The Law & Education

Latest Episodes:

Episode 33: Putting Policy Into Practice Informational Oct 01, 2020

Show notes

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

Episode 32: Hiring Externally for the roles of key Title IX officials with Elizabeth H. Canning/Putting Policy Into Practice Series Sep 17, 2020

Show notes

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]

Prevention is an Olive Tree — Update on the New Title IX Regulations with Joe Storch Jul 30, 2020

Show notes

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

Informational Episode: What will implementation of the new regulations look like? Jul 23, 2020

Show notes

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.

Episode 29: Litigation Against the New Title IX Regulations with Jake Sapp Part 2 Jul 02, 2020

Show notes

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

Episode 28: Legal Challenges to the New Title IX Regulations with Jake Sapp Part 1 Jun 25, 2020

Show notes

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

Episode 27 - Implications of Title IX Regulations for K-12 and Higher Education with Melissa Carleton Jun 04, 2020

Show notes

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

Episode 26 - Reactions to the New Title IX Regulations with Joe Storch May 14, 2020

Show notes

We are living through unprecedented times both nationally and globally. For those in the Title IX profession, these complicated times have been further exacerbated with the release of the new Title IX Regulations by the Department of Education on May 6, 2020. Today on the show Courtney is joined by Joseph Storch, a name well-known to most in the field. Courtney and Joe discuss the new regulations and their impact on institutions and school districts.

To say that they have caused a stir would be putting it very lightly! Joe is a regular contributor through NACUA and the wealth of knowledge he brings to the table is indispensable. He offers his first impressions on the regulations and their preable, and the foremost of these is related to the document's length! With the official implementation date of these new regulations looming, two-thousand plus pages to get through is a sizable read, especially considering what is required after the document has been read. Part of what Joe talks about is the efforts he has made to work collaboratively in response to these regulations, in order to help all institutions keep abreast.

During such a difficult time where almost everyone has been affected by the pandemic in myriad ways, the fact that these new steps have added another layer of pressure is quite astounding. Join us today to hear Joe's thoughts on the new laws, how we might approach digesting and reacting to them, and some of the responses that have already begun to surface!

Key Points From This Episode:

Joe's first impressions of the newly published regulations and their apparent implications.
The significance of the new regulations and the meaning of the preamble.
Advice for Title IX professionals in the face of the current climate.
The institutional implications of the dates laid out in the new regulations.
Delays in the publishing of these regulations and the pressure this puts on colleges.
The actual changes that have been instituted by the new regulations.
Better access to the new regulation through a collaborative effort in processing it.
The amazing contributions that have been made to the SUNY Joint Collaboration
Distance-university and the learning environments that are the current norm.
Potential challenges for the new regulations and organizations planning to litigate.
The continued mission of guidance and resource creation for Title IX compliance.
Joe's short-lived run in a political office!

Tweetables:

"It's one thing for a naturally occurring emergency, it's another thing for a manufactured emergency." — @JosephStorchNY [0:26:07]

"The department has significantly narrowed the definition of what is in fact sexual harassment, unequal treatment on the basis of sex, under Title IX." — @JosephStorchNY [0:29:10]

"Who knew, when we were having these conversations in January that this is what May would look like." — @ICSLawyer [0:14:43]

"There may be more things that we know a week from now that can help folks in making their policy decisions." — @JosephStorchNY [0:43:09]

Links Mentioned in Today's Episode:

ICS Lawyer

Joint Collaboration on the Title IX Regulations - be sure to check daily for updates!

Joe Storch

Joe Storch on Twitter

Nacua

Harry Potter

Courtney Bullard on Twitter

Courtney Bullard Email

Episode 25: Are the New Title IX Regulations Imminent And What It Means with John Graff and Scott Schneider Apr 30, 2020

Show notes

Today we're flipping the script to bring you an interview where your host Courtney Bullard features as a guest on the Higher Ground podcast with John Graff. In this episode, Courtney, John, and Scott Schneider discuss COVID-19, the NPRM and its implications, and more. These two men are respected colleagues in the industry; some might recall Scott being a former guest on the show. Scott is a well-known litigator, as well as a sought-after advisor on Title IX, labor and employment law issues, and risk management concerns related to student affairs. He has led several investigations of serial sex abuse allegations, allegations of misconduct involving senior leadership and other acts of institutional misconduct. Their discussion today involves weighing up the pros and cons of rolling out the new Title IX regulations in the current COVID environment, why it might not be worth postponing, and what these new regulations will mean for educational institutions and students. A big concern is that the suggested policies will discourage schools from conducting hearing processes, which in turn will deter students from reporting incidents. On the positive side, the new policies might lead to an increase in informal resolution type processes, although this comes with its own set of risks. Be sure to join the conversation to learn everything there is to know about the current status of new Title IX regs!

Key Points From This Episode:

The rumors about the Title IX regulation changes and the compliance deadline.
Hear how several state attorneys general are filing lawsuits against the DoED.
An explanation of what it means when an injunction motion is filed against an institution.
Courtney's thoughts on whether higher ed would like to see the current regulations blocked.
The pros and cons of implementing the new regs now versus postponing compliance.
Find out what it was like for Scott to sit in live hearings for small private schools.
The inevitable mistakes involved in implementing new regulations and how it affects students.
How the outcome for role players is directly tied to the level of experience of investigators.
Concerns about the time it takes to train higher ed to handle hearings each time changes are introduced.
How the new policies discourage schools from conducting hearing processes and what it means for victims.
Why it is likely that we will see a significant upsurge in informal resolution type processes.
The difficulty of parents and students accurately evaluating the outcome of a Title IX hearing.
Courtney's thoughts on the triaging of Title IX cases in the current remote pandemic model.
Is it possible to deliver on the promises for support made in the annual security reports?
Factors to consider when thinking about reopening schools and campuses.
Other concerns that clients are raising in terms of the new regulations.

Tweetables:

"It would basically be a collection of states getting together, going to a court and saying, 'Block enforcement of these regulations.'"— @EdLawDude [0:10:42]

"I think the general census, at least from my clients, would be not to have to add something else. On the flip side, I also think there are a lot of folks—especially like myself—that's just like, 'Let's just get on with it.' If we are going to have to comply and this is going to happen, then let's just do so that we can move on with our lives." — @ICSLawyer [0:11:10]

"Assuming that the final regs are what we suspect the final regs would be, I would think the net impact of that is going to be students no longer wanting to come forward and participating in the process and maybe not even coming forward at all, which would be a tragedy." — @EdLawDude [0:22:21]

"That's why I'm almost hoping the regs drop sooner rather than later. Give people as much time as humanly possible to start transitioning to whatever the final regs are going to say." — @EdLawDude [0:34:47]

Links Mentioned in Today's Episode:

Higher Ground Podcast

John Graff on Twitter

Scott Schneider

Scott Schneider on Twitter

Scott Schneider Number

Courtney Bullard on Twitter

Courtney Bullard Email

Courtney Bullard Number

The Chronicle of Higher Education

Episode 24: A Clearer Understanding of Title IX in the School System with Megan Farrell Apr 23, 2020

Show notes

During this time of so much change and uncertainty, we are so glad to be able to continue to bring you important information regarding Title IX and the future of institutional practices on campuses and beyond! Our guest today is Megan Farrell, Title IX Coordinator for Palo Alto Unified School District, and advisor and consultant to educational and institutional clients with a focus on Title IX compliance. Title IX Compliance for K-12 is complex and looks different than compliance for higher education in many ways. In our conversation we cover a lot of ground, looking at the unique aspects of K-12 compliance as well as considering the particular situation in which we find ourselves now, with remote learning and homeschooling.

We get into the special considerations and issues in K-12 Title IX compliance including the position of school resource officers, training for coordinators and school administrators, and how to educate students on these issues in appropriate ways. There is guaranteed to be something in here for everyone, so make sure to listen in and catch it all!

Key Points from this Episode:

The applicability of Title IX to school districts.
Misunderstandings around the Title IX coordinator's role in the school setting.
Basic steps for the structuring of these roles; clear naming and responsibilities.
Lessons learned from an OCR investigation in the school district space; interim measures, data retention and more.
Support measures after a complaint and dealing with issues in the same home.
Complications around the involvement of school resource officers.
Issues of notice and discrepancies in complaints by different parties.
New guidance by OCR and Megan's thoughts on the latest developments.
The training side of Title IX; educating students about consent.
Benefits of early instillation of values of consent with minors.
Remaining compliant with Title IX under the uncertain and transitional nature of the COVID-19 pandemic.
Preparation and early measures for next year; thoughtful and appropriate use of quarantine.
Megan's passion for travel and her two favorite destinations!

Tweetables:

"The school sites are going to be your first step in conducting an investigation." — Megan Farrell [0:09:19]

"I think immediacy is very important." — Megan Farrell [0:23:26]

"Our policy still says that we will complete investigations within 60 days and we really stick to that and we try and get it done even quicker." — Megan Farrell [0:26:05]

Links Mentioned in Today's Episode:

ICS Lawyer

Megan Farrell

Palo Alto Unified School District

Title IX University

Courtney Bullard on Twitter

Courtney Bullard Email