Battle Royal Shaping Up Between NC and DOJ on Bathroom Access

Earlier today North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against each other asking a federal judge to determine rights under Title VII of the Civil Rights Act (prohibits employment discrimination), Title IX of the Education Amendments of 1972 (prohibits sex discrimination), and the Violence Against Women Reauthorization Act of 2013 (VAWA).

The two complaints focus on a recently-enacted NC state law—the Public Facilities Privacy and Security Act (the “Act”) aka HB 2.  That law provides privacy protections for, among others, state employees, by requiring public agencies to require multiple occupancy bathroom or changing facilities be designated for, and only used by, persons based on their biological sex.

In the first complaint, the state of North Carolina seeks a declaration that its state law on bathroom and changing facilities is compliant with Title VII and VAWA.  In the second complaint, the United States (through the Department of Justice) contends the state of North Carolina, the North Carolina Department of Public Safety, the University of North Carolina, and the Board of Governors of the University of North Carolina have violated Title VII, Title IX, and VAWA–largely on the grounds the NC law does not allow one to use a public bathroom (or changing facility) in accord with one’s gender identity.  Not discussed here is a third complaint also filed today by the NC President pro tempore of the Senate and NC House Speaker against the federal government.

Once the noise and chatter dissipate, the bottom line for Title VII (enacted in 1964) and Title IX (enacted in 1972) will be—what does the prohibition of discrimination on the basis of “sex” mean?  Does “sex” mean biological sex or does it sweep more broadly to encompass gender identity, regardless of one’s anatomy?  What does the legislative history reveal? Ultimately these will be questions for the Supreme Court.

Federal Court to CFPB: No Authority Over Accreditation

In what appears to be the first decision to address the scope of authority of the Consumer Financial Protection Bureau (CFPB) in the higher education context, last Thursday (April 21, 2016) a federal district court in Washington, DC held the CFPB had no authority to issue a Civil Investigative Demand (CID) to the accreditor, Accrediting Council for Independent Colleges and Schools (ACICS).  The court found troublesome the CID’s language stating the purpose of the CID was to “determine whether any entity . . . has engaged . . . in unlawful acts and practices in connection with accrediting for-profit colleges.Consumer Financial Protection Bureau v. Accrediting Council for Independent Colleges and Schools, No. 15-1838, 2016 U.S. Dist. LEXIS, 53644 at 7 (D.D.C. April 21, 2016).

ACICS contended the CFPB had no statutory authority to conduct an investigation into the accreditation process of for-profit schools.  CFPB argued because it had authority to investigate schools in relation to their lending and financial-advisory services, it also had authority to investigate whether any entity has engaged in any unlawful acts relating to the accreditation of those schools.

As the court stated, CFPB’s “post-hoc justification is a bridge too far!” Consumer Financial Protection Bureau at 8-9.   The accreditation process has no connection to a school’s private student lending practices, nor is the accreditor, ACICS, involved in the financial aid decisions of the schools it accredits. For these and other reasons, the court found CFPB lacked authority to investigate the process for accrediting for-profit schools, and the CID was denied.

Association’s Draft Report Raises Questions about Due Process Under Title IX

Earlier today the American Association of University Professors (AAUP) released a draft report, The History, Uses, and Abuses of Title IXraising questions about due process for the accused under Title IX of the Education Amendments of 1972.  While the draft report is much broader than a due process discussion, due process is one of the key issues analyzed.  The issue is fundamentally the same one a group of Harvard law professors questioned in a statement provided to the Boston Globe in October 2014.

Taking things one step further, the AAUP endorses the “clear and convincing” evidentiary standard for campus sexual assault and harassment disciplinary proceedings, over the lesser “preponderance of evidence” standard announced by the Office for Civil Rights in its April 2011 Dear Colleague Letter.

In a related vein, earlier this month Senator James Lankford (R-OK) wrote Education Secretary John King Jr. raising questions about the same Dear Colleague, contending the department should have put the letter through notice and comment rulemaking, as required by the Administrative Procedures Act.  The initial letter from Lankford to King in January is here, the response from the Assistant Secretary for OCR is here, and the most recent Lankford follow-up letter is here.

Actions by House and Senate Education Committees Set for February 25, 2016

Tomorrow (February 25, 2016) at 10:00 AM, the House Committee on Education and the Workforce will receive testimony from Acting Secretary of Education Dr. John King Jr. at a hearing focusing upon upholding the letter and intent of the Every Student Succeeds Act.

Then, later in the day at 2:00 PM, the Senate Health Education Labor and Pensions Committee will meet  in executive session to hear from Dr. King as President Obama’s nominee to be Secretary of Education.

House Implementation Hearing on Every Student Succeeds Act

Earlier today the House Education and Workforce Committee’s Subcommittee on Early Childhood, Elementary, and Secondary Education held its first hearing (“Next Steps for K-12 Education:  Implementing the Promise to Restore State and Local Control”) on the recently-enacted Every Student Succeeds Act.  The Act reauthorized the Elementary and Secondary Education Act of 1965.

It was my privilege to present testimony at the hearing, joining Oklahoma State Superintendent of Public Instruction Joy Hofmeister, Hartselle (AL) City Schools Superintendent Dr. Paul “Vic” Wilson, and Legal Director Selene Almazan of the Council of Parent Attorneys and Advocates.

School Choice on Agenda for House Committee on Education and the Workforce

School Choice will be on the front burner on Wednesday, February 3, 2016, as the House Committee on Education and the Workforce holds a hearing (“Expanding Educational Opportunity Through School Choice”) at 10:00 AM in Room HVC-210 of the Capitol Visitors Center.   Witnesses are yet to be announced.  Stay tuned for updates as available.

UPDATED 2/2/16, 3:30 PM EST:  Witnesses are:

Mr. Gerard Robinson, Resident Fellow at the American Enterprise Institute, Washington, DC

Hon. Rob Bryan, N.C. House of Representatives, Charlotte, NC

Dr. Luis Huerta, Assoc. Prof. of Education and Public Policy, Teachers College, Columbia University, New York, NY

Ms. Denisha Merriweather, Student at the University of South Florida, Tampa, FL

Title IX, Transgender Students, Locker Rooms and Bathrooms

On both the K-12 and higher education fronts, school districts and institutions of higher education continue to face Title IX lawsuits brought by transgender students or their parents over schools’ policies on bathroom and locker room use.  In the two most prominent cases, G.G. v. Gloucester County School Board (Eastern District of Virginia) and Johnston v. University of Pittsburgh (Western District of Pennsylvania), the school district and university prevailed on Motions to Dismiss.  A close reading  provides a good sense of the classic kind of fact pattern in these cases and the reasoning of at least two courts.

Both cases are on appeal to the U.S. Court of Appeals for the Fourth and Third Circuit, respectively. Multiple amici have weighed in, as have several states and the United States.  Oral argument was held earlier this week in Gloucester County School Board while briefing continues in the University of Pittsburgh case into mid-February.

School districts and institutions would do well to keep close tabs on this aspect of Title IX litigation.

Scope of Office for Civil Rights Enforcement Authority Questioned

“Behind the Scenes:  A Closer Look at OCR’s Enforcement Authority” questions the legal authority of the Office for Civil Rights to demand certain remedies as a condition for resolving Title IX sexual assault complaints against colleges and universities.  This short article discusses the enforement authority found in Title IX of the Education Amendments of 1972, as well as accompanying regulations.   

Six Higher Education Title IX Sexual Misconduct Agreements Analyzed

During 2014, six universities–Tufts University, Virginia Military Institute, Ohio State University, Princeton University, Southern Methodist University and Harvard Law School–signed Title IX resolution agreements resolving sexual misconduct or sexual harassment complaints (or both) filed with the U.S. Department of Education’s Office for Civil Rights (“OCR”), and in one instance, a Title IX compliance review initiated by OCR. 

The paper, “Behind the Scenes:  A Closer Look at the Title IX Resolution Letters and Agreements in 2014,” analyzes the agreements and corresponding letters of findings, and concludes with a discussion of common themes.   

Court of Appeals Holds Notice and Comment Rulemaking Required

In a 2-1 decision  announced on November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed a Texas court’s injunction against executive actions of the Department of Homeland Security that had sought to give quasi-legal status and work permits to certain undocumented immigrants.  In so holding, the court noted the executive actions constituted, in effect, a substantive rule requiring Notice and Comment Rulemaking under the Administrative Procedures Act (APA), which the Department had not done (see the discussion beginning at page 42).    

The question arises whether other actions of the executive branch, such as binding Dear Colleague Letters, Memoranda, and the like may be legally vulnerable under the court’s APA analysis.  Yes, they are.        

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