The United States Department of Education’s Office for Civil Rights (“OCR”) recently announced a new initiative to combat sexual assault in K-12 public school districts.  This new initiative is intended to enhance OCR’s enforcement of Title IX in public schools and strengthen the ability of public school districts to adequately respond to all incidents of sexual harassment and assault.  It also comes on the heels of an increased amount of K-12 sexual harassment and violence complaints filed with OCR. OCR received fifteen times more complaints this past year than it received a decade ago.

OCR’s initiative will include the following activities:

• Compliance Reviews: OCR will conduct nationwide compliance reviews in schools and districts, examining how sexual assault cases are handled under Title IX, including sexual incidents involving teachers and school staff. OCR will work with school districts to identify and correct compliance concerns.
• Public Awareness and Support: OCR will focus on raising awareness of the issue of sexual assault in K-12 schools, including making information available to educators, school leaders, parents and families.
• Data Quality Reviews: OCR will conduct Data Quality Reviews (“DQRs”) of the data on sexual assault/offenses submitted by school districts through the Civil Rights Data Collection (“CRDC”). As a part of conducting DQRs, OCR will partner with the National Center for Education Statistics (“NCES”) and will work with districts to ensure that incidents of sexual assault/sexual offenses are being accurately recorded and reported through the CRDC.
• Proposed CRDC Data Collection: OCR has proposed, for the 2019-2020 data collection, to collect more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel.  If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically by school.

We recommend reviewing District policies and procedures regarding Title IX and discrimination and harassment.  Our office is available to review and revise these policies and procedures, as well as to train District staff on complying with the provisions of Title IX.

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

Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2019 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising Stars.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  This selection process includes independent research, peer nominations and peer evaluations.  Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

On October 7, 2019, the Supreme Judicial Court addressed the inherent managerial authority of a public employer to take unilateral employment actions by examining the distinction between “broad” and “narrow” statutory authority in Board of Higher Education v. Commonwealth Employment Relations Board, SJC-12621. Specifically, the SJC held that a statute granting the state employer the right to “appoint, transfer, dismiss, promote and award tenure to all personnel” involved a broad statutory authority, and the employer was therefore required to bargain over the violation of a hiring cap in the parties’ CBA.

In this case, the Board of Higher Education (“BHE”) is the statutory employer of state college faculty members under M.G.L. c. 150E. The BHE and the faculty members’ union are parties to a CBA in which the parties had agreed to a “part-time” faculty hiring cap.  Despite this provision the state colleges continued to ignore it by hiring part-time faculty members in excess of the agreed-upon cap. The union filed a charge of prohibited practice with the Department of Labor Relations (“DLR”), arguing that the BHE failed to bargain in good faith and repudiated the provision. The BHE contended in response that this provision infringed on its nondelegable power under M.G.L. c. 15A, §22 to “appoint, transfer, dismiss, promote and award tenure to all personnel…” The DLR ruled for the union and the BHE appealed.

The SJC, citing City of Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 172 (1997), affirmed that the scope of a public employer’s nondelegable authority depends on “the explicitness of the statutory authorization under which [that] employer acts.” In City of Lynn, the Appeals Court had determined the scope of an employer’s managerial authority under M.G.L. c. 150E, §7(d) and held that public employers may act in two ways: under broad statutory authority or under narrow statutory authority.

When a public employer acts under broad, or general, statutory authority, the court examines “whether the ingredient of public policy in the issue subject to dispute is so comparatively heavy that collective bargaining, and even voluntary arbitration, on the subject is, as a matter of law, to be denied effect.” Unless public policy precludes bargaining. the employer’s decision is subject to a collective bargaining requirement.

On the other hand, if the employer acts under narrow statutory authority, or “under authority of a statute or law authorizing the employer to perform a specific, narrow function or, alternatively, acts with reference to a statute specific in purpose that would be undermined if the employer’s freedom of action were compromised by the collective bargaining process,” the court will not enforce a conflicting provision in the CBA. Rather, the statute or law takes precedence.

In the BHE case the SJC held that the statutory grant of management authority was broad and general as “nothing in the language of [the CBA] explicitly prohibits the BHE from bargaining over the hiring of part-time faculty.” Therefore, the SJC held that the CBA provision was enforceable as it does not directly conflict with the statutory grant of authority.

As always, application of this ruling will depend on the specific facts of the situation and the character of the specific authority being exercised. If you have any questions or concerns about this decision, or labor law in general, please contact any of our attorneys.

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