Last month, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 1, 2024.  These regulations require training and changes to school district policies and procedures regarding sexual harassment. Among the changes are:

Definitions
The new regulations more broadly define the conduct that may be investigated by a school district. Previously, the regulations contained a narrow definition of “sexual harassment.” Now, the regulations are using the term “sex-based harassment” to trigger obligations under Title IX. Sex-based harassment includes: (1) sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, gender identity and sexual orientation and other sex-based conduct; (2) quid pro quo requiring the participation of unwelcome sexual conduct; (3) a hostile environment that is subjectively and objectively offensive and is so severe or pervasive that it limits/denies a person’s ability to participate in/benefit from an educational program or activity; and (4) sexual assault (as defined by a federal uniform crime reporting system).

While school districts in Massachusetts have always been obligated to investigate and respond to allegations that fall under the term “sex-based harassment”, these changes now require that they be investigated pursuant to Title IX regulations and its investigation process. Moreover, the new regulations lower the standard to prove a hostile environment, changing from “severe and pervasive” to “severe or pervasive.”

Investigator Model
Previously, the Title IX regulations required that the Title IX Coordinator, investigator and decisionmaker roles all be fulfilled by separate individuals. The new regulations allow school districts to utilize a “single-investigator” model allowing the same individual to fulfill all of these roles. However, individuals involved in these roles must be trained and free of bias.

Supportive Measures for Special Education Students
If a student has either an individualized education program (“IEP”) or 504 plan and is involved with an investigation falling under Title IX, the Title IX Coordinator must consult with one or more members of the student’s Team to ensure compliance with the IEP/504 throughout the investigatory process.

Response to Allegations
Previously, “actual knowledge” of sexual harassment triggered a school district’s obligation under Title IX. Going forward, the new regulations have lowered this standard, so that a school district which has knowledge of conduct that reasonably may constitute sex discrimination in a program/activity must respond promptly and effectively with next steps.

Moreover, complaints no longer need be written and signed – if a request can be objectively understood as a request to investigate and make a determination as to whether sex discrimination occurred, the school district has an obligation to respond to the request.

Complaint and Investigation Process
Unlike the previous regulations which required complainants to be presently participating in a school district’s program or activity, now complainants may file complaints of sex-based harassment even if they have left the program.

Moreover, school districts are still required to have reasonably prompt timeframes for major stages of an investigation, but no longer need to follow specific timeframe requirements (i.e., 10 days for parties to inspect documents). Rather, parties are entitled to an equal opportunity to access evidence and respond.

Off-School Conduct
The prior regulations did not permit school districts to investigate, pursuant to Title IX, off-school conduct that was not school-sponsored or outside of the United States. The new regulations expand the type of off-school conduct that can be investigated pursuant to Title IX, obligating school districts to investigate sex-based hostile environment claims even when some of the conduct alleged to contribute to a hostile environment occurred outside of the school district’s programs or activities.

Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence. The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).

Pregnancy Protections
The Title IX regulations now require that school districts afford certain rights to pregnant students and employees. As to students, school districts must ensure that pregnant students are notified of how to contact the Title IX Coordinator, as well as receive information about reasonable modifications, potential leaves of absence, and available lactation spaces. As to employees, school districts must provide reasonable time and space for lactation purposes and may not take adverse action against an employee on the basis of sex as it relates to the employee’s parental, family or marital status, status as a family wage earner, or current, potential or past pregnancy or pregnancy-related conditions.

Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August 1^st and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding the new regulations, please contact any of our attorneys.

 

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

On March 15, 2024, the United States Supreme Court issued a unanimous decision in Lindke v. Freed, No. 22-611, which clarified when a state official can be held liable under the First Amendment for blocking someone from their personal social media account. 42 U.S.C. § 1983 provides a cause of action against any official who deprives someone of a constitutional right, including the First Amendment right to free speech, when the official is acting in their government role such that their acts are attributable to the state. In Lindke, the Supreme Court established a new, two-pronged test to determine when an official’s social media use is state action and, therefore, subject to a § 1983 claim.

The official implicated in Lindke, James Freed, is the city manager of Port Huron, Michigan. He ran a public Facebook page where he posted primarily about his personal life but also posted information related to his job, such as highlighting communications from other officials and soliciting feedback from the public on issues of public concern. Freed’s Facebook page was not clearly designated as being either personal or professional. When Freed posted about the COVID-19 pandemic, Kevin Lindke commented on his posts to express displeasure with the city’s approach to the pandemic. Freed blocked Lindke and deleted his comments. Lindke then sued Freed under 42 U.S.C. § 1983, alleging that Freed had violated his First Amendment rights. The District Court dismissed the case and the Sixth Circuit affirmed. After articulating the new standard, the Supreme Court remanded back to the Sixth Circuit. The Supreme Court also remanded a companion case, O’Connor-Ratcliff v. Garnier, No. 22-324, to the Ninth Circuit in light of the decision in Lindke.

Under the first prong of its test, the Court held that it is not enough that the official has “some authority to communicate with residents on behalf of” the local government. Instead, the “alleged censorship must be connected to speech on a matter within [the official]’s bailiwick.” The Court pointed out that “[t]he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the [governmental body] entrusted the official to do” [emphasis in original].

Moving to the second prong of the test, the Court held that “[f]or social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it.” Because Freed’s social media page “was not designated either ‘personal’ or ‘official,’” this “rais[ed] the prospect that it was ‘mixed use’—a place where he made some posts in his personal capacity and others in his capacity as city manager.” The Court ruled that “[c]ategorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations.”

The Court noted that:

“[h]ard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection.”

The Court therefore decided that:

“it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.”

Further complicating the analysis, the Court differentiated Freed’s “deletion” of the plaintiff’s comment from “blocking” him. It pointed out that “[s]o far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed” but, because “blocking operated on a page-wide basis,” the analysis must determine whether Freed “engaged in state action with respect to any post on which Lindke wished to comment” [emphasis added].

The Court summarized its complex analysis by stating the obvious consequence – “[a] public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

Lindke is important because it is the first time the Supreme Court has ruled on the social media activity of public officials. While the Court strove earnestly to balance the First Amendment rights of government officials using social media with the rights of those reading their posts,  officials should be cognizant of the Lindke test. The decision graphically illustrates the risks of using a personal social media account to post about government business and to delete or block comments.

If you have any questions about the content of this update or about implications for your social media usage, please contact us. We are pleased to assist public officials with all First Amendment issues.

This update is provided for informational purposes only and should not be considered legal advice.

Valerio Dominello & Hillman, LLC is pleased to announce that effective January 1, 2024, attorneys Jennifer King, Eric McKenna, and Ann Marie Noonan have become Equity Members in the firm.

                        
Jennifer King                        Eric McKenna                   Ann Marie Noonan

VDH recognizes the valuable contributions that each of these attorneys has made to our clients and to our firm.

Bios for each attorney are available on our website, or through the links below the photos above.