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Welcome
Welcome to the fourth issue of The Academic Advisor for 2024.
We begin this edition with discussion of Title IX of the Education Amendments of 1972. On April 19, 2024, the U.S. Department of Education released its long-awaited amendments to existing Title IX regulations. The 2024 amendments take effect on August 1, 2024. As a result, for educational institutions subject to Title IX, the countdown to compliance has commenced and necessitates significant updates to Title IX policies, procedures, and training.
In addition to Title IX, this edition also examines the following topics of import for schools, institutions of higher education, and other education-focused organizations:
- An education bill that limits book challenges in Florida;
- The latest U.S. Circuit Court decision addressing transgender athletes;
- The National Association of Intercollegiate Athletics’ ban on transgender athletes’ participation in certain sports;
- How schools are addressing explicit AI-generated images of students;
- The targeting of school librarians in a new wave of censorship legislation;
- University challenges with conceal carry permits;
- The Final Rule adopted by the Equal Employment Opportunity Commission under the Pregnant Workers Fairness Act; and
- New salary requirements for overtime exemptions from the U.S. Department of Labor.
Looking ahead to summer, we are also pleased to announce the return of our in-person SuperVision Labor & Employment Symposium, an all-day, free legal seminar being held in Charleston, West Virginia on June 21, 2024. The Symposium will focus on "The Future of Work: Legal Strategies for Employers in a Dynamic Landscape." This program will dive into many hot topics of interest to human resources professionals and anyone who manages employees, including remote work, workplace investigations, artificial intelligence, emerging technologies and privacy, union avoidance, and workplace violence. We hope you can join us for this event. Please click here to learn more and register.
If you have any questions about these topics, please let us know. As always, thank you for reading.
Erin Jones Adams, Member, Co-Chair of the Education Practice Group, and Co-Editor of The Academic Advisor
and
Kevin L. Carr, Member, Co-Chair of the Education Practice Group, Co-Chair of the Labor and Employment Practice Group, and Co-Editor of The Academic Advisor
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The Countdown to Compliance: U.S. Department of Education Releases 2024 Amendments to Title IX Regulations | |
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By Erin Jones Adams
On April 19, 2024, nearly two years after its July 2022 release of proposed amendments to the 2020 Title IX regulations, the U.S. Department of Education (ED) issued final amendments to the Title IX regulations, 34 C.F.R. 106.1 et seq. (2024 Amendments). The 2024 Amendments take effect August 1, 2024, and obligate Title IX-covered entities to apply the requirements set forth in the 2024 Amendments to complaints of sex discrimination involving alleged misconduct that occurs on or after that date. In conjunction with its issuance of the 2024 Amendments, ED also provided Title IX-covered institutions with various resources, including a Summary of Key Provisions, Fact Sheet, and Resource for Drafting Nondiscrimination Policies, Notices of Nondiscrimination, and Grievance Procedures that comply with the 2024 Amendments. The official version of the 2024 Amendments was published in the Federal Register on April 29, 2024.
The 2024 Amendments include many key changes to the 2020 Title IX regulations. In addition to expanding the applicability of Title IX to all forms of sex-based misconduct, the 2024 Amendments also afford institutions greater latitude in designing a grievance process that aligns with their resources. In particular, for institutions not subject to heightened standards under other laws, the 2024 Amendments allow for the reintroduction of a single-investigator model with enhanced due process protections in lieu of a live hearing with cross examination; and in turn, institutions have options in deciding whether to maintain the adjudication procedures established by the 2020 Title IX regulations or to return to an investigation and decision-making model that more closely mirrors a human resources approach to resolving complaints subject to the specific requirements provided in the 2024 Amendments. While flexibility is generally positive, in the context of Title IX, it likely will mean more involvement by campus leaders and other constituents in implementing policy changes, more time spent by Title IX Coordinators and administrators corralling differing perspectives, and more room for scrutiny by internal and external constituents. A summary of other key changes under the 2024 Amendments is available via the link below.
With the countdown to compliance underway, Title IX Coordinators and administrators should promptly review the 2024 Amendments and related resources provided by ED; determine the internal action steps and timeline (e.g., committee involvement, board input, approval process) that institutional procedures may require to modify their existing Title IX programs and how this can be achieved by the August 1 deadline; and begin the process of developing updates to Title IX policies, procedures, and training that comply with the 2024 Amendments for the start of the new academic year. Spilman attorneys stand ready to assist our clients with these steps.
Click here to read the entire article.
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"The bill, which goes into effect on July 1, states that Florida residents without children in a school district 'may not object to more than one material per month' and instructs the state's Board of Education to adopt changes to implement the decision."
Why this is important: Florida Governor Ron DeSantis recently signed a bill that alters the state's 2023 law regarding the challenge of classroom materials, responding to widespread controversy over book removals from public school shelves. The new law, effective July 1, 2024, introduces restrictions on how many materials residents without children in schools can object to, limiting them to one material per month. However, parents with children enrolled in Florida school districts can still file multiple challenges without penalty.
DeSantis acknowledged that certain school districts may have overstepped in their removal of books, suggesting that some individual bad actors have exploited curriculum transparency for political agendas. Florida witnessed a significant surge in book bans during the first half of the 2023-2024 school year, with the state leading in the number of bans compared to others. The bans predominantly affected 11 school districts, with one, Escambia County Public Schools, facing particular scrutiny due to over 1,600 reported instances.
The controversy surrounding book bans has turned school board meetings into contentious battlegrounds, pitting parents who advocate for the removal of certain books against those who argue for their retention. Meanwhile, educators have grappled with navigating laws signed by DeSantis that expand parental rights in schools, including restrictions on sexual education and instruction on sexual orientation and gender identity in lower grades.
Despite DeSantis' assertion that Florida does not ban books in schools, the removal of numerous titles from school shelves has raised concerns. PEN America, a literacy and free expression advocacy group, emphasized that book bans are undermining educational values and free expression, particularly regarding narratives about race, sexual identities, and sexual content.
An analysis by PEN America revealed that books discussing sex, abortion, rape, race, racism, and LGBTQ+ themes are among the most targeted for censorship. The absence of a consistent legal definition of what constitutes sexually explicit material has led to confusion and inconsistency in book challenges across states. Additionally, books discussing race, racism, and LGBTQ+ themes, especially transgender identities, continue to be heavily targeted for removal. --- Shane P. Riley
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West Virginia Transgender School Athlete Successful in U.S. Court | |
By Lisa M. Hawrot
On April 16, 2024, the U.S. Court of Appeals for the Fourth Circuit determined that because West Virginia law and practice have long provided for sex-differentiated sports teams, the sole purpose of the West Virginia "Save Women's Sports Act" (Act) is to prevent transgender girls from playing on girls' sports teams. It further determined that the Act cannot be lawfully applied to prevent a 13-year-old transgender girl who takes puberty-blocking medication and has publicly identified as a girl since third grade from participating in her school's cross country and track teams.
The Act contains provisions on how sports teams are to be designated as "male," "female," or "co-ed or mixed." It discusses how teams or sports designated for females, girls, or women are not open to males when the selection for the teams is based on competitive skill or it is a contact sport. Females, however, are not barred from participating in any team. The Act defines a "male" and "female" based upon biological sex determined at birth and defines "biological sex" as being solely based upon the individual's reproductive biology and genetics at birth.
The child at issue in this case is currently an eighth-grade student known as B.P.J. Her sex at birth was male and she has publicly identified as female since third grade. B.P.J. also takes puberty-blocking hormones. B.P.J. has argued that enforcement of the Act against her violates the Equal Protection Clause and Title IX. As to the issues in this case, the Fourth Circuit concluded that it would be inappropriate to grant B.P.J. summary judgement on her Equal Protection claim. The specific question before the Fourth Circuit was whether the decision to exclude B.P.J. from the teams she wanted to join was substantially related to an important government interest. The Fourth Circuit analysis probed into the defendant's arguments and concluded that the position that all cisgender girls are entitled to be protected from competition from all transgender girls, even when the result is harm to transgender girls, was flawed as there is no governmental interest in protecting one girl's ranking in a competition or in ensuring that cisgender girls do not ever lose to transgender girls. The Fourth Circuit then focused on the fact that B.P.J. has been receiving puberty blockers and thus has never experienced elevated levels of testosterone and has also been receiving gender affirming hormone therapy. However, the final and perhaps most meaningful portion of the Fourth Circuit's decision came in considering this question: Even without going through what is called the "Tanner 2" stage of puberty, do individuals whose sex is assigned at birth as male have a meaningful competitive athletic advantage over cisgender girls? On this point, the Fourth Circuit determined that a genuine issue of material fact exists and the district court erred in granting B.P.J. summary judgment on the Equal Protection claim.
In contrast, the Fourth Circuit concluded that the district court did err in not granting summary judgement to B.P.J. on her Title IX claim. Using some of the analysis from the Equal Protection claim, the Fourth Circuit concluded that since B.P.J. can show both worse treatment based on sex and resulting harm, applying the Act to her would violate Title IX. It concluded that the Act forbids one and only one category of students from participating in sports teams corresponding with their gender and that is transgender girls. Thus, the Title IX issue was remanded with instructions to grant summary judgment to B.P.J. on this claim.
Initially, this seems to be a case that certainly could make it to the U.S. Supreme Court. However, whether or not the U.S. Supreme Court will take up this issue, let alone what it might decide, is up for debate. Both the Fourth Circuit and the original district court's ruling granting the preliminary injunction emphasized that B.P.J. was only seeking relief as the law applied to her. The Fourth Circuit went further in its opinion and stated that it was not holding that government officials are forbidden from creating separate sports teams for boys and girls or that Title IX requires schools to allow every transgender girl to play on girls' teams. Thus, because this case has been so narrowly construed, it could provide the U.S. Supreme Court with an "out" to not accept it and avoid addressing this issue on a larger scale.
Click here to read the entire article.
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"The NAIA said it supported 'fair and safe competition for all student-athletes' and that 'Title IX ensures there are separate and equal opportunities for female athletes.'"
Why this is important: The National Association of Intercollegiate Athletics (NAIA) recently announced a ban on transgender athletes from participating in women's sports. The decision has been met with both support and criticism, with advocates arguing it protects fair competition, while opponents believe it discriminates against transgender individuals.
The NAIA stated that its decision was rooted in its commitment to "fair and safe competition for all student-athletes." In its announcement, the NAIA referenced Title IX, a federal law that prohibits sex-based discrimination in educational programs and activities, including athletics. The organization emphasized that Title IX ensures there are "separate and equal opportunities for female athletes."
This decision by the NAIA comes amidst a broader national conversation about the inclusion of transgender athletes in sports, particularly women's sports. Proponents of such bans argue that allowing transgender women to compete in women's sports could create an unfair advantage due to physiological differences that develop during male puberty.
Supporters of the NAIA's decision believe that maintaining separate categories for male and female athletes is crucial to preserving the integrity of women's sports. They argue that biological differences between males and females, such as muscle mass, bone density, and testosterone levels, can provide a competitive advantage that could compromise fair competition. Furthermore, proponents of the ban often point to concerns about the potential impact on female athletes' scholarship opportunities, claiming that allowing transgender women to compete could reduce opportunities for cisgender female athletes.
On the other side of the debate, critics of the NAIA's ban argue that it unfairly targets and discriminates against transgender athletes. They contend that transgender women, who have undergone hormone therapy as part of their transition, may not maintain the same physiological advantages associated with male puberty. Additionally, opponents of the ban raise questions about the interpretation and application of Title IX in this context. They argue that excluding transgender athletes from women's sports could be viewed as a form of sex-based discrimination, contradicting the spirit of inclusivity and equality that Title IX aims to promote. The newly issued Title IX regulations support this proposition.
The broader implications of the NAIA's decision reflect a larger societal debate about gender identity, equality, and the definition of fairness in sports. As more states and organizations grapple with these complex issues, the debate will likely continue to evolve, with legal challenges and legislative action shaping the future of transgender participation in athletics. --- Kevin L. Carr
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"AI is being used to 'undress' images of students or put their faces on pornographic images, which are then passed around the school."
Why this is important: In today's digital age, the proliferation of technology has brought about unprecedented challenges, especially in the realm of student safety. A concerning trend has emerged where AI technologies are being exploited to generate pornographic images by "undressing" photos of students or superimposing their faces onto explicit content. These manipulated images, once created, are then circulated within school communities, causing distress, humiliation, and potential harm to the students involved.
While the law is still evolving around this issue, most legal scholars agree that as guardians of student safety and well-being, schools bear a significant responsibility to address and combat this disturbing phenomenon. Failure to take decisive action can expose schools to potential legal liabilities, including claims of negligence, emotional distress, and failure to provide a safe educational environment.
Schools should prioritize implementing robust cybersecurity measures to prevent unauthorized access to student photos and ensure strict protocols are in place for handling and reporting incidents involving AI-generated pornographic images. Additionally, schools should educate students, staff, and parents about the risks associated with sharing personal photos online and encourage responsible digital citizenship.
Recognizing the growing threats posed by AI-generated fake content, some states have taken proactive steps to equip schools with guidelines and resources to address these challenges. New AI handbooks issued by state departments of education aim to provide schools with comprehensive strategies to identify, respond to, and mitigate the effects of AI-generated harassing or bullying content.
These handbooks typically outline best practices for cybersecurity, student privacy protection, incident reporting, and crisis management. They also emphasize the importance of fostering a supportive and inclusive school culture where students feel safe to report concerns and seek help when faced with digital harassment or exploitation. --- Kevin L. Carr
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"Proposed policy changes include removing obscenity law exemptions."
Why this is important: Multiple states have introduced bills that impose criminal penalties against libraries and librarians by removing protections from obscenity laws. Some commentators believe the bills are states' attempts to ban literature that contains topics addressing the LGBTQ+ community or sex education.
In Louisiana, House Bill 777 would prohibit any public employee from spending funds with the American Library Association or face a fine of up to $1,000 and up to two years in prison. A separate Louisiana bill would subject librarians to penalties under the state's obscenity law. Librarians would face two to five years in prison and up to $10,000 in fines for "obscene" materials that involve unmarried minors. In West Virginia, House Bill 4654 would remove libraries' and librarians' current exemption to the state's obscenity laws. If the bill passes, librarians found to be in violation could face felony charges, fines up to $25,000, and up to five years in prison.
Shawnda Hines, a spokesperson for the American Library Association, said "[s]chool librarians are fearful about acquiring any book that might touch on sex or sexuality, including works that address gender identity, sexual orientation, or address abuse or sex ed – including award-winning literary works and nonfiction[.]" Hines suggests that school leaders support librarians and rely on their expertise. --- Isaiah C. Robinson
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"West Virginia becomes one of 10 other states in the country to enact the policy."
Why this is important: In March 2023, Governor Jim Justice signed the Campus Self-Defense Act into law. The law allows for a person, with a valid license, to carry a concealed gun on campus. The law prohibits concealed carry in some areas of West Virginia college campuses such as stadiums, daycare facilities, and individual offices, but allows a person to carry a concealed gun in other areas such as study halls and lounges.
With the law officially taking effect in July 2024, West Virginia University's Board of Governors has adopted rules to help implement the campus carry law on all of WVU's campuses. The new set of rules designates the President to maintain a website with resources about the campus carry law. This website will include maps of WVU's campuses where carrying a concealed pistol is permissible and prohibited, in addition to information on obtaining a concealed weapons permit. Any student or employee of the university who fails to abide by the rules is subject to disciplinary action. Any other person who fails to follow the university's rules will be asked to leave or relinquish the concealed gun or potentially face criminal action. --- Isaiah C. Robinson
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EEOC Adopts Final Rule on Pregnant Workers Fairness Act: What Employers Need to Know | |
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By Carrie H. Grundmann
On April 15, 2024, the EEOC published its Final Rule to implement the Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022. The Rule goes into effect on June 18, 2024, and will govern all employers with 15 or more employees.
The PWFA does not supplant or replace the protections provided by the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), but instead provides additional protections to employees with limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Specifically, the PWFA obligates an employer to accommodate such employee unless doing so will cause an undue hardship on the operation of the employer’s business. There is no need under the PWFA for the worker’s condition to qualify as a disability under the Americans with Disability Act (ADA).
There are several key takeaways from the Final Rule, including on the subjects of presumptively reasonable accommodations, the interactive process and informal triggers, and the breadth of covered conditions, among others.
Click here to read the entire article.
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DOL Raises Salary Requirements for Overtime Exemptions | |
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By Eric E. Kinder
The U.S. Department of Labor (DOL) announced on April 23, 2024 it will increase the minimum annual salary that is required to make certain white-collar employees eligible for overtime (often referred to as the executive, administrative, and professional exemptions from the Fair Labor Standard Act's overtime requirements). Starting July 1, the threshold will increase from $35,568 per year ($684 per week) to $43,888 (or $844 weekly), and it will increase again with the new year, to $58,656 (or $1,128 per week).
The DOL also said that it will issue a rule that will automatically update this threshold every three years using current wage data. That update is currently set to occur on July 1, 2027, but the DOL acknowledged that those updates may be postponed if the department chooses to engage in rulemaking to change its methodology or update mechanism.
Click here to read the entire article.
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