BCS grapples with fallout from federal litigation around sex discrimination regulations

Due to a lawsuit backed by three far-right groups, including Moms for Liberty, local school districts are scrambling to draft policies that comply with a shifting federal legal landscape over what constitutes sexual harassment and discrimination.

At its meeting Sept. 5, the Buncombe County Board of Education unanimously (7-0) passed interim policies that broaden the school district’s interpretation of what constitutes a complaint as defined by Title IX, a federal law passed in 1972 that bars sex discrimination in education.

The district’s new policies make several small changes to two existing Title IX policies, which were last amended in 2020, when federal law changed to specifically address sexual harassment. Under Buncombe County Schools’ current interim policies, anything that constitutes sex discrimination, not just sexual harassment, will trigger a Title IX procedural response.

“What we are adopting here is a process just handling complaints, complaints by one student against another or against an employee,” said board attorney Dean Shatley.

Shatley noted that not all sex discrimination is harassment, but all harassment is discrimination. For example, if a student complains that a math teacher is unjustly giving all the boy students better grades than girl students, that would constitute discrimination on the basis of sex, Shatley said. But it is not sexual harassment. Under the new policies, sex discrimination would trigger the same Title IX-mandated procedure that sexual harassment requires under 2020 federal regulations.

However, the interim policies aren’t in total compliance with 2024 federal regulations because of the shifting legal landscape.

“We wanted to create a way for our school system to have one way to process these complaints. If we were going to adopt a policy that was in total compliance with 2024 regulations, it would look different. We are basing this all on the 2020 policy,” Shatley said.

After the Biden Administration’s Department of Education released updated regulations surrounding Title IX in April, a trio of far-right organizations — Moms for Liberty, Young America’s Foundation and Female Athletes United — joined four states in suing the department over the rules. According to AP, the 2024 rules would expand Title IX civil rights protections to LGBTQ+ students, expand the definitions of sexual harassment at schools and colleges, and add safeguards to victims.

A Kansas judge filed an injunction blocking the regulations’ implementation in July, pending a full trial. The rules were scheduled to go into effect Aug. 1. The injunction, upheld by the U.S. Supreme Court in August, impacts all states involved in the lawsuit as well as any schools outside these states that have students whose parents are directly involved in the ongoing litigation.

Multiple lists have been released by the Kansas court, and as of Aug. 28, more than 30 BCS schools and six Asheville City schools were included in the list.

Asheville City Schools (ACS) spokesperson Kim Dechant told Xpress Sept. 6 that ACS is still working through the implications with its attorney and currently has no comment on the matter.

At the Sept. 5 BCS meeting, more than a dozen community members came to speak out against passing updated policies related to the new Title IX regulations.

Kim Poteat, chair of Buncombe County’s Moms for Liberty branch, expressed fear that if the interim policies reflected the “radicalized Title IX regulations,” BCS may begin to “allow biological males in our daughters’ restrooms, locker rooms and hotel rooms on overnight field trips,” she said.

“Will students and staff be charged with sex-based harassment claims for not using preferred names and pronouns, regardless of religious or personal belief, because of the new definition of sexual harassment?” she asked.

Shatley, in comments later in the meeting, assured Poteat and others that the policies had nothing to do with the issues she raised, which were referenced in the lawsuit that resulted in the recent injunction.

Shatley said the policy only changed procedure — widening what would constitute a Title IX-defined response to include sex discrimination, for example — and wouldn’t change how the district approaches disagreements between students and staff over the use of pronouns, participation in athletics or who uses what locker room.

Existing, unrelated district policy requires that a “transgender student may not be required to use a facility that conflicts with the student’s gender identity consistently asserted at school.” Additionally, the policy asserts: “The individual student is the best person to determine their own identity. School staff should be sensitive to, and use, the terminology that supports and respects the wishes of the individual child. Under North Carolina law, schools must inform a student’s parent(s) prior to any changes in the name or pronoun used for a student in school records or by school personnel.”

Other speakers, such as Jim Fulton, who is running for a seat on the school board in November against current vice chair Amy Churchill, expressed concern with the speed at which the board was pushing through these policies.

The board waived its typical process of holding two public readings on any policy change in order to pass the interim policies on first reading without a vote from its policy committee.

“Many of these decisions were made basically without adequate public discussion and outside your typical procedure, by waiving the first reading before policy changes. When decisions seem predetermined and public debate is minimized, it fosters a sense of distrust. I’m not alone in perceiving a lack of transparency,” he said.

Board member Rob Elliot, who serves as chair of the policy committee, said the board elected to hear these policies immediately because of the unique nature of conflicting guidance on Title IX from the Department of Education and the injunction that affects some but not all of BCS schools. With the school year already underway, the board felt it was important to get updated policies on the books to guide administrators, he said. The interim tag reflects the expectation that the district will have to again review the policies as federal regulations shift with expected appeals from the education department and results of the pending court case in Kansas.

“We’re being extremely careful with this policy,” Elliot said. “I really do believe this was a really smart way to go. It protects free speech of students and staff. It will still protect LGBTQ students and staff.”

Other changes in the 2024 regulations, according to Shatley, include redefining a “hostile act” for the purposes of sexual harassment from being “severe or pervasive” to “severe and pervasive.” Additionally, the definition of sex in the regulations is expanded to include pregnancy and postpartum women and girls, similar to recent changes made in federal Title VII regulations about workplace discrimination. These current regulations are not included in BCS’ interim policies.

Different from the 2020 rules, Buncombe’s current policies also reflect that coverage of discrimination now includes school trips overseas or any situation in which the school system has “substantial control over the harasser or the context in which the harassment occurred.”

Digital library access blocked for students

About ten community members expressed concern to the school board Sept. 5 that access to a digital library containing thousands of books was being taken away.

Jennifer Reed, associate superintendent of curriculum and instruction, told Xpress after the meeting that the free web-based resource would still be available for teachers to use in their curriculum, but the district decided to limit students’ access to the Epic! digital library, which is geared toward elementary-aged students, because of the program’s lack of a filter.

The district will reconsider if and when the company updates its filtering mechanism, she said.