The Law & Education

There is no doubt that politics affects education. With a new administration likely to take office in January, what are the changes we can expect to see in Title IX space under Joe Biden's presidency? In this episode, Jody Shipper, Title IX consultant and Managing Director at Grand River Solutions, Scott Schneider, litigator and lawyer at Husch Blackwell, and Joe Storch, in-house counsel at SUNY, share their unique perspectives on the implications of the election on Title IX. We kick off with a recap of the developments that have happened in the last 90 days under the Trump administration, including the controversial diversity executive order. As we know, this has been a busy summer in the Title IX space. While everyone has been working furiously to get their ducks in a row, many of us can't help but wonder if the hard work will go to waste should the regulations fall away. Jody, Scott and Joe all share their view on this issue. The conversation also covers the circuit courts' handling of Title IX issues and the lack of uniformity as well as the single investigator model. We wrap up with a look at 2021, where we hear how we can prepare for the upcoming year. It was a great conversation, so be sure to tune in today!

Key Points From This Episode:

• Implications of the developments in the Title IX space over the past 90 days under the Trump administration.
• Why Jody recommends taking the Clery Act training with Joe.
• What Scott predicts will happen under the Biden administration with the diversity executive order.
• The work that Barack Obama did around the Office for Civil Rights with respect to Title IX.
• Why Jody believes that even if the regulations fall away, the work put in is not for nothing.
• Some of the important takeaways from working on the regulations over the summer.
• Joe's regrets over the time spent focusing on compliance rather than issues like student mental health this summer.
• What stands out to Scott about the regulations and important conversations that have resulted.
• Why Joe finds it interesting that Doe v. Baum has not been adopted uniformly across the circuit courts.
• Positive changes in the evidence review processes that have come with the regulations.
• The inconsistent application of the constitutional due process at private schools across different issues.
• Jody's argument for – in specific cases only – the single investigator model.
• The important distinction some courts have made between reliability and credibility cases.
• Why Joe feels the outrage at the single investigator model is somewhat unfounded.
• Scott's take on what might happen in the compliance and enforcement space under Joe Biden.
• Finals words from the guests on preparing for 2021.

Tweetables:

"From a compliance standpoint, it wouldn't surprise me if there was more activity around Clery enforcement than probably any other administration." — @EdLawDude [0:09:04]

"Reviewing your policies shouldn't be something that only happens when there's a change in the presidential administration or new regulatory framework. It needs to happen more often." — @JodyShipper [0:12:10]

"We've all talked about how sad we've become that this issue that we all care about and have devoted our careers to has become part of a political atmosphere. Red Title IX; Blue Title IX. I think we all yearn for a day when it returns to doing the right thing under civil rights law and the law and regulations." — @JosephStorchNY [0:15:15]

"Everyone should be doing in January what they were doing in October, November, and December, in other words, right now, and the same thing for February, March, and April, unless and until there is something new that comes out that changes the approach." — @JodyShipper [0:37:48]

"I am a little worried that sometimes our Title IX coordinators are focusing way too much attention on some small details and maybe missing bigger narratives." — @EdLawDude [0:40:39]

"Our best response will never be as good as a prevented violation." — @JosephStorchNY [0:42:52]

Links Mentioned in Today's Episode:

Joe Storch

Joe Storch on Twitter

SUNY

Jody Shipper

Grand River Solutions

Scott Schneider

Scott Schneider on Twitter

Husch Blackwell

John Graff on Twitter

Higher Ground Podcast

The Handbook for Campus Safety and Security

Office for Civil Rights

Doe v. Baum

Courtney Bullard on Twitter

ICS Lawyer

SUNY

This is the second part of our series with John Graff, taken from his Higher Ground Podcast, where he discusses the U.S. Department of Education's new Clery Act compliance guidance. In part one we heard about the context for the announcement — the developments leading up to the Department's drastic reversal of its longstanding guidance. Looking at that context in today's episode, John analyzes the new guidance, discusses what it means, and suggests what schools might expect to see in the Clery compliance and auditing world in the near future. We get to hear from John about the high-level takeaways from the new guidance, the timing of these decisions, what it all means in the current political circumstances, and what might happen in the next year with regards to regulation. John offers loads of details and helpful insight into all the technical aspects of this topic and provides listeners with a lot think about, so make sure to join us for this informative exploration!

Key Points From This Episode:

• Recapping the points of discussion from part one and what we will be covered in part two.
• Getting into the most important high-level takeaways from the new guidance.
• Less complicated definitions and clearer meanings and usage of terms
• Statute and regulation are all-important when it comes to the new guidelines.
• The timing around the new guidance and it relation to the political climate
• The department's deferential approach to guidance in the short term.
• Significance around the new ways that CSAs will be defined.
• Clery geography requirements; the likelihood of the end of the 'one mile rule'.
• Areas in which the guidance has significantly fallen short.
• Going over the new guidance and what we can learn from its length and language.
• Thoughts going forward and the next year in the Clery space.

Tweetables:

"I think we have good reason to believe that a lot of this is going to stick going forward, no matter who takes office in the White House next." — @jtgraff [0:09:41]

"School's are much better today, when it comes to transparency, they know more about the law." — @jtgraff [0:34:04]

"I think higher-ed will continue to struggle with the timely warning question." — @jtgraff [0:41:04]

Links Mentioned in Today's Episode:

ICS Lawyer

SUNY

John Graff on Twitter

Higher Ground Podcast

Hirsch Roberts Weinstein

HRW Higher Ground on Twitter

Department of Education Announcement Rescinding Clery Handbook (October 9, 2020)

Recalibrating Regulation of Colleges and Universities, Report on the Task Force on Federal Regulation in Higher Education (2015)

Hot Topics In Title IX Compliance

Courtney Bullard on Twitter

Today we are doing something a little special and different! This episode is taken from our friends at the Higher Ground Podcast and features John Graff looking at the recent rescinding of the Clery Handbook by the Department of Education and the array of implications of this motion. John goes into loads of detail and gives a great overview of the decision, providing listeners with both forward and backward-facing context on the issue. This episode makes up part one of two on the subject, with part two to follow shortly. The Department's announcement constitutes a drastic shift in its own interpretation of the role the Clery Handbook and Department guidance should play in Clery compliance and enforcement. John breaks down the October 9 announcement, a 2014 Senate hearing addressing the Department's enforcement of its own guidance, the 2015 Recalibrating Regulation of Colleges and Universities, Report on the Task Force on Federal Regulation in Higher Education, and two recent media opinion pieces. All of this aids us in a better understanding of the Department's October 9 action and Clery compliance going forward. In part two, John will analyze the new replacement guidance in light of the material discussed in part one with an eye toward laying out what Clery compliance likely will look like during 2021. Tune in to get it all!

Key Points From This Episode:

• Questions arising after the announcement about the rescinding of the Clery Handbook.
• A roadmap of this discussion and the way the information is organized across two episodes.
• The particulars and an explanation of the Clery announcement.
• The Education Department's likely motivations for these adjustments.
• Unpacking the findings from the task force report on federal regulation in higher education.
• Looking at the specific Clery regulations mentioned in the task force report.
• The role of contractors in working with institutions.
• Some illuminating excerpts from the 2014 Senate hearing on Clery guidance.
• A better understanding of the Department of Education's process in dealing with cases.
• The complicated issue of the efficacy of timely warnings.
• Who should make expert judgments and the dangers of wasting resources on reports.
• Where to from here and what to expect in part two of this series.

Tweetables:

"I would caution everyone out there to not make any sudden moves." — @jtgraff [0:05:17]

"The task force report cites ten specific regulations of concern." — @jtgraff [0:22:01]

"It takes time to work through 300 pages of guidance that impact every aspect of your compliance strategy." — @jtgraff [0:23:50]

"Reporting errors are inevitable. The task force is acknowledging that schools are going to get it wrong through no fault of their own." — @jtgraff [0:44:04]

Links Mentioned in Today's Episode:

ICS Lawyer

SUNY

John Graff on Twitter

Higher Ground Podcast

Hirsch Roberts Weinstein

HRW Higher Ground on Twitter

Joseph Storch

Department of Education Announcement Rescinding Clery Handbook (October 9 2020)

Recalibrating Regulation of Colleges and Universities, Report on the Task Force on Federal Regulation in Higher Education (2015)

June 26 2014 Senate Hearing on Campus Sexual Assaults

Clery Act Does Little Improve Campus Safety Even During Pandemic — 'It's Time to Reform the Clery Act'

'Opinion: Clery Act Wastes College and University Resources'

'The Clery Act and Overseas/Distance Study: New Developments and Compliance Guidance 2016'

Students Faculty Don't Always React Quickly Emergency Alerts — 'Should Stay or Should Go? Jake New (December 9 2014)'

Hot Topics In Title IX Compliance

Courtney Bullard on Twitter

As a way to stay abreast of the current Title IX climate, we have put together this short, informational episode at a time when schools are practically installing and experiencing the new regulations. This episode takes the form of a brief list of pain points that have been identified since these new policies have been put into practice and new reports of sexual harassment are being received. We talk about the overwhelm that 2020 has caused, from the global pandemic and quarantine to the issues specific to the Title IX space. The challenge of filling roles now that schools are back is also mentioned before we run through the evaluation process, issues with complaint-filing, and more. Make sure to join us for this quick update on some important aspects of the Title IX landscape!

Key Points From This Episode:

• Many of us are still reeling from the pandemic, the new regulations and returning to a new normal.
• Advice for tackling the challenges of finding people to fill new roles.
• The process of evaluation; the complexity of definitions in the Title IX space currently.
• Considerations for Title IX Coordinators on when to sign a Formal Complaint.
• The importance of smooth transitions in your Title IX process.

Tweetables:

"Take a deep breath, do what you can, and document any delays in meeting the department of education's August 14th deadline." — @ICSLawyer [0:01:17]

"The Title IX process itself is prescriptive. Many of you are still determining your internal process and who is going to serve in those key Title IX roles." — @ICSLawyer [0:06:05]

Links Mentioned in Today's Episode:

ICS Lawyer

Courtney Bullard on Twitter

Courtney Bullard Email

Joining us on the podcast today to look at the question of bringing external assistance into a Title IX office is Elizabeth H. Canning. Elizabeth has a decade of experience in Title IX and works as a lawyer and human resources professional. We get to hear about the different roles she has occupied at institutions and what her professional setup looks like currently before we dive into the meat of the conversation. Elizabeth's practice helps both schools and workplaces to meet their compliance obligations and get through implementation successfully. Her ultimate goal is to help to create more compliant, productive, and equitable environments. In our chat, we look at the roles that are most suited to bringing in external personnel and Elizabeth underlines the importance of implementation, inclusion, and intersectionality, within and outside of the Title IX space.

We also discuss what it means to be transparent and how much this can aid anyone stepping into a new role. Elizabeth's main point in hiring externally for the roles of external investigator, decision-maker, and even advisor, is the need for clear communication, a sense of understanding, and the appropriate provision of information — these are the keys to successful projects. To finish off our conversation, we turn to some more light-hearted subjects and Elizabeth explains her passion for bee-keeping and how she has been keeping busy during the pandemic! Join us for it all!

Key Points From This Episode:

• Elizabeth's professional history and work in the Title IX space.
• The current position that Elizabeth occupies and what this role entails.
• Creating a welcoming and inclusive environment for students and employees.
• The role of external personnel in Title IX; staffing, skills and other considerations.
• What it means to be a good internal advisor — information and training.
• Elizabeth's advice for institutions looking to hire externally for one of these roles.
• Transparency and understanding with people coming in — being clear from the start.
• The centrality of relevant evidence to an investigation and how this relies on a real understanding of the field.
• The difference between taking training and being qualified.
• Hiring processes for external professionals; ideal scenarios and a front-end approach.
• The constant process of learning and the indispensability of experience!
• Going beyond the basics of the regulations and taking on the challenge of real implementation.
• Mapping and recording the work that is needed; how much this can help the institution.
• Fun facts with Elizabeth; COVID activities, bee-keeping, and more!

Tweetables:

"My work involves overall helping institutions with all forms of discrimination. It goes from creating policies and procedures to training and investigations." — @ecanninglaw [0:05:44]

"The best advisors are the ones that are really informed." — @ecanninglaw [0:19:16]

"Any external person, you need to have really good communication with and you have to be on the same page. They have to be someone who you feel you can communicate with easily." — @ecanninglaw [0:28:18]

"You want to make sure that you work with people who understand what it looks like for you to do this work, because if you are just given a ton of stuff and they haven't narrowed it down, that is going to be very confusing." — @ecanninglaw [0:40:58]

Links Mentioned in Today's Episode:

ICS Lawyer

Elizabeth H. Canning

Elizabeth H. Canning on Twitter

Courtney Bullard on Twitter

Courtney Bullard Email

https://icslawyer.com/#blog [can you add this "Putting Policy Into Practice Blog Series]

We welcome Joe Storch from SUNY back to the show today to chat some more about the new regulations in Title IX and get into some thoughts on the power of prevention. We use this episode as an update on the current goings-on in the litigation around the new regulations but also use it as a jumping-off point for a host of other relevant issues in the space right now. It feels like the year 2020 has so much going on, on so many levels, inside and outside of the Title IX world. The current global context and pandemic have ramifications for us all but there is also the upcoming US presidential election, ongoing issues that have bubbled to the surface in higher education, and the compounding effect of all of these! Joe takes this opportunity to make a strong argument for the importance of prevention and why its longer-term process is what we should all be aiming for. He likens prevention to an olive tree, a crop that takes many years to bear fruit and a symbol of a stable society. Contrasted with the immediate measures that seem to have been favored in the formulation of the new Title IX regulations, prevention will better serve those concerned and society as a whole. At the end of the episode, Joe also shares some useful and inspiring information about the SPECTRUM Conference at SUNY and the amazing outcomes he has already witnessed as a result of the event. We finish off with a message of hope for those of us in the higher education space; it can feel like a particularly difficult time in this line of work at present but the commitment of those working across the country does offer a silver lining and a reason for optimism!

Key Points From This Episode:

• The last couple of weeks in the litigation around the new regulations.
• National and state injunctions and the considerations around these.
• Estimated times for the judge's ruling; why there is an expectation surrounding August 3rd.
• Possible impacts of the upcoming presidential election on the regulations.
• Preventative measures and the investment needed in this area for Title IX.
• The olive tree of prevention — immediate responses do not solve long term problems.
• Research going into contributive causes of cases and the need for governmental support.
• The development of the SPECTRUM Conference hosted by SUNY.
• Compounded challenges facing marginalized communities — family, access, and belief.
• Two success stories from the conference and how these examples underline the need for access.
• Speakers and sessions at the SPECTRUM Conference — what attendees can look forward to!
• Hope for the higher education space; what it means to have such amazing people involved.
• The power of the joint guidance idea — coming together for everyone's benefit.

Tweetables:

"My hope is that the next administration, whether it is next year or five years from now, would try and take that middle of the road approach, bring all the parties together." — @JosephStorchNY [0:15:31]

"I see prevention as an investment, not an expense." — @JosephStorchNY [0:20:49]

"We don't have great evidence of primary prevention and we don't have great evidence of things outside of bystander intervention." — @JosephStorchNY [0:22:02]

"Prevention is really an olive tree and you have to be willing to invest time and resources now in order to bear fruit years down the line. Because you have to change the entire culture." — @JosephStorchNY [0:25:21]

Links Mentioned in Today's Episode:

ICS Lawyer

SUNY

Joe Storch

Joe Storch on Twitter

Donald Trump

Joe Biden

SPECTRUM Conference

Hot Topics In Title IX Compliance

Courtney Bullard on Twitter

Courtney Bullard Email

In this brief informational episode, Courtney discusses prioritizing compliance obligations for meeting the August 14th deadline imposed by the Department of Education for implementation of the new Title IX regulations, her words of advice regarding using model policies as a jumping-off point, the work that must be done after August 14th, her experience working with and talking to Title IX professionals during this time as colleges and school districts juggle these compliance obligations against the planning and decision making for reopening, and more. Expect a new episode each week up through the August 14th deadline discussing different aspects of the new Title IX regulations and updates on the legal challenges to the regulations.

In this episode, Courtney continues her conversation with Jake Sapp on the legal challenges to the new Title IX regulations. Jake is the Deputy Title IX Coordinator and Compliance Officer for Austin College and holds a JD from Stetson. He is well versed in the Title IX litigation landscape and provides some synthesis of this complex topic as we talk about the selection of lawsuits that are underway at present, the challenges that Jake foresees for institutions and coordinators, and what exactly has been happening in the Supreme Court in the last couple of weeks! If you have not yet listened to part one of this conversation make sure to double back and give it some ears.

Key Points from This Episode:

• The array of lawsuits and cases that are currently in progress.
• Foreseeable challenges on the horizon; the department's response and more.
• The likelihood of the success of these injunctions — when will enforcement happen?
• This week in the Supreme Court and the surprising rulings that have been made.
• The historical importance of Title VI and VII to this conversation.
• Unpacking the constituent parts of Title VI and Title VII.
• The bathroom bills and the potential challenges to these laws.
• Jake's valuable webinar series and the subjects they are focusing on.

Tweetables:

"There's not too many different courses of action but there is so many different pieces under each challenge." — @JakeHigherEdLaw [0:10:40]

"In my mind, the main players have already filed their complaints." — @JakeHigherEdLaw [0:12:18]

"I think that the department is going to wait to respond for as long as possible, so that they don't show their hand." — @JakeHigherEdLaw [0:12:40]

"I think that there is a strong possibility that we are going to see the enforcement date, on August the 14th, not actually be the date of enforcement." — @JakeHigherEdLaw [0:15:16]

Links Mentioned in Today's Episode:

ICS Lawyer

Jake Sapp

Jake Sapp on Twitter

Stetson University College of Law

Austin College

Courtney Bullard on Twitter

Courtney Bullard Email

Joining Courtney to discuss legal challenges to the new Title IX regulations that were issued on May 6th is Jake Sapp! Jake is the Deputy Title IX Coordinator and Compliance Officer for Austin College and holds a JD from Stetson. He is very well versed in the current Title IX landscape as well as the important precedents relevant to the space. Jake has a large amount of experience speaking on the topics of Title IX and its related legal trends, so who better to join Courtney in this in-depth discussion. Since their issuing, there have been procedural and substantive challenges to these new regulations. These legal challenges are complex with many layers with much to unpack so the conversation is broken down into two parts. For this installment, we look into the litigation and the grounds on which it plants its argument. Jake explains the areas that these lawsuits are challenging, including the injunctive relief sought and whether it will impact the August 14th implementation deadline. We then look into possible outcomes and what can be realistically expected by institutions and Title IX professionals. Don't forget to stay tuned for part two!

Key Points From This Episode:

• Whether the litigation that challenges the new regulations will impact the August 14th deadline.
• How these injunctions might play out across different states and nationally.
• A better understanding of injunctions and what is being asked in these cases specifically.
• How things officially stand with regards to the implementation date.
• The arguments around the administrative procedure act and what is being challenged.
• Some of the keys areas of substantive and procedural challenges to the new regulations found in the current lawsuits, generally.
• How the Title IX regulations impact state laws and the issue of preemption.
• What these lawsuits are hoping to achieve; halting immediate enforcement and invalidation of certain parts of the rules.
• Responsibilities of the agency in the issuing of new rules; what is necessary and what is not.
• The basis for an arbitrary and capricious argument against a federal agency.
• Possible outcomes of the court cases and what will happen to the regulations.

Tweetables:

"When you issue these injunctions, you can have inconsistent rulings across different states." — Jake Sapp [0:17:55]

"Agencies have to show their work, they have to give the information they use to reach a design and have to show why." — Jake Sapp [0:36:22]

"You have to look at, is the agency decision a product of illogical or inconsistent reasoning? Did it fail to consider important factors relevant to the actions?" — Jake Sapp [0:36:41]

Links Mentioned in Today's Episode:

ICS Lawyer

SUNY

Jake Sapp

Stetson University College of Law

Austin College

Courtney Bullard on Twitter

Courtney Bullard Email

There's no question that these are unprecedented times for everyone, including school districts and institutes of higher education. COVID, killer bees, natural disasters, and now the new Title IX regulations issued by the department of education. My guest this week is Melissa Carleton, a partner at Bricker & Eckler. Melissa advises higher education entities in a variety of areas, including student affairs, student conduct, disability accommodation, student confidentiality, policies, contract, governance, and employment matters. She also has a great deal of experience in guiding the institutional response to allegations of sexual abuse. She regularly works with colleges, universities, career technical schools, and K-12 school districts to comply with Title IX and, where applicable, the Clery Act, as well as implementing guidance and regulations. In today's episode, we discuss the changes and challenges that the regulations present for school districts, due to Melissa's experience in that area, and the work we've been doing together on the joint guidance. Tune in to find out more.

Key Points From This Episode:

• What the implications of Title IX regulations mean for K12 vs. higher education institutions.
• The challenges the new regulations pose for K-12.
• The formal complaint and how it plays into the written notice of an investigation.
• The new narrow definition of sexual harassment and higher requirements for analysis.
• Parents and the danger of formal complaints that young children wouldn't comprehend.
• The visibility and role of Title IX coordinators in school districts.
• Things to pay special attention to regarding Title IX regulations.
• What Melissa would be doing if she weren't a lawyer and the instrument she played in high school.

Tweetables:

"We've shifted to a paradigm where school districts need to have actual knowledge to take action on an allegation of sexual harassment, and the actual knowledge occurs when a formal complaint is filed" — @MCarletonOhio [0:10:15]

"At the K-12 level… if it doesn't fall within the definition of sexual harassment… How are you going to address that behavior so that it doesn't rise to the level of sexual harassment?" — @MCarletonOhio [0:12:37]

Links Mentioned in Today's Episode:

Melissa Carleton on Twitter

ICS Events

Courtney Bullard Email