OCR Announces Resolution of Recent Title IX Investigation in Minneapolis

OCR Announces Resolution of Recent Title IX Investigation in Minneapolis

by | Sep 23, 2024 | General, School Management

While courts across the country issue injunctions and debate the politics and definitions surrounding the 2024 Title IX regulations, the U.S. Department of Education, Office for Civil Rights (“OCR”) continues to consider “classic” gender inequities in schools.

On August 8, 2024, the OCR announced a resolution of its Title IX investigation into the Minneapolis Public School District’s high school athletics programs. As part of the voluntary agreement, the district committed to:
• Conducting a full assessment of how the district can accommodate athletic interest and abilities to provide equal opportunities for female students;
• Develop a plan to increase participation opportunities for female students;
• Create a Stakeholder Committee to work collaboratively with the district to create new policies and procedures addressing interscholastic athletics programs;
• Assess and develop a plan with respect to the provision of locker rooms, practice, and competitive facilities at each high school in the district that equally and effectively accommodates the athletic interests and abilities of all students; and
• Training its Title IX coordinators, athletic directors, principals, and coaches on their responsibilities under Title IX.

The OCR’s investigation revealed a disparity between the female enrollment rate and their participation in interscholastic athletics. Despite this disparity, the district acknowledged that they had not completed a student athletic interest survey in over a decade, nor did they have any policies or criteria for the addition of sports or levels to their existing programs.

The investigation also revealed significant disparities between the existing athletic facilities, and student access to said facilities, between male and female students. For example, many of the softball fields used by the district were not up to regulation for high school fast pitch and they lacked permanent fencing around the field. The girls’ softball teams were also regularly displaced from competition because the district allowed a men’s adult softball league to use the facilities after 6 p.m. The OCR also raised concerns that a higher proportion of female athletes had maintenance and preparation responsibilities for their sports, such as setting up nets and fencing prior to practice or games, with some teams even being required to set up spectator seating for their home competitions.

Similar issues were prevalent when comparing locker rooms between male and female students. At least two of the high schools reported that the girls’ locker rooms lacked hot water. Others provided additional locker rooms specifically for male athletes, with no offsetting benefits for female participants, and many female athletes across the district reported that their locker rooms were locked throughout the school day while the boys’ locker rooms were regularly available.

What this means for your district:
Regardless of the status of the 2024 Regulations, Title IX continues to be in effect. Districts cannot ignore their basic obligation to prevent sex discrimination in educational programs and activities. In the context of athletics, this generally means districts must demonstrate that they provide opportunities that are substantially proportionate to their enrollment, or if a gender is currently underrepresented, that they can show program expansion that is responsive to addressing that underrepresentation. Districts should consider regular reviews or internal audits for equity among programs considering schedules, practice and competition facilities, utilities, expectations of participants, displacement of teams, involvement of students, etc. It is clear through this resolution that OCR values a proactive approach to equal opportunity in interscholastic athletics programs.

 

The Power of Punctuation: Debate Over Grammar Leads Ohio Supreme Court to Limit Executive Sessions for the Purchase of Property

The Power of Punctuation: Debate Over Grammar Leads Ohio Supreme Court to Limit Executive Sessions for the Purchase of Property

by | Aug 18, 2024 | Board Policy & Representation, General

Look Ahead Am. v. Stark Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-2691.

On July 18, 2024, the Ohio Supreme Court determined that the Stark County Board of Elections misused executive sessions to discuss and plan the purchase of new property, specifically voting equipment. A company filed a complaint based on the Board’s decision to enter executive sessions on four separate occasions to discuss and plan for the purchasing of new voting systems. Both lower courts upheld the Board’s decisions after concluding that executive sessions were permitted for any purchase of property, but the Ohio Supreme Court disagreed. Reversing the decision, the Court clarified that executive sessions are permitted to discuss the purchase of property only to consider information “which would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”

Ohio’s Open Meetings Act permits a public body to enter executive session for the following reasons:

To consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with R.C. 505.10, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

The courts agreed that the statute had a plain meaning, but they disagreed over what, exactly, that plain meaning was. According to the Supreme Court, the difference is based on punctuation and the rules of grammar. The lower courts both relied on the “rule of the last antecedent,” which applies a limiting clause or phrase to the noun or phrase that it immediately follows. Using that rule, the courts argued that the premature-disclosure clause only applied to the sale of unneeded, obsolete, or unfit-for-use property.

However, the statute’s use of commas modifies the rule of the last antecedent. Relying on several leading treatises on statutory interpretation, the Ohio Supreme Court argued that separating the antecedents and the qualifying phrase by a comma is evidence that the qualifier is supposed to apply to all antecedents. Under this interpretation, the premature-disclosure clause applies to every listed reason to start an executive session involving property, including the purchase of property, and not just the last reason as the lower courts suggested.

What this means for your district? This is yet another reminder that Districts must review and understand the public meeting exceptions rather than rely on memory and past practice. While Districts often recess into executive session to discuss property purchases, Districts cannot call executive sessions to discuss such purchases unless they can show that the premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

6th Circuit Temporarily Pauses Implementation of New Title IX Regulations

6th Circuit Temporarily Pauses Implementation of New Title IX Regulations

by | Jun 19, 2024 | General, Legislation

Tennessee v. Cardona, 2024 U.S. Dist. LEXIS 106559

A federal district court judge in Kentucky issued a preliminary injunction on June 17, 2024 against the Department of Education’s new 2024 Title IX regulations that are set to go into effect on August 1, 2024. The injunction issued by the Kentucky judge is limited to the six plaintiff-states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. There are multiple other lawsuits across the country with pending motions for preliminary injunctions that also may impact when the Department’s Title IX Final Rules will go into effect.

The Final Rules released by the Department in April include an expanded definition of “discrimination on the basis of sex” based on the U.S. Supreme Court’s ruling in Bostock v. Clayton Cty., 590 U.S. 644, 681–83 (2020), that seeks to prohibit discrimination on the basis of sexual orientation or gender identity in a Title VII case. The federal district court held that the new regulations will dramatically alter the purpose and meaning of Title IX, and issued a preliminary injunction to pause the implementation of the 2024 Title IX regulations until the case may proceed further for the following reasons:

  • The Department’s interpretation likely exceeds its statutory authority,
  • The Department’s actions were arbitrary and capricious,
  • The Department’s reading goes against the major questions doctrine,
  • The Clear statement rule under the Spending Clause weighs against the new Title IX regulations,
  • The Plaintiffs raised valid First Amendment free speech concerns, and
  • The Department’s reading likely violates parental rights.

According to the court, the original goal of Title IX was to ensure that women have an equal opportunity to aspire, achieve, and participate in society based on their individual talents and capacities, and that before the last decade, the words “sex” and “discrimination on the basis of sex” had universally been understood to refer to biological sex under the statute. The court disagreed with the Department’s reliance on Bostock. The majority in Bostock claimed the decision did not apply beyond Title VII to other federal laws that prohibit sex discrimination, and the dissent warned about how the ruling could be misapplied in the school context. 

Citing last week’s different decision in Texas, in which a federal district court in the 5th Circuit enjoined the Department’s 2021 guidance, the court reminded the Department that federal agencies “…lack the authority to rewrite clear statutory terms to suit its own sense of how the statute should operate.” Texas v. Cardona, 2024 U.S. Dist. LEXIS 103452, at 85.

For purposes of Title IX, the court found that the term “sex” unambiguously refers to biological sex, and that Congress did not implicitly delegate its authority to change or expand that meaning to the Department. Similarly, Title IX was enacted as an exercise of Congress’ power under the Spending Clause which requires the government to condition the receipt of federal funds “unambiguously” so that states may be cognizant of the consequences of their participation and exercise their choice knowingly. South Dakota v. Dole, 483 U.S. 203, 207 (1987). But the court found that the Final Rule’s language provides no indication that an institution’s receipt of federal funds is conditioned on any sort of mandate concerning gender identity.

Lastly, the court cautioned that the new Title IX regulations may infringe on the constitutional rights of students, staff, and parents. The court found that the Final Rules require districts to treat children consistent with their gender identities on school grounds, even if that conflicts with parental preferences.  The court cautions that the Department’s reading of Title IX may require districts to enter the “private realm of family life” that has been afforded both substantive and procedural protections.

What this means for your district

The preliminary injunction issued by the federal district judge in Kentucky within the 6thCircuit this week pauses the Title IX Final Rules implementation in the six states involved, including Ohio, but only temporarily. As the case progresses to a full hearing, the injunction may be lifted or a permanent injunction could be issued. There is also potential that one of the other pending lawsuits impacts how the Final Rules are implemented. We may not have a definitive answer on compliance with the new Title IX regulations until these cases make their way through the court system. In the meantime, districts should continue to prepare for the new rules, even if they are currently delayed, to ensure they are prepared to implement Title IX provisions if and when they go into effect. This decision does not reverse or modify the 6th Circuit precedent concerning Title IX and students within K-12 schools. Consult your legal counsel.

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

by | Jun 19, 2024 | General, Special Education

B.P.J. v. W. Va. State Bd. of Edn., 98 F.4th 542 (4th Cir. 2024).

On April 16, 2024, the 4th Circuit Court of Appeals issued a split decision holding that West Virginia’s Save Women’s Sports Act (the Act) violated Title IX as applied to the plaintiff. The 2022 state law prohibited transgender girls from competition in girls and women’s sports in K-12 and college athletics throughout the state. After the Act went into effect, B.P.J., a transgender girl, was no longer allowed to compete on the middle school cross-country team. She sued the State Board of Education and local public school district, alleging that the Act violated the Equal Protection Clause of the Fourteenth Amendment and violated Title IX.

Beginning with the Equal Protection claims, the court applied intermediate scrutiny to the Act after determining that it constituted sex-based discrimination. The State’s position was that the law was enacted for the purposes of “participant safety” and “competitive fairness” to justify the Act’s treatment of transgender girls. The court questioned how B.P.J.’s exclusion from the cross-country team was substantially related to either of those interests. The facts of the case were that B.P.J. played a non-contact sport, so the court failed to see a participant safety issue. Additionally, the majority reasoned that B.P.J.’s early transition and prolonged use of hormone therapy called into question whether she enjoyed a competitive advantage over her cisgender peers. Since the parties disputed whether those assigned male at birth enjoyed a competitive advantage over cisgender girls, the court ordered further proceedings to debate the issue.

The public school tried unsuccessfully to argue that it should not be held liable since it was complying with the state law, rather than district policy that violated Title IX. While true, a federal law such as Title IX supersedes the district’s obligations to the state. After quickly dismissing the district’s argument, the court warned that mere compliance with a state law is not a legitimate defense to a Title IX violation.

According to the court, the Act discriminated against and caused harm to B.P.J. in violation of Title IX. The Act prohibited only one category of students, transgender girls, from competing on teams with their corresponding gender. The majority further explained that the state should not expect B.P.J. to go against her social transition to play on the boys’ team, and that the Act risked exposing her to the same level of unfair treatment that West Virginia claimed it was trying to prevent for cisgender girls because of B.P.J’s hormone treatments. The court was careful to note that its holding was a limited ruling on the Act as applied to B.P.J., and that it was not holding that Title IX required every transgender girl to play on a girls’ team.

What this means for your district
It is important to note that this decision applies only to the 4th Circuit. The ruling is limited to its facts as applied to a specific student playing a specific sport, and is not a blanket requirement that all transgender girls be allowed to compete on girls’ sports teams under Title IX. However, Title IX is a federal law and must be followed regardless of jurisdiction. Several states, including Ohio, have adopted similar legislation to West Virginia’s Save Women’s Sports Act. Conflict between these laws and Title IX may force districts into a situation where state compliance risks exposing them Title IX liability.

Ohio Court Emphasizes Need for Flexibility in Administrator Contracts

Ohio Court Emphasizes Need for Flexibility in Administrator Contracts

by | Jun 19, 2024 | Labor and Employment

State ex rel. Ruble v. Bd. of Edn. of Switzerland of Ohio Local School Dist., 2024-Ohio-1542

The Switzerland of Ohio Local School District was sued by four administrators after their contracts were suspended by the Board of Education in July 2021. The Superintendent announced to the Board that he was recommending the suspensions due to the “reorganization and consolidation” of their administrative functions. After giving the administrators the required notice, the recommendation was adopted at the next board meeting listing the “financial condition of the school district” as a basis for the suspension of their contracts.

In a case argued by Ennis Britton’s own Michael Fischer, the Ohio 7th District Court of Appeals upheld the suspension of the administrators’ contracts on April 11, 2024 after determining the school board’s policy did not violate R.C. 3319.171. According to the court, Ohio’s administrative personnel suspension policy was meant to be construed broadly to give school boards the flexibility they need to adjust their administrative staff according to the needs of the school district.

In its decision, the court held that a district’s policy pursuant to R.C. 3319.171 needs to include the following:

  • One or more reasons that the board may consider for suspending any contract,
  • Procedures for determining the order of suspension of contracts, and
  • Provisions requiring a right of restoration for employees whose contracts of employment are suspended.

Additionally, school boards need to consider input from other administrators when developing its administrative personnel suspension policy.

However, the court noted that the statute does not require detailed lists of criteria for suspension, nor does it preclude the board from considering the overall needs and interests of the district when making staffing decisions. While the policy may not have been as detailed as the administrators argued it needed to be, the court noted that as long as the board’s policy meets the minimums established above as well as considering the administrators for other openings for which they may be properly qualified, the district is in compliance with the statute.

It is worth noting that the court suggested that the board’s policy, which was sourced from a third-party provider, may have been invalid for failing to consider the input from other administrators as required by R.C. 3319.171(C). But the court did not review this issue on appeal, since the argument never was properly raised by the administrators.

What does this mean for your district? Administrators do not have the same level of protection as teachers under Ohio law with regard to reductions in force. District policies still are required to meet certain statutory minimums, but R.C. 3319.171 is broadly construed to consider the best interests of the district and give boards of education the flexibility they need to adjust their administrative staff in response to changing circumstances.