Today, the U.S. Department of Education (USDOE) published in the Federal Register the final rule implementing changes to the Clery Act under the Violence Against Women Reauthorization Act of 2013 (VAWA). In another recent USDOE development, the agency’s Office for Civil Rights (OCR) reported the resolution of a complaint alleging disparate treatment and harassment of a student based on gender identity and gender nonconformance.

Final VAWA Rule Published

Colleges and universities are subject to several new requirements under the VAWA rule, which goes into effect on July 1, 2015. In the interim, institutions are expected to make good faith efforts to comply with the regulations.

The final rule generally adopts the consensus language agreed to through the negotiated rulemaking process, including a provision permitting complainants and respondents to be accompanied by an adviser of their choice during institutional disciplinary proceedings. Some changes from the proposed rule include:

  • Removal of the proposed requirement to record as a new crime reports of stalking that occurs after official intervention
  • Making explicit the requirement to provide notice of how to file a disciplinary complaint and request protective measures in cases of dating violence, domestic violence, sexual assault, and stalking
  • Clarification that, in rare instances, institutions may remove reports of crimes that have been “unfounded,” and a new requirement to disclose in the Annual Security Report the number of “unfounded” crime reports

Title IX Transgender Complaint Resolved

Last week, OCR announced that it had resolved a complaint against the Downey Unified School District in California by a transgender student who alleged disparate treatment and harassment. The complaint underscores OCR’s interpretation of Title IX to prohibit discrimination against transgender students.

The resolution agreement requires the school district to ensure that its policies and procedures give transgender students an equal opportunity to participate in its programs and activities; provide staff training on gender-based discrimination; conduct a climate assessment on harassment/bullying of transgender students; provide the student with access to sex-designated facilities consistent with the student’s gender identity, such as restrooms and locker rooms; and permit participation in extracurricular activities consistent with the student’s gender identity.

As educational institutions across the country seek to provide gender-inclusive housing, restroom, and extracurricular opportunities for students, OCR reminds schools through this resolution letter and agreement that “harassment of students for failing to conform to stereotypical notions of masculinity and femininity constitutes sex discrimination.” Educational institutions are advised to review their Title IX and related policies to ensure that they adequately address discrimination based on gender identity.

Attorneys in Ballard Spahr’s Higher Education Group regularly advise educational institutions on compliance with Title IX, the Clery Act, Title VI, Section 504, the Americans with Disabilities Act, and the Age Discrimination Act. Please contact Olabisi “Bisi” Okubadejo at 410.528.5532 or with any questions.

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