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

dataLocks148650499Colleges and universities frequently hire third-party vendors to provide services that involve student data—cloud storage, online education delivery, and online grade books to name a few. Although the arrangements are common, they can run afoul of the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99) (FERPA) and other data privacy best practices. To learn more about what this means for colleges and universities, please visit Sean Tassi’s recent blog post on Husch Blackwell’s Byte Back blog.

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

school suppliesThe Department of Education and Department of Justice issued a Dear Colleague Letter on Transgender Students (“DCL”) on Friday, May 13, 2016, providing what it terms “significant guidance” on the appropriate treatment of transgender students on campus. As noted in the letter, “this guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.” Thus, despite stating that the letter is merely informative, in reality the Departments appear to be telling readers that if they do not follow the guidance, they may be found in violation of the law. Putting aside the constitutional concerns this type of directive raises, institutions will want to carefully review the letter and understand what they are dealing with when it comes to the Departments’ perspective on transgender issues. Continue Reading DOE and DOJ issue Dear Colleague Letter on transgender students and Title IX

refereeiStock_000000132325_MediumAs the NFL playoffs approach, we’re reminded of just how crucial are instant replays – recordings of what happened on the field, to confirm (or second-guess) the referee’s call. Imagine how controversial instant replays would be if the recordings were made not by an impartial source, but instead by the opposing team, on a biased, selective basis? That’s exactly how many employers feel about employees surreptitiously recording what happens in the workplace. Emerging technologies such as wearables, smartphones, and Google Glass make it easier than ever for employees to record workplace interactions without anyone else knowing. Captured conversations could include exchanges with supervisors, coworkers, or customers; disciplinary meetings; workplace investigation interviews; or even employment terminations.

Employers certainly can regulate employee workplace conduct. But employers that decide to ban employee recordings in the workplace should do so carefully, respecting employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), whistleblower statutes, and nondiscrimination laws. Continue Reading Instant Replay: banning employee recordings in the workplace

iPhone 4 AppsShould you post pictures of students on your college website or social media page?

With many colleges and universities conducting high school visits, where groups of students are assembled in a classroom or auditorium to learn about the visiting school, it can be a great marketing tool for the university to post pictures afterward on favorite social media sites. But the question that often arises is: can we post pictures of these events with the high school students? The answer is that although there is no specific prohibition on the practice of posting pictures of students online, you should consider a few things before doing so. Continue Reading Point, click, shoot… post?

Unmanned Aerial Vehicle with a Digital Camera

The last several years have seen a substantial increase in the use of unmanned aircraft systems (UAS) at American colleges and universities. UAS have a wide variety of official campus applications, such as scientific research, public safety, and marketing photography and video. But Federal Aviation Administration (FAA) regulations limit the use of UAS for commercial (including certain academic and research) purposes. And while many students fly UAS recreationally, the rights of recreational fliers may conflict with the privacy and safety interests of other members of the campus community as well as academic property-use and privacy policy guidance. Given the potential legal ramifications of violating FAA regulations and the need to balance competing interests on campus regarding UAS use, it is important that institutions understand the current regulatory environment, and craft and implement policies to ensure UAS are used in an appropriate manner. Continue Reading UAS policies becoming essential for colleges and universities

Key in the safe deposit boxThe House Committee on Education and the Workforce recently announced the introduction of a bill to amend FERPA. The Student Privacy Protection Act (H.R. 3157) has bipartisan support and is intended to modernize privacy protections, improve communication, and “hold schools, states and independent entities accountable for their use of student information.” Continue Reading Changes are coming to FERPA, including the potential for fines

Green Check Mark SymbolWith the end of the spring school term fast approaching and summer right around the corner, colleges and universities have an opportunity to turn attention to creating, revising, updating and preparing policies, procedures and disclosures for the fall school term. As opposed to changing policies and procedures mid-school year, having compliant policies and procedures ready to go from the start of the school term allows consistent application throughout the school year. Below is a non-exhaustive checklist of some key items colleges and universities should ensure are up-to-date for fall 2015. Continue Reading Policies and procedures to unpack over vacation