Student Rights & Title IX

First Circuit Holds that School Districts, Not Parents, Decide School Policy and Rejects “Parental Rights” Argument to Out Transgender and Non-Binary Students

Published on: February 20, 2025 | by Naomi Shatz

Since 2012, Massachusetts laws have prohibited discrimination based on gender identity, including in education. The Massachusetts Department of Education has had longstanding guidance in place instructing schools to use students’ preferred names and pronouns while at school. This week, in Foote v. Ludlow School Committee, the First Circuit Court of Appeals decided whether a school policy that followed this state law and DOE guidance violates parents’ constitutional right to direct the upbringing of their child. The school won. CONTINUE READING ›

Massachusetts Law Prohibits Schools from Complying with Anti-Trans Athlete Executive Order

Published on: February 8, 2025 | by Naomi Shatz

Youth sports are a huge part of the American education system, something many parents, schools, and communities place a high value on maintaining. Studies demonstrate the many mental, social, emotional, and physical benefits children derive from participating in organized athletics. In fact, during Trump’s previous presidency the President’s Council on Sports, Fitness, and Nutrition Science Board published a pamphlet noting that “Research shows that participating in youth sports can lead to immediate and long-term benefits for youth, their families, and communities.” By executive order and federal agency guidance, President Trump is now trying to deny those benefits to trans girls and women who want to participate in sports with the rest of their peers. The Massachusetts Declaration of Rights, Title IX, and Massachusetts anti-discrimination statutes prohibit schools, colleges, universities, and athletic organizations from following the new executive order. CONTINUE READING ›

What is the Current Status of Title IX and its Enforcement?

Published on: February 4, 2025 | by Naomi Shatz and Niamh Gibbons

In the last month, actions by the courts, the President, and Congress have significantly impacted and may further change how Title IX is enforced across the country.

Title IX: Background and Enforcement

Title IX is a federal law prohibiting sex discrimination in education. It is one of the shortest laws on the books, with the operative provision stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Laws like this can be enforced in two ways: through the courts and through administrative agencies. Individuals have a right to bring lawsuits under Title IX in court, where it is the job of the court to interpret what the law means. In addition, federal agencies has enforcement powers to investigate and address violations of federal law. For Title IX, that agency enforcement power rests with the U.S. Department of Education and the U.S. Department of Justice. People whose right to be free from discrimination in education have been violated can file complaints with those agencies, which can then investigate the educational institutions and impose corrective action, including the withholding of federal funds. The U.S. Department of Education issues regulations interpreting the laws it enforces and explaining how it will apply those laws when it engages in enforcement action. In 2020 the first Trump administration issued regulations overhauling Title IX enforcement; in 2024 the Biden administration issued a new set of regulations that was immediately challenged in federal courts in various red states. CONTINUE READING ›

Legal Challenges to New Title IX Regulations Continue—With One Snag

Published on: July 31, 2024 | by Tom Miller

The Biden administration’s new Title IX regulations were scheduled to go into force on August 1 of this year, but have already come under legal attack. We’ve previously covered two successful legal challenges that enjoined the enforcement of the new regulations in certain states. This week, however, other opponents of the regulations—including the states of Alabama, Florida, Georgia, and South Caroline, joined by several private advocacy groups—encountered a setback when a federal judge in the Northern District of Alabama (appointed by President Trump) denied their request for a preliminary injunction. The next day, another Trump-appointed federal district judge in Oklahoma granted a preliminary injunction in a challenge brought by that state. CONTINUE READING ›

Legal Challenges to New Title IX Regulations Begin, Blocking Legal Protections for Gender Identity in Education

Published on: July 1, 2024 | by Tom Miller

Title IX, passed by Congress over fifty years ago as part of the Educational Amendments of 1972, begins with a deceptively simple sentence: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Since 1972, the law has been interpreted by the courts, by the Department of Education (the agency charged with implementing the law), and the Department of Justice (responsible for Title IX enforcement in federal agencies). This April, the Biden administration finalized a long-awaited set of new regulations, which will replace those put in place in 2020 under President Trump. Among other provisions, the new regulations radically change the procedures for reporting and adjudicating allegations of sexual misconduct at colleges and universities. The new regulations also make clear that the term “sex” as used in Title IX includes sexual orientation and gender identity. Before the Biden regulations go into force in August, however, they are already coming under legal attack. In June, two federal district courts, one in Kentucky and one in Louisiana, issued preliminary injunctions blocking the enforcement of the new regulations in ten states: Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia.

The plaintiffs included the affected states, plus an association of Christian teachers and a female student-athlete in the Kentucky case, and a group of local public schools boards in the Louisiana case. They primarily challenged the new regulations’ inclusion of discrimination based on gender identity within the ambit of discrimination “on the basis of sex,” with a view to its effects on primary and secondary education. Following the pattern of recent conservative attacks on trans and non-binary people, the plaintiffs objected to how the inclusion of gender identity would require public schools to allow students to use bathrooms and to play on sports teams associated with their gender identity, as well as potentially mandating that teachers and classmates use the pronouns used by a student themselves.

First Circuit Upholds Dress Code Prohibiting “There are Only Two Genders” Shirt

Published on: June 10, 2024 | by Naomi Shatz

Yesterday, the First Circuit issued its decision in L.M. v. Middleborough et al., a case we discussed previously on this blog. The case concerned whether a public middle school could prohibit a student from wearing a t-shirt that said “There are only two genders.” The district court had held that the school could, relying on the seminal case of Tinker v. DeMoines Independent Community School District. CONTINUE READING ›

First Circuit Hears Oral Argument in “There are Only Two Genders” T-Shirt Case

Published on: February 28, 2024 | by Naomi Shatz

Two weeks ago the First Circuit heard oral argument in a case that touches on some of the most hot-button issues in education law: student speech rights and discrimination against LGBTQ students. In L.M. v. Town of Middleborough, the Court must decide whether the Middleborough public schools could tell a student he was not allowed to wear a t-shirt that says: “There are only two genders.”

The case started in March 2023, when seventh grader L.M. wore a shirt to school that said “there are only two genders.” L.M. made this political statement against a backdrop – according to the school—of repeated concerns at the school about bullying of LGBTQ students and several students at the school contemplating or attempting to die by suicide, including students who attributed those actions to anti-LGBTQ experiences at the school. After receiving complaints from students and staff, the principal told L.M. he had to take the shirt off if he wanted to go back to class. L.M. declined, and his parents picked him up and took him home for the rest of the day. L.M. was not disciplined for wearing the shirt and wore other shirts with various political messages with no incident. In May 2023 L.M. wore the shirt to school again—this time with a piece of tape that read “censored” covering the words “only two.” L.M. was sent to the principal during his first class and removed the shirt rather than be excluded from school for the rest of the day.

The District Court Case

Massachusetts Court Overturns Expulsion of Harvard Student on Contract and Basic Fairness Grounds

Published on: January 4, 2024 | by David Russcol

A recent decision against Harvard University in favor of a student accused of sexual assault demonstrates a viable path to challenging student discipline decisions. As we have discussed previously, courts are wary of interfering with academic decisions of universities, but have been willing to hold schools accountable for failing to follow their own established policies in student disciplinary processes. Where a student handbook or other policy promises certain protections, courts will defend the reasonable expectations of students who encounter a process significantly less fair than what the university agreed to provide. These principles came into play in the “Dr. Doe” case, recently decided by the Massachusetts Superior Court.

Title IX, Criminal Law and Civil Remedies: How to Approach Concurrent Proceedings

Published on: December 8, 2023 | by Naomi Shatz

We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases.

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal.

What Legal Protections do Graduate Students have Against Discrimination?

Published on: October 24, 2023 | by Niamh Gibbons

We frequently represent graduate students who have experienced discrimination or harassment in their programs, something that studies have indicated is unfortunately common. The unique status of graduate students within universities affects what legal protections for discrimination apply to them. Graduate students often hold multiple roles simultaneously – student, research assistant or teaching assistant, advisee, and mentee. Their success as early-career researchers is uniquely tied to their relationships with faculty mentors and others in their discipline, meaning they may be less likely to report discrimination. But when it comes to asserting legal claims, the key issue is how their mixed status as student and employee affects what claims they can pursue.

Relevant anti-discrimination statutes

For graduate students who also carry out paid work, there are overlapping protections from discrimination under federal and state law. Various provisions of the Civil Rights Act of 1964 prohibit discrimination in educational programs and institutions, including Title IX (sex) and Title VI (race, color, and national origin). Title VII of the Civil Rights Act and the Massachusetts anti-discrimination statute, Massachusetts General Laws Chapter 151B, bar discrimination in employment. And the federal Americans with Disabilities Act (ADA) prohibits disability-based discrimination in both employment and education. Outside Massachusetts, the anti-discrimination laws of other states protect students and employees as well, often providing stronger protections than federal law.