Lawyers discuss Covid policies, Title IX

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As the Covid pandemic continues to linger, community college leaders must balance responsible public health practices with a patchwork of federal, state and local laws governing vaccine and mask mandates – while also grappling with the challenges that come with having those mandates instituted on campus.

A group of attorneys provided a framework for considering all of these issues during a roundtable discussion for community colleges this week at the annual Community College National Legislative Summit in Washington, D.C. Those at the table described the difficulty of safely navigating a return to campus, both in states that do and don’t have mandates in place.

Carolyn Pellegrini, an attorney who specializes in higher education, emphasized the importance of decision-makers knowing what laws and ordinances apply to their jurisdiction before deciding on a plan for in-person learning on campuses.

Tennessee and Montana, for example, have banned vaccine mandates for private employers, while five states require employers to accept religious or medical exemptions. Three other states require employers to have a mask or testing alternative to a vaccine mandate.

Exemptions, in particular, add another administrative layer to rolling out campus-wide vaccine mandates, given that institutions must have the capacity to make individualized but consistent decisions. Medical exemptions should be based on whether an individual had a severe or immediate allergic reaction after a previous dose of the Covid vaccine or a known allergy to a component of the vaccine. For religious exemptions, Pellegrini said institutions should consider the question, “Does the claimed belief system confront the same concerns, or serve the same purposes, as unquestioned and accepted religions?”

Institutions also have a responsibility to provide “reasonable” accommodations for a medical condition or religious belief that precludes an individual from following a vaccine or mask mandate. However, accommodations must not impose an undue burden or hardship on the institution, as defined by the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.

And, as important as it is to properly implement a vaccine or mask mandate, it’s just as important to enforce it, Pellegrini said.

“If you have [a mandate] on the books, but if you’re not enforcing it, then it doesn’t have any teeth,” she said.

Re-write for Title IX

The Biden administration has made clear that it plans to re-write the controversial Title IX regulations put into place under the Trump administration, with the U.S. Education Department (ED) announcing in December that a notice of proposed rulemaking can be expected by April. But while the 2020 rules will still apply until the formal regulatory process is complete, Pellegrini highlighted developments from the last year that have further defined colleges’ responsibilities when it comes to the law prohibiting gender and sex discrimination.

Last summer, the Office for Civil Rights released a notice clarifying that Title IX includes protection from discrimination based on sexual orientation and gender identity. It also released an extensive Q&A document on the 2020 regulations, providing greater detail about when and how institutions should respond to notices of sexual harassment.

Additionally, institutions should be aware of two recent court rulings in Title IX cases, according to Pellegrini.

In August, a federal district court vacated part of the 2020 regulations related to higher education institutions’ requirement to resolve formal complaints with a live hearing and cross-examination. Previously, the decision-maker in a formal complaint was prohibited from relying on party or witness statements if the individual did not submit to cross-examination. The court found that provision to be “arbitrary and capricious” and remanded it to ED for further consideration.

Last month, a federal appellate court ruled that Millersville University could be held liable for a sexual assault by a nonstudent guest after a student was murdered in her dorm room in 2015 by her boyfriend, who did not attend the university. Institutions are only liable in Title IX cases if they are “deliberately indifferent” to an assault, said Pellegrini – which is typically a high bar to establish. Millersville University’s potential liability stems from its failure to follow its own Title IX policy – that states it applies to non-students – and take corrective action after prior abuse was reported.

About the Author

Alexis Gravely
Alexis Gravely is a legislative analyst at the American Association of Community Colleges.