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

football_field_000013335426SmallSometimes common sense is not so common. By a Memorandum dated January 31, 2017, the General Counsel of the NLRB has taken the position that student athletes at private colleges and universities are employees within the meaning of the National Labor Relations Act, notwithstanding the Board’s issuance of its decision of Northwestern University in 2015 in which it declined to exercise jurisdiction after a representation petition was filed by a union seeking to represent the Northwestern University’s football players. Please visit Husch Blackwell’s Labor Relations Law Insider blog to read the full post.

The demand for high-quality academic, enrichment and athletic programs for minors continues to grow. In response, many colleges and universities are expanding the ways in which they serve minors and their communities, through fee-based programs, mentoring and volunteer opportunities and partnerships with K-12 schools.

Much of this growth has occurred quickly and organically. As a result, existing policies may focus on important basics such as liability releases, background checks and suspected child abuse and neglect reporting. But these policies may fall short and fail to address the more practical risks regularly facing program staff and may not take into consideration applicable federal and state laws and case law developments that can impact program operations. Continue Reading Enhancing your minors on campus policy: five practical risk areas to focus on in 2017

Closeup of Basketball on the Court FloorInstitutions of higher education face an ever-present risk of receiving and responding to formal complaints and investigations related to Title IX and NCAA gender equity filed with the U.S. Department of Education’s Office for Civil Rights (OCR). NCAA gender equity is a particularly high-risk area, in part, because complaints can be filed with the OCR by individuals who have nothing to do with the college or university or any of its athletic programs. As evidenced from recent NCAA gender equity Title IX investigations, intercollegiate athletics is a high-profile area that oftentimes grabs headlines. Continue Reading Mitigating possible (March) madness of NCAA gender equity Title IX investigations

soccer-balliStock_000017622127_LargeFor the past several years, there has been an increased focus on student-athletes and whether colleges and universities should be paying athletes for their participation in intercollegiate sports. So far, courts have been reluctant to require pay for student-athletes. For example, in the O’Bannon lawsuit, student athletes’ claims that the NCAA’s ban on student-athlete compensation above the cost of attendance was an unreasonable restraint on trade in violation of the Sherman Antitrust Act were largely rejected. Similarly, an attempt by student-athletes to unionize pursuant to the National Labor Relations Act was also rejected because the student-athletes were not employees within the jurisdiction of the NLRA. Continue Reading Court holds that student-athletes are not employees under FLSA

Closeup of Basketball on the Court FloorThe United States Court of Appeals for the 9th Circuit denied a rehearing en banc in the controversial O’Bannon v. NCAA case this past December. With the Bowl games recently ended and March Madness (and the deadline to petition the Supreme Court) quickly approaching, it seems like an appropriate time to revisit the state of the O’Bannon case. Continue Reading Slam Dunk? Revisiting the O’Bannon opinion after the 9th Circuit denies request for rehearing en banc

Softball FieldFor decades, Title IX enforcement focused on gender equity in athletics. But since the 2011 Dear Colleague Letter, colleges, universities, and the Department of Education have focused in on Title IX’s application to campus sexual harassment and sexual violence. Yet Title IX continues to require gender equity in your athletics programs. With an apparently rising tide of Title IX athletics enforcement, the question remains—are you giving gender equity in athletics the attention it deserves? Continue Reading We have gender equity in our athletics department—don’t we?

Ladies room and mens roomOn Nov. 2, the U.S. Department of Education’s Office for Civil Rights (“OCR”) found that a suburban Chicago school district violated Title IX by failing to allow a transgender female student to change and shower in the girls’ locker room without restrictions. In a 14-page letter addressed to the district, OCR determined that requiring a transgender student to use private changing and showering facilities was a violation of Title IX. Instead, said OCR, the student should be given unfettered access to girls’ locker room facilities. The district has called OCR’s findings “a serious overreach” and has indicated its intent to resist enforcement action. Continue Reading Illinois Impasse: OCR continues to promote aggressive interpretation of Title IX protections for transgender students, school district calls OCR’s position ‘a serious overreach’

American Football on FieldToday, a unanimous decision by the National Labor Relations Board (“NLRB”) determined Northwestern football players could not unionize.

The five-member Board emphasized the Northwestern case involved novel and unique circumstances. The Board has never before been asked to assert jurisdiction over college athletics of any kind. It determined that scholarship players do not fit within any analytical framework the Board has used previously in cases involving students or athletes. After finding that the Board has never before asserted jurisdiction over student scholarship athletes (or other similarly situated individuals), the Board declined to assert jurisdiction here. Continue Reading NLRB rules Northwestern football players cannot unionize