Columns_111968469In an en banc decision issued yesterday, the United States Court of Appeals for Seventh Circuit held that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation.  See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017).  In doing so, it became the first court of appeals to reach this conclusion, disagreeing with contrary decisions from multiple other circuits.  While this issue could very well be taken up by the Supreme Court of the United States, any Supreme Court decision would likely not come before early 2018.  Absent expedited action by the Supreme Court or a stay of the ruling, this will remain the law in the Seventh Circuit for the foreseeable future.

Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]”  42 U.S.C. § 2000e-2(a)(1).  As the court acknowledged in the beginning of its opinion, virtually all courts of appeals shared the Seventh Circuit’s prior view that the term “sex” as used in Title VII “implies that it is unlawful to discriminate against women because they are women and against men because they are men,” and does not speak to discrimination based on sexual orientation.  Op. at 3-4. Continue Reading Seventh Circuit Holds That Title VII Prevents Sexual-Orientation Discrimination—Will More Courts Follow? And Is Title IX Next?

Gavel On Rainbow FlagAs we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision.  Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue.  The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question.

After the Trump Administration withdrew the guidance, the Solicitor General’s office sent a letter to the Supreme Court to inform it of the policy change.  The Court then ordered both parties in the case (the student and the school district) to submit letters expressing views on how the case should proceed.  Both the school district and the student urged the Court to retain the case, hear oral argument, and decide the merits.  Continue Reading Supreme Court Remands Case Involving Facilities Use by Transgender Students Without Decision

Choosing your wayIn a joint letter issued February 22, 2017, the Departments of Education (ED) and Justice (DOJ) withdrew prior Title IX guidance from the Obama administration that required schools receiving federal funding to allow students to use sex-segregated facilities according to their gender identity, as opposed to their anatomical birth sex.

Obama-Era Transgender Guidance WithdrawnThe Obama administration provided the (now-revoked) guidance through two letters. First, on January 7, 2015, ED’s Office for Civil Rights (OCR) issued an opinion letter in response to a lawyer’s inquiry about a specific Virginia school district policy directing that students must use facilities corresponding to their anatomical birth sex. The letter stated that Title IX protected against discrimination based on sex, including gender identity, and that students must be allowed to use sex-segregated facilities according to their gender identity. On May 13, 2016, OCR and DOJ issued a Dear Colleague Letter more broadly confirming the departments’ view that Title IX required schools to allow access to sex-segregated facilities according to each student’s gender identity.

Continue Reading Trump Administration Withdraws Guidance on Use of Facilities by Transgender Students

students166671612Under 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

Diversity_122512350On Friday, February 10, 2017, the Trump Administration informed the Fifth Circuit that the United States will no longer challenge the injunction against enforcement of the joint Department of Justice and Department of Education guidance  on the treatment of transgender students that was issued last year. We expect further developments in the coming weeks and months, but for now: Continue Reading Gender Identity Shift: Federal Government No Longer Challenging Injunction on Transgender Student Guidance

Pregnant Business WomanHusch Blackwell’s Hayley Hanson and Katie Jo Luningham have co-authored a NACUANOTE titled The Pregnant and Parenting Student. The article discusses the state of regulatory guidance, Department of Education investigations, and litigation related to student pregnancy and parenting issues on campus. Because institutions must be prepared to address pregnancy-related issues that implicate an array of services, this NACUANOTE provides various suggestions and approaches available to colleges and universities when working with pregnant and parenting students.

Husch Blackwell will continue to monitor developments in pregnancy-related guidance, regulations and caselaw as Department of Education leadership and student lawsuits evolve. For more information about how to handle institution-specific questions about pregnant or parenting students on your campus, please contact a member of our Higher Education group.

Late last week, the Supreme CouToilet signsrt of the United States granted the petition for a writ of certiorari in Gloucester County School Board v. G.G. on two of the three questions presented for review.  Thus, later this term (prior to the end of June) the Supreme Court will likely resolve a growing split among courts of appeals as to whether schools receiving federal funding are required—pursuant to Department of Education (“ED”) guidance interpreting Title IX—to permit students to use restroom facilities according to their gender identity, irrespective of their anatomical gender.  Adding to the confusion on this issue, a federal district court in Texas issued a nationwide injunction prohibiting ED from enforcing its guidance on this issue. Continue Reading Supreme Court to Review Department of Education’s Requirement on Restrooms for Transgender Students

This is the last week to submit comments to the Department of Justice in response to the 123 questions it posed in its supplementalComputer Use_iStock_000005238604_Large 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

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