Education Law Commons^™

Aequitas: Seeking Equilibrium In Title Ix, Raymond Trent Cromartie

Sturm College of Law: Faculty Scholarship

Over the past two decades, the scope of Title IX has expanded drastically and now includes the investigation and adjudication of sexual misconduct cases through campus tribunals. Beginning in 2011, the Obama Administration, through a “Dear Colleague Letter” and subsequent guidance, initiated this process by establishing guidelines that required schools to develop and implement policies and procedures for the handling of sexual misconduct cases. Following the publication of the Obama-era guidance, schools scrambled to ensure compliance with the federal guidance, which led to a myriad of applications by universities. Unfortunately, the fallout from the 2011 guidance was widespread litigation initiated …

A Third Way: Title Ix’S Potential Beyond Criminal And Civil Law Paradigms, Gabriella Kamran

Mississippi College Law Review

A single occurrence of sexual violence on a college campus can lead to any of three major legal outcomes. The first is a traditional criminal prosecution of the alleged perpetrator. The second is a civil lawsuit against the school under Title IX, in which the victim alleges that the school’s disciplinary procedures failed to deliver an adequate response according to the body of law developed by courts interpreting Title IX. The third, which has become increasingly important and visible after a decade of student activism and initiatives by the Department of Education, is an administrative enforcement action by the Department’s …

Charting A Course To Gender Equity: Sexual Harassment Reporting Rates In Charter Schools, Gabriella Kamran

Mississippi College Law Review

Charter schools and sexual harassment are two hot-button issues in the education landscape, but their intersection is seldom addressed in research or public discourse. This Article examines whether K-12 charter schools report allegations of sexual harassment, including harassment on the basis of sexual orientation, at a rate different from that of traditional public schools. I analyzed data from the Department of Education’s 2015-16 Civil Rights Data Collection (CRDC) report and found that the average national reporting rate of sexual harassment allegations is significantly higher among traditional public schools than it is among charter schools. I then used the National Alliance …

Title Ix And "Menstruation Or Related Conditions", Bridget J. Crawford, Emily Gold Waldman, Marcy L. Karin, Naomi R. Cahn, Elizabeth B. Cooper, Margaret E. Johnson

Elisabeth Haub School of Law Faculty Publications

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law's ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there …

Title Ix’S Unrealized Potential To Prevent Sexual Violence, Katharine B. Silbaugh

Faculty Scholarship

The mandate of Title IX is equality in educational opportunities. If educational institutions could prevent sexual assaults from occurring, they would more fully ensure that students are not limited in their ability to benefit from the school’s educational programs. However, Title IX administration on college campuses still focuses far more on post-assault infrastructure than on assault prevention.

Yet with the ever-increasing particularity of the assault response requirements emanating from the Department of Education (“DOE”)2 and courts, Title IX jurisprudence has strayed too far from this basic purpose: to ensure that students in federally funding schools are not denied or limited …

Classrooms Into Courtrooms, Naomi M. Mann

Faculty Scholarship

The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …

A Gender And Race Theoretical And Probabilistic Analysis Of The Recent Title Ix Policy Changes, Jordan Wellington

Scripps Senior Theses

On May 6th, 2020, after extensive public comment and review, the Department of Education published the final rule for the new Title IX regulations, which took effect in schools on August 14th. Title IX is the nearly fifty year old piece of the Education Amendments that prohibits sexual discrimination in federally funded schools. Several of these changes, such as the inclusion of live hearings and cross examination of witnesses, have been widely criticized by victims’ rights advocates for potentially retraumatizing victims of sexual assault and discouraging students from pursuing a Title IX claim. While the impact of the new regulations …

Consent To Student Loan Bankruptcy Discharge, John P. Hunt

Indiana Law Journal

As the Department of Education reconsiders its rules governing consent to discharge of federal student loans in bankruptcy, this Article argues for the first time that the Department should approach the problem specifically as an operator of programs to promote education and benefit students, rather than as an entity interested only in debt collection. This Article shows that the Department’s rules to date have treated whether to consent to discharge primarily as a pecuniary issue, without regard to the educational goals of the student loan programs. For example, the Department apparently has never considered whether making it difficult to discharge …

Flunked Out: A Comparative Look At State Educational Code, Title Vi Of The Civil Rights Act, And Slavery Education, Emory French-Folsom, Maryn Rolfson

Brigham Young University Prelaw Review

In 2017, a mock slave auction was held in a 5th grade classroom at

South Orange Elementary School in New Jersey, which included the

‘sale’ of a black child by white students. A few weeks after this incident,

students from another elementary school in the same district

made posters advertising the sale of African American slaves, which

were displayed in school hallways. Wisconsin 4th graders in 2018

were given a homework assignment which asked them to explain

“three good reasons for slavery.”

Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis

Faculty Scholarship

Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in …

Federal Financing Of Higher Education At A Crossroads: The Evolution Of The Student Loan Debt Crisis And The Reauthorization Of The Higher Education Act Of 1965, Camilla E. Watson

Scholarly Works

Currently, there are 44.2 million Americans holding student loan debt collectively totaling $1.5 trillion. This massive debt has a profound effect, not only on the lives of the debtors, but also on the national economy because it prevents the debtors from buying homes and cars and creating new businesses. This debt is also speculated to be a likely trigger for the next housing bubble because student loans, like the subprime mortgage loans underlying the 2008 financial crisis, are securitized and sold to investors. But many of those with student loans struggle to find jobs that will enable them to pay …

"Cerd-Ain" Reform: Dismantling The School-To-Prison Pipeline Through More Thorough Coordination Of The Departments Of Justice And Education, Lisa A. Rich

Lisa A. Rich

In the last year of his presidency, President Barack Obama and his administration have undertaken many initiatives to ensure that formerly incarcerated individuals have more opportunities to successfully reenter society. At the same time, the administration has been working on education policy that closes the achievement gap and slows the endless flow of juveniles into the school-to-prison pipeline. While certainly laudable, there is much more that can be undertaken collaboratively among executive branch agencies to end the school-to-prison pipeline and the endless cycle of people re-entering the criminal justice system.

This paper examines the rise of the school-to-prison pipeline through …

Title Ix Violations Arising From Title Ix Investigations: The Snake Is Eating Its Own Tail, Joe Dryden, David Stader, Jeanne L. Surface

Idaho Law Review

In 2011, the Department of Education Office of Civil Rights published a Dear Colleague Letter (DCL) detailing the department’s views on the roles and responsibilities of colleges and universities under Title IX specifically as they relate to allegations of sexual assault. Numerous studies conclude that close to 1 in 5 college women are sexually assaulted while enrolled in institutions of higher education. Many of these studies are flawed yet they are being used as the justification for administrative overreach. Despite not having the legal authority, the DCL changed the legal standard to be applied when conducting sexual assault investigations from …

Title Ix At 45: Equal Treatment Of Students In High School Athletic Programs, Suzanne E. Eckes Dr.

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Uniform Rules: Addressing The Disparate Rules That Deny Student-Athletes The Opportunity To Participate In Sports According To Gender Identity, Chelsea Shrader

University of Richmond Law Review

No abstract provided.

"Cerd-Ain" Reform: Dismantling The School-To-Prison Pipeline Through More Thorough Coordination Of The Departments Of Justice And Education, Lisa A. Rich

Loyola of Los Angeles Law Review

In the last year of his presidency, President Barack Obama and his administration have undertaken many initiatives to ensure that formerly incarcerated individuals have more opportunities to successfully reenter society. At the same time, the administration has been working on education policy that closes the achievement gap and slows the endless flow of juveniles into the school-to-prison pipeline. While certainly laudable, there is much more that can be undertaken collaboratively among executive branch agencies to end the school-to-prison pipeline and the endless cycle of people re-entering the criminal justice system.

This paper examines the rise of the school-to-prison pipeline through …

Not Yet Enough: Why New York's Sexual Assault Law Does Not Provide Enough Protection To Complainants Or Defendants, Nicolo Taormina

Journal of Law and Policy

Title IX requires colleges to investigate and adjudicate allegations of sexual assault between students. New York State has recently passed a new law called “Enough is Enough,” which strengthens Title IX’s requirements. However, neither Title IX nor “Enough is Enough” provides strict guidelines for the procedures colleges must use when adjudicating complaints. This means that colleges across New York employ different procedures and offer different sets of rights to their students. After examining federal and state law, some examples of college procedures and the effects they have on students, this Note concludes that “Enough is Enough” must be amended to …

The Trouble With 'Bureaucracy', Deborah L. Brake

Articles

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing …

Title Ix And Social Media: Going Beyond The Law, Emily Suran

Michigan Journal of Gender & Law

The U.S. Department of Education is currently investigating over eighty colleges and universities for civil rights violations under Title IX. From a punitive standpoint, these investigations likely will have minimal impact. Indeed, since the Alexander v. Yale plaintiffs first conceived of Title IX in a sexual harassment context, the nondiscriminatory principles of Title IX have proven disappointingly difficult to enforce. However, in today’s world of grassroots social activism, Title IX has taken on a new, extralegal import. Title IX has become a rallying cry for college activists and survivors. Despite (or perhaps because of) its limitations as a law, it …

Promoting Equitable Law School Admissions Through Legal Challenges To The Lsat, Al Alston

Al Alston

No abstract provided.

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Student And Professorial Causes Of Action Against Non-University Actors, Andrew Kloster

Andrew Kloster

While courts have increasingly looked to contract law to vindicate the rights of students against universities and colleges, traditional contract law sometimes provides inadequate protections in situations where rights are adversely affected by third-party action.

The rise of administrative oversight by the Department of Education and by other third-party governmental actors limits the universe of contracts that can be formed and is constantly changing the student-university relationship. This oversight is so pervasive that adverse administrative decisions of even private universities could possibly be characterized as state action or agency action for the purposes of a direct constitutional lawsuit or suit …

Gender Segregation In The Public Schools; Opportunity, Inequality, Or Both., Bill Piatt

The Scholar: St. Mary's Law Review on Race and Social Justice

Should the public schools be allowed to segregate girls from boys in the classroom? There is a history of single-sex education in this country, but there are concerns about single gender classrooms. In recent decades, researchers have begun to assert that requiring boys and girls to be taught together has a negative impact on the educational progress because of inherent differences in boy/girl learning behavior, or even in the development of their brains. Proponents of gender exclusive classrooms point out the voluntary nature of the programs, and the explicit findings of the Department of Education justifying such programs. Opponents argue …