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.

Update on New Guidance Regarding Joint Purchasing Programs Under Revised Code Section 9.48

Update on New Guidance Regarding Joint Purchasing Programs Under Revised Code Section 9.48

by | Jun 19, 2024 | Construction & Real Estate, General

For those of you familiar with the web of statutes and Ohio Attorney General opinions regarding competitive bidding and cooperative purchasing for construction and other services, the Ohio Attorney General (“OAG”) recently added a new section to the web.

For those of you that are not so familiar, some brief context: Boards of education are required by R.C. Section 3313.46 to competitively bid when they determine to build, repair, enlarge, improve, or demolish any school building and the cost of the work is more than fifty thousand dollars ($50,000). However, R.C. Section 9.48 permits school boards to use cooperative purchasing contracts to acquire equipment, materials, supplies, or services. The OAG released an opinion in 2019 finding that school boards may not use R.C. Section 9.48 to obtain construction services, because the General Assembly did not specify so in the statute.

On March 18, 2024, the OAG issued Opinion No. 2024-003, to clarify the scope of services that may be obtained under R.C. 9.48. The opinion revisits the definition of “services” within R.C. 9.48 and clarifies that the interpretation of the term “services” is to include installation, maintenance, repairs, and similar activities, particularly when associated with equipment, materials, and supplies procured under the program. This clarification aims to differentiate between the terms “construction services” and “related services.” While the opinion explores some possible definitions of “construction” and “construction services,” the opinion ultimately concludes that determining whether a service falls under impermissible “construction services” is a factual inquiry beyond the OAG’s purview, emphasizing the need for legal counsel’s guidance.

To put it briefly, repair services that do not constitute construction work are able to be procured through RC 9.48. Equipment purchases that have only incidental installation requirements, are also likely permissible items for RC 9.48 cooperative purchasing. Maintenance services are also safe because maintenance is not a service that is required to be bid. Careful consideration should be given to whether a particular project is a repair or just maintenance.

Keep in mind that there are cooperative options available to school districts that do include construction and construction services. If you are considering a project and are exploring your cooperative procurement options, do not hesitate to contact an Ennis Britton attorney to discuss your available options!

Ohio Requires Schools to Adopt New Cell Phone Use Policies

Ohio Requires Schools to Adopt New Cell Phone Use Policies

by | May 23, 2024 | General, Legislation, Student Education and Discipline

On May 15, 2024, Governor DeWine signed House Bill 250 into law. The law mandates that all Ohio school districts adopt a policy governing students’ use of cell phones during school hours. The law is set to take effect on January 1, 2025. The law requires the Ohio Department of Education and Workforce (“DEW”) to publish a model policy that complies with the new legislation within sixty days of the legislation’s effective date.

Meanwhile, districts have until July 1, 2025, to adopt a policy that satisfies the following:

  • Emphasizes the limited use of cell phones during school hours.
  • Reduces phone-related distractions in the classroom setting.
  • If included in a student’s Individualized Education Program (“IEP”), or determined to be appropriate by the school board, permits a student to use phones for learning or to monitor health concerns.

Although the law does not require the banning of cell phones during school hours, it states that any school that chooses to do so will be viewed as complying with the new law.

Reason for Legislation? Governor DeWine and the state legislature are attempting to limit distractions in the classroom to “reestablish the opportunity for students across Ohio to immerse themselves in their classwork.” Increased cell phone usage is not only seen as a distraction to student learning but has been linked to damaging student mental health. The Passage of the law seems to follow an already growing movement across the state to cut back on cell phones in schools. Many districts have already adopted cell phone restrictions that appear to comply with the state’s new policy.

What This Means for Your District? While the core mission of the bill is to minimize screen time during school hours, Governor DeWine insists that districts will have the freedom to “create policies that work best in their environments and for their students.” The DEW is expected to release its model policy before March of next year. Any district that adopts a policy after January 1 of next year must do so at a public meeting of the school board and make the policy publicly available. This includes posting the policy prominently on the district’s website if they have one.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Read it Here! Science of Reading Professional Development Requirements Published

Read it Here! Science of Reading Professional Development Requirements Published

by | Apr 24, 2024 | Board Policy & Representation, General, Student Education and Discipline

 

 

 In late March, the Ohio Department of Education and Workforce published guidance for districts on how to fulfill the staff training requirement for the new literacy improvement provision of HB 33.  The guidance may be accessed here. That provision mandates that teachers and administrators must complete professional development in the science of reading by June 30, 2025. This new guidance lays out how the training requirements can be met by staff through identifying the training topics, vendors, resources, and details for these select professional development opportunities. The training is available in online modules in the Department’s Learning Management System in addition to face-to face meetings with trained facilitators.

The guidance notes that teachers and administrators who completed similar training, notably the professional development that supports the requirements of Ohio’s Dyslexia Support laws, may also satisfy the HB 33 requirements. A training comparison chart is included in the guidance document.

Finally, the guidance provides some instruction concerning the stipend due to teachers for completing this professional development. Stipend amounts vary from $1,200 for all K-5 teachers, 6-12 English language arts teachers, and all intervention specialists, English learner teachers, reading specialists, or instructional coaches for grades K-12, to $400 for 6-12 teachers of subjects other than ELA.  Districts must first pay teachers the applicable stipend and then seek reimbursement from the Department.   HB 33 highlights that teachers shall complete the course “at a time that minimizes disruption to normal instructional hours. “

What this Means for Schools: Now that the guidance and course identification information is available, districts can commence planning to these required professional development opportunities.  Districts are cautioned to review their collective bargaining agreements and consult legal counsel to determine the appropriateness of using pre-arranged professional development days for this coursework in light of the stipend requirement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Career Tech Corner: CTC Construction Program Builds Interest in Construction Delivery Methods

Career Tech Corner: CTC Construction Program Builds Interest in Construction Delivery Methods

by | Apr 24, 2024 | Board Policy & Representation, Construction & Real Estate, General

The last Biennium Budget Bill included grants for the expansion of career technical opportunities. Last fall, the Governor’s office announced that of the 59 applicants for the Career Technical Construction Program, 35 were awarded almost $200 million. This funding will be used to build and expand classrooms and training centers at JVSDs, compacts, and comprehensives across Ohio in various programs like engineering, manufacturing, health sciences, construction, and more.

There are various construction delivery methods available to recipients of these funds who choose to use the for construction projects. The main three delivery methods utilized by school districts are summarized below.

1. Design-Bid-Build (“DBB”). This is the more traditional method of construction delivery. With this method, the owner hires an architect to develop the plans, specifications and estimates of cost. This requires a qualifications-based selection process. The architect then assists the owner with bidding the various bid packages for the contract either through a single general contract or multiple contractors. This method is typically used for smaller projects such as minor renovations, pre-fabricated buildings, athletic facility upgrades, etc., but can be utilized for larger projects as well. The Owner would contract with the architect and each prime contractor coming onto the project.

2. Design-Build (“DB”). This is often confused with DBB even though it is an entirely different delivery method. Through this method, the architect is responsible for both the design and the construction of the project. The owner has a single contract with the design-build firm. The design-build firm is selected according to a two-stage selection process that first considers qualifications then technical and price components for the delivery of the project. Prior to selecting a design-build firm, the Owner must hire a criteria architect to develop the design criteria for the project. The criteria architect is hired using a qualifications-based selection process in the same manner as hiring an architect or engineer for professional design services. Design-build is considered a faster delivery method, however, this is because there is not a lot of owner input on the actual design itself, only the criteria for the design, i.e., what components and functions the finished build must have. This method is good for projects such as an additional wing of traditional classrooms that do not have unique design components.

3. Construction Manager at-Risk (“CMR”). This is currently the most popular delivery method for new school construction, major renovations and additions projects, and projects where the owner wants to have a lot of input on the design and functional components of the build. With CMR, the owner hires an architect for the necessary professional design services. The Owner goes through a two-stage selection process first considering qualifications, then technical and pricing proposals. The Owner combines the scores across both stages and awards a contract to the winner. The CMR serves as both the construction manager and the builder. The Owner has a single contract with the CMR and the CMR is responsible for bringing in all materials, labor, and equipment to the Project.

Districts undertaking large or complex projects may consider hiring an owner’s representative. An owner’s representative is a professional agent who advises the owner and supervises the project to make sure it stays on track. While it is true that the architect and contractor will have contractual obligations to the owner, they are not “in their corner” so to speak and may end up in an adversarial position if a dispute about the work arises. The owner’s rep in turn is the agent of the owner and their focus is on asserting the owner’s interests on the project. The Ennis Britton Consulting Group (“EBCG”) provides owner’s representative services. Barb and Steve Shergalis of EBCG are former architects very experienced in public school construction projects.

Each of these delivery methods has their own unique requirements for properly soliciting the contracts to get the Project off the ground. It is therefore important to make sure that you are taking all the proper steps to ensure you have a valid contract in place that does not expose the Board of Education to unnecessary liability risks. Please do not hesitate to contact a member of the Ennis Britton Construction Practice Group with questions about the right delivery method for your project.