circuit held recently that Title IX of the Education Amendments of 1972 (“Title IX”)—which prohibits sex discrimination in the “education programs or activit[ies]” of entities receiving federal financial assistance—can apply to residency programs at hospitals. The ruling may profoundly impact how hospitals respond to complaints of sex discrimination (including sexual harassment) by resident physicians and necessitate that hospitals comply with federal Title IX regulations and guidance. The ruling also opens the door for residents who experience sex discrimination to sue under Title IX, thereby avoiding the complex administrative exhaustion process required to file a similar claim under Title VII of the Civil Rights Act of 1964, which generally governs sex discrimination in the workplace. Please visit our website to read the legal alert authored by Derek Teeter and Lorinda Holloway.
Under the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), colleges and universities have a general duty to provide reasonable accommodations to employees and students with a qualifying disability. Unlike in the K-12 setting where schools are required to affirmatively address a student’s potential need for accommodations, in higher education, the ADA and Section 504 generally require a student to self-identify his or her disability, request accommodations, and then participate in an interactive process with the institution to determine whether and to what extent accommodations will be provided. Continue Reading Retroactive Accommodations Under the ADA and Section 504 Are Not Required and May Create Liability for Colleges and Universities
On Thursday, the Department of Education announced the conclusion of its five year investigation of Pennsylvania State University’s compliance with the Clery Act, which stemmed from revelations about the Jerry Sandusky sexual assaults. The report details some 11 identified violations and announces monetary fines totaling $2.4 million. Prior to yesterday’s announcement, the largest Clery Act fine in history was assessed against Eastern Michigan University in the amount of $357,500 (although the university only paid $350,000). The Clery Act has been in place since its passage in 1990. However, the Department has consistently increased the requirements for reporting and, in recent years, has more aggressively imposed fines for non-compliance. Continue Reading The Department of Education Announces the Largest Clery fine in History—$2.4 million
On September 28, 2016, the United States District Court for the District of Rhode Island entered a lengthy order holding that Brown University breached a contract with student John Doe when it committed missteps in Doe’s disciplinary hearing stemming from allegations Doe engaged in sexual misconduct against a female student. The court vacated Doe’s dismissal from the university and ordered his record expunged, but it left open the potential for Brown to re-try Doe if it did so in conformity with the court’s rulings. Continue Reading Federal court holds retroactive application of new sexual misconduct “consent” definition improper
This is the last week to submit comments to the Department of Justice in response to the 123 questions it posed in its supplemental advance notice of proposed rulemaking (SANPRM) regarding the regulation of web accessibility under Title II of the Americans with Disabilities Act. As an update, the SANPRM was released in May 2016, after the DOJ previously elicited comments on this issue in 2010.
View the questions posed by DOJ and provide comments using the online link. Continue Reading Closing Comments: Time for comments to DOJ regarding the regulation of web accessibility under Title II of the Americans with Disabilities Act ends Friday
How should public colleges and universities respond to requests under public records laws for information related to sexual misconduct investigations under Title IX and VAWA? On one hand, institutions are called to share information by public records laws, a desire for transparency, a need to discourage misconduct, and the public’s right to information. On the other hand, the Family Education Rights and Privacy Act (FERPA), Title IX, VAWA, and the Department of Education’s guidance call for protecting sexual misconduct records in the important interests of protecting safety, privacy, fairness, and encouraging reporting.
All states have some form of public records laws, which generally operate like the federal Freedom of Information Act (FOIA), whereby public governmental entities – including public colleges and universities – must provide information in response to a proper request. Most public records laws have exemptions for certain categories of information, including exceptions for information that is prohibited from disclosure by another law—such as FERPA—or that would result in an invasion of personal privacy. Relying on these exemptions, public colleges and universities may assert that they are not required to provide information related to sexual misconduct investigations. However, not all states extend these exceptions. Recent litigation and legislation indicate that even private institution police records may be subject to public records disclosure requirements. Continue Reading At the intersection of Title IX/VAWA, FERPA, and public records requests
Today’s Dear Colleague Letter from the U.S. Department of Education urges colleges and universities to seriously consider “community and police relations, racial justice, and officer and public safety.”
In the letter, U.S. Secretary of Education John B. King, Jr. incorporates into Department guidance the Final Report of the President’s Task Force on 21st Century Policing, asking institutions of higher education adopt recommendations that apply to their campuses. Continue Reading 6 Pillars for Cops, Communities and Campuses
On August 29, 2016, the Gloucester County School Board filed its petition for a writ of certiorari in the Supreme Court of the United States, seeking reversal of a lower court decision requiring the school district to allow students to use restrooms consistent with their gender identity even if that identity is different from their anatomical sex at birth. The petitioners, however, frame the issue in much broader terms, attacking the manner in which the Department of Education (“ED”) announced the rules at issue. If the Supreme Court elects to decide this case, and also chooses to confront these broader issues relating to ED’s guidance practices, it could have far-reaching consequences for many recent enforcement priorities for ED. Continue Reading Supreme Court’s involvement in transgender-restroom issue could bring sweeping changes to many Department of Education regulatory matters
On August 21, 2016, the United States District Court for the Northern District of Texas entered a preliminary injunction barring federal agencies from enforcing recent guidelines that call for schools, colleges, and universities to allow students to use sex-segregated facilities consistent with their gender identity. The injunction applies nationwide and specifically prohibits the Department of Education (ED) from initiating, continuing, or concluding any Title IX investigation that is based upon an institution’s alleged violation of ED’s gender-identity guidelines. The decision rejects the agencies’ position that Title IX and Title VII’s prohibition on “sex” discrimination includes a ban on gender-identity discrimination. The decision also declares that the agencies likely violated the federal Administrative Procedures Act (APA) by issuing gender-identity guidance without engaging in a public notice and comment process. Continue Reading Federal Court Enters Preliminary Injunction Blocking Federal Agencies From Enforcing Gender-Identity Guidelines
Last week, the U.S. Department of Education published the 2016 edition of The Handbook for Campus Safety and Security Reporting, commonly referred to as the Clery Handbook. The update was necessitated by the 2015 amendments to the Clery Act by the Violence Against Women Act (VAWA) reauthorization. Continue Reading U.S. Department of Education publishes new Clery handbook