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Legislative Update


Wisconsin AG sues to block new USED Title IX regulations

by | Jun 12, 2020 | Federal Issue, Legislative Update Blog, State Issue

Last week, Wisconsin joined 17 other states and the District of Columbia in filing a complaint against an extensive set of new federal Title IX regulations issued in early May by the U.S. Department of Education (USED). These regulations are applicable to sexual harassment complaints by both school district students and employees and school districts will be required to revise their policies and procedures and ensure that administration and staff are trained on the new requirements.

Note: To assist school leaders the WASB has created a new Title IX resource page that can be found in the policy “hot topics” area of WASB’s website.  WASB will be adding content to the Title IX resource page throughout the summer as the August 14, 2020, effective date of the regulations approaches. 

In a news release, Wisconsin Attorney General Josh Kaul said the complaint is designed to stop new regulations from weakening protections for victims of sexual assault and harassment and block the creation of inequitable disciplinary proceedings — from kindergarten through college.

The news release goes on to state:

“In the complaint, the attorneys general assert that the Department of Education’s new rule reverses decades of effort to end the corrosive effects of sexual harassment on equal access to education, in violation of Title IX’s mandate to prevent and remedy sex discrimination. The new rule also conflicts with federal and state statutes and Supreme Court precedent.

“The rule will chill the reporting of sexual harassment, the complaint says, and make it harder for schools to reach fair outcomes as they investigate complaints.

“The attorneys general say the new Title IX rule will cause irreparable harm to primary, secondary, and postsecondary schools in Wisconsin and other states, and it will hinder schools’ ability to investigate and process sexual harassment complaints and it will directly harm the students those schools serve. Among other flaws, the department’s new regulations: 

  • Narrow the protections for students and others by redefining “sexual harassment” to exclude a broad spectrum of discriminatory conduct from Title IX’s reach, arbitrarily excluding incidents of sexual harassment based on where they occur, and limiting when schools can respond to serious sexual misconduct;
  • Require extensive and unnecessary new procedural requirements that will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students;
  • Force schools to dismiss any reports of sexual harassment that don’t rise to the new rule’s unreasonably high standard, requiring schools to create new rules and procedures to address Title IX harassment but use a different set of rules to address non-Title IX harassment. This will cause confusion, chill reporting, and make our schools less safe; and
  • Demand schools make significant changes by mid-August in the midst of the COVID-19 pandemic. This will require schools to bypass the mechanisms that allow students, parents, faculty, staff, and community members to help shape important school policies.” 

In addition to Wisconsin, the complaint was joined by the attorneys general of California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

Many K-12 school administrators would likely argue that one of the last things they needed as they wrestle with the effects of school closures and reopening planning in the wake of the COVID-19 pandemic was the added burden of dealing with a new set of complex regulations slated to take effect August 14, 2020.

 

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