School board mulls over nondiscrimination policies
By Steve Van Kooten
The Prairie du Chien Board of Education called a special board meeting on August 28 to review and act on three Neola policies, all of which were adopted by the board for the first reading in July but were tabled during the second reading in early August.
Two of the policies modified Title IX procedures and parameters for discrimination on the basis of sex, and the third policy modified student retention and promotion within the district.
In attendance were board members Lonnie Achenbach, Michael Higgins, Jr., Nick Gilberts, Dustin Brewer, Noah White and Lacie Anthony. District Administrator Andy Banasik, Business Official Vicki Waller and the district’s principals were also present for the meeting. Board member Jim Hackett was absent for the meeting.
Higgins, Jr. requested Bob Butler, an association executive director and staff counsel for the Wisconsin Association of School Boards, appear at the meeting to provide legal guidance on the non-discrimination policies.
“Historically, when someone has thought of Title IX over the past 50 years, they have thought of athletics,” said Butler.
When Title IX passed in the mid-1970’s, it mandated equality between men’s and women’s sports; however, the U.S. Department of Education (DOE) has expanded federal regulations for public schools over the years, which now affect programming and legal procedures.
The nondiscrimination policies on the basis of sex modify earlier regulations put in place in 2020, which defined a regulatory process for sexual discrimination claims within the school district, both for staff and students. The new policies, which took effect on August 1 of this year, are federally mandated for public school districts.
The 2024 changes altered two aspects of the previous policies: it updated the definition of what “sex” means and adjusted the investigation process for sexual discrimination/harassment claims.
The 2020 policy did not explicitly define what “sex” meant, and while sexual orientation has been protected by other state and federal laws for “many years,” gender identity and non-conformity were not included.
Butler said the previous regulations only referred to “unlawful discrimination on the basis of sex.”
“The 2020 policies did not explain what the word means,” he said.
The new policies include orientation, gender identity and gender non-conformity under the definition of the word sex. According to Banasik, it also covers conditions like pregnancy.
The new policies also revise the grievance and governance procedure requirements for school districts. In the 2020 policy, the superintendent or equivocal position could not handle Title IX appeals, but the new policies allow the district administrator to handle that process.
The district has designated high school principal Doug Morris as the Title IX coordinator and Laura Stuckey as the deputy. Banasik will handle the appeals process.
“Prior to 2020, the process to handle sexual harassment complaints was not as well defined in the federal regulations,” said Butler. He added that the 2020 policies forced districts to “recalibrate” these processes; however, some advocacy groups claim the changes favored respondents in the claims process, placing too much burden on complainants to prove discrimination happened.
“What I saw in practice was that there were times where students were accused of sexual harassment, and they were rightfully exonerated because the facts didn’t support it,” said Butler. “There were also ones where students were accused, and the facts supported some discipline but not sexual harassment under federal law.”
According to Butler, the changes created a lower threshold for what could be considered sexual harassment. It also increases the school district’s burden to determine whether the violation took place and whether it was “unlawful.”
“In prior regulations, a one-off comment wouldn’t have been sexual harassment absent of any other facts,” he said. “In the new regulations, it is possible that it could be. It’s a lower standard than what we had in the 2020 regulations.”
“There was one part [of the policy] where we understood part of Title IX was that the district was responsible for anything that happened on or off the school grounds or during or not during school time,” Higgins, Jr. asked.
“It still has to have some connection back to the school,” answered Butler.
Butler added that the district may have to investigate incidents that “spill over” to school functions or activities, including incidents that happened at school functions outside of school property, like field trips or extracurricular activities.
Litigation
The policies are a national issue that has attracted multiple court cases in federal district courts and in the U.S. Supreme Court. Cases are still in process in Texas, Indiana and Kansas, among other states.
“In some respects, the new regulations plow some new ground in the regulatory realm, but they don’t exist in a vacuum,” Butler said. “So, those court decisions are there.”
According to Butler, the Kansas court case is the only one that directly affects Wisconsin at the moment. In that case, three private advocacy groups alleged that the DOE overstepped their authority by defining the word sex. The groups also claimed the policies would cause harm to students’ rights to free speech, especially in terms of their religious beliefs.
The Kansas court ruled that school districts that host children of members of these groups do not have to follow the regulations for the moment.
“At the present time, your district is not on the list; however, that list is not static,” said Butler. “It is possible that your district could be added — in full or in part — to that list in the future.”
Prairie is expected to pass a policy that conforms to the DOE’s new regulations, which will handle sexual discrimination incidents that occurred on or after Aug. 1, 2024. For incidents prior to that date, the district will follow a policy that conforms to the 2020 regulations.
Butler said the district has a few choices: either adopt policies that explicitly comply with the regulations, adopt policies that generally comply with the regulations or forgo any new regulation policies.
The district cannot change the new definition of “sex,” but schools can add provisions to protect student free speech in certain instances. Districts can also choose whether to include the Title IX definition in the district policy or reduce the policy to take action against “unlawful sexual discrimination” without specifically defining the word.
“Either one of these options is legally defensible,” said Butler. “It’s a choice whether to spell it out or not.”
If the district does not adopt a policy, it could open the school to litigation and procedural disputes. Legal action could result from a complainant and respondent disputing which regulations should be followed when the school district does not define a policy.
The Office of Human Rights can demand the district approve a policy and has the ability to withhold federal funding from the district. Butler said that the OHR has not withheld funding from a school district for policy non-compliance since Title IX was passed in 1976, but it’s still a risk the district will take if they don’t adopt a policy.
Morris said that the district has had zero Title IX complaints in the last two years.
Bathrooms
Bathroom usage is a flashpoint in the national conversation on gender identity and sexual discrimination, with heavy legal ramifications for schools.
According to Butler, the policies do not necessarily allow a student to come to school on any given day and declare that they will use a different bathroom. While advocacy groups may argue that a student should be able to do that, the district has a legal precedent to fall back on.
“Kids can’t just randomly decide which bathroom to go in,” he said.
Two school districts in Wisconsin have gone to court after they refused to allow a student access to the opposite biological sex’s bathroom; however, in those cases, the students had parental support, medical documentation that supported their claims and other evidence that proved their request was not a spur of the moment decision, according to Butler.
He suggested the district bring in the parents —unless a claim of abuse or neglect is present — and have an “interactive process” when a student makes a bathroom request.
“I think it is problematic to accommodate a student and not tell the parents,” he said.
The board acknowledged that the decision to allow students with alternative gender identity or sexual non-conformity to use a different bathroom is a controversial one, but Butler told them, “Right now, it’s the law, provided some facts are present.”
Recommendation
Butler recommended the district adopt a policy that used the less specific wording, restricting the policy to the “unlawful” terminology because Title IX “clearly” prohibits it, and that is unlikely to change due to any court decision.
The board approved a revision to the policy that conforms with Butler’s recommendation and placed it on the next school board meeting agenda for action. The next regular school board meeting will take place on September 9.
Personnel approvals
Lareena Riebe moved from food services to Bluff View as a teacher’s aide, Madeline LaRocque moved from BA Kennedy to Bluff View as a teacher’s aide and Heather Decot Achenbach was brought in as a Bluff View teacher’s aide.
Resignations
Carter Steger (6th grade ELA teacher) and Shannon Sprosty (BA Kennedy teacher’s aide) resigned from their positions.
Other business
• The board approved the second reading of the student retention and promotion policy.
