Legal Update

August 1, 2023

What is in this Legal Update?

• New requirements regarding protecting students and staff from harassment and discrimination 
• Policies referencing attire at graduation ceremonies should be reviewed due to SB23-202
  
• Districts required to appoint youth representatives in their district review process
• CPR training in schools

New Requirements Regarding Protecting Students and Staff from Harassment and Discrimination 

Districts should be aware of various state and federal laws regarding harassment and discrimination that complicate policy development and compliance for the 2023-24 school year. There are two recently passed Colorado bills that impact school districts' non-discrimination policies for students and personnel. One of these bills requires a brand-new policy by July 1, 2024. However, the bills have unclear provisions and varying effective dates, and are subject to change because CASB and education law partners will work to modify them during the 2024 legislative session. Finally, new regulations on Title IX, which prohibits discrimination based on sex, are expected to be released by the United States Department of Education in October. This will further impact policy and procedures for districts.

• Overview of bills: Senate Bill 23-296 is focused on protections against harassment and discrimination for students, and Senate Bill 23-172 is focused on protections against discriminatory employment practices for personnel. 
  
  
• New Definition of Harassment and Discrimination in both bills: Both bills include a definition of harassment or discrimination that mirror each other: “to engage in unwelcome physical or verbal conduct... because of [a person's] membership in a protected class, and that the conduct or communication is objectively offensive to a reasonable individual who is a member of the same protected class.” The student-focused bill (SB23-296) bill includes further description of the definition of harassment or discrimination with examples. Advocacy efforts will likely focus on improving the clarity of this definition for both bills. 
  
  

• Procedures. Senate Bill 23-296 also makes changes to procedures when a student alleges they have been discriminated against or harassed. Reports must be accepted in writing, in person, by phone, email, or online form, and must be maintained for seven years. Schools must post notices with clear information about the policy throughout buildings. The bill adds accommodations and supportive measures for students that districts must provide, as well as training and reporting requirements. Additionally, schools must use the preponderance of the evidence standard during investigations, must provide regular written updates to parties, and must adopt other procedural rules regarding investigations. 

• New policy “Protecting Students from Harassment”: The new policy must be adopted before July 1, 2024 and must include, among other requirements: the new procedures required by the bill, ways to report harassment, the name and contact information for designated person who receives reports, helpline information, procedures on investigations and findings (must be fair, impartial, and prompt), prohibition against retaliation against a student who reports or participates, and other information.

• Legal Defense for Districts in Discrimination claims. Senate Bill 23-172, the personnel-focused act, allows a district to utilize a legal defense if their employee proves that a supervisor was discriminatory. The defense can be used if the district has a clearly communicated program that is designed to prevent harassment and protect employees. Districts should maintain detailed records of all discrimination, harassment, or retaliation complaints, and develop a program that provides staff information about anti-discrimination policies and procedures. 

• CASB encourages districts to develop a comprehensive anti-harassment program. This program could be included in existing policies, or in the new policy required by SB23-296. However, districts should keep in mind that certain portions of the bills could change during the legislative session, and CASB will update districts accordingly. Even though changes are likely, districts should begin the process soon by reviewing legislation, engaging their community, and considering the district's strengths and opportunities for improvement regarding protecting students and staff from harassment. 

• Nondisclosure provisions. SB23-172 also addresses nondisclosure provisions (NDAs), prohibiting employers from requiring employees to sign NDAs that limit their ability to disclose discriminatory or unfair employment practices, with some exceptions. Finally, it requires an employer to maintain personnel and employment records for at least five years, and have a designated place to store written or oral complaints of discriminatory or unfair employment practices.
  

• Title IX. Title IX is federal law that prohibits sex-based discrimination in educational programs and activities. The law addresses sexual harassment, sexual assault, and other forms of gender-based discrimination in educational institutions. Updates to Title IX rules are expected to be released by the U.S. Department of Education in October. These rules are split into two: one is a grievance procedure rule, which will alter the processes that schools must use for sexual harassment complaints. The other is a gender identity and athletics rule, which will create a new test for schools that wish to limit participation in athletics based on gender identity. The Department of Education originally planned to release the rules in May, but extended the date until October so they could have more time to review comments regarding the rules. Districts should be proactive regarding reviewing the proposed Title IX regulations and prepare for the rules when they do arrive, as they may require policy and procedure updates during the school year. 

To comply with the new bills, CASB’s Special Policy Update (SPU) has provided changes to AC, GBAA, and JBB*, addressing definition changes and other procedural aspects of the new bills that may be required before full development and implementation of the new policy. However, districts should expect future changes to these and other policies throughout the school year, and should consider seeking community input and attorney advice regarding discrimination and harassment in schools. 

Policies referencing attire at graduation ceremonies should be reviewed due to SB23-202 

SB23-202: Wearing of Native American Traditional Regalia was passed in the legislative session in 2023 and became effective on May 4, 2023. It requires school districts to allow qualifying students, who are either members of a tribe or of Native American descent, to wear traditional Native American regalia at a graduation ceremony. CASB’s most closely related sample policy, JICA: Student Dress Code, does not address a dress code for graduation ceremonies, only a general dress code. Because the bill does not have policy requirements, CASB does not have plans to update the sample policy, or create a new one, at this time. 

However, CASB is aware that some school districts may have established a  dress code policy for graduation ceremonies. Any policy should be reviewed prior to the district's next graduation ceremony to ensure compliance with SB23-202. 

Districts required to appoint youth representatives in their district review process

Due to the passage of SB23-008: Youth Involvement Education Standards Review, students are granted multiple opportunities to participate in the review of their district’s elementary and secondary education standards. Districts are already required to review their own standards by July 1, 2017 and every six years thereafter. SB23-008 now requires districts to appoint two student representatives to participate in their review process. If possible, one representative must be from an urban school district, and the other must be from a rural school district. These representatives, aged between 14 and 19, will be nominated by schools within the district’s jurisdiction, and the final selection will be made by the local education provider. If your district is reviewing your standards soon, ensure that a process is established to select student representatives to assist. 

CPR Training in Schools 

SB23-023 requires schools that participate in the Colorado comprehensive health education program to include a curriculum on Cardiopulmonary resuscitation (CPR) for grades 9 through 12. Because the program is optional, CASB did not update any sample policies. If your district participates, you should be be sure to review the CPR curriculum. If a school does not participate in the Colorado comprehensive health education program, they are “strongly encouraged” to provide the same curriculum for students in grades 9 through 12.  

 Member Legal Resources

As a reminder, the Member Legal Resources webpage, which features an index of CASB’s legal resources, is always available. These resources may still be located via the search tool.

CASB’s legal resources are for informational purposes only and do not constitute legal advice. Specific questions should be referred to the school district’s legal counsel.

 For Legal Update inquiries, please contact CASB’s Legal Team.