Special Policy Update

• Prevent Harassment and Discrimination in Schools
• Title IX regulation changes
• What to do with an SPU?
• SPU Webinar Explanation

To access the sample policies distributed with this Special Policy Update, click here..

Prevent Harassment and Discrimination in Schools

In 2023, the Colorado General Assembly passed Senate Bill 23-296, “Prevent Harassment and Discrimination in Schools.” The Act provides additional requirements for complaints that would fall under Title IX, and lowers the standard of how severe conduct must be in order to constitute harassment. Federal laws require harassment to be “severe or pervasive,” before it is considered to create a hostile environment that constitutes discrimination. The Act lowers the standard in Colorado, meaning that a single incident is more likely to constitute harassment or discrimination.

The Act requires school districts to adopt a policy that includes information on reporting options for students, an explanation of the school’s role in responding to reports, information about resources for victims, and information about available accommodations and supportive measures offered by the school. The policy must be made available annually to students, students’ parents and legal guardians, and district employees.

The Act also requires training to school staff about harassment and discrimination, which should include training about the school’s policy. Schools are also required to report information about harassment or discrimination to school districts, who will then report the information to the Colorado Department of Education.

In 2023, the Colorado legislature also approved Senate Bill 23-172: “Protecting Opportunities and Workers’ Rights (POWR) Act,” which became effective August 7, 2023. It makes a variety of changes to workplace employment practices. It adds protections from discriminatory or unfair employment practices for individuals based on their “marital status.” Additionally, the Act adds a new definition of “harass” or “harassment” in the employee context, which is different from SB23-296’s definition that applies to students. The Act also specifies that in harassment claims, the alleged conduct does not need to be severe or pervasive to constitute a discriminatory or unfair employment practice, which provides more protections for workers than under federal law.

The Act also prohibits nondisclosure agreements (NDAs) between an employer and employee that limit the ability of the employee 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.

Other resources

• Prevent Harassment and Discrimination in Schools | General Assembly
• Protecting Opportunities and Workers’ Rights Act | General Assembly
• May 7, 2024 OCR Dear Colleague Letter: Protecting Students from Discrimination, such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics
• November 7, 2023 OCR Dear Colleague Letter: Shared Ancestry
• CASB Resource: Protecting Opportunities and Workers’ Rights Act (POWR) Frequently Asked Questions
• CASB Resource: Guide to Harassment and Discrimination Protections and Policy Changes

Title IX Regulation Changes

In April 2024, the United States Department of Education released updated regulations for Title IX, the federal law that prohibits sex discrimination in schools that receive federal funding. The last time regulations were updated was 2020.

The amended 2024 Title IX regulations allow for increased flexibility and informality in handling sex discrimination complaints in schools. These adjustments accommodate variations in school size, student populations, and administrative structures, while simplifying the grievance process. Previously, schools were required to utilize a Title IX Coordinator, investigator, and decision-maker, but now schools now have the option to utilize a single-investigator model. Schools are not required to offer informal resolution or an appeal process, but the regulations give schools the option to. If schools do choose to use informal resolution or an appeal process, the regulations must comply with Title IX’s rules.

Although procedural requirements are less strict, the rules have broadened the definition of sex-based harassment to include sexual orientation and gender identity. The definition of sex-based harassment is also expanded. A hostile environment exists when “unwelcome sex-based conduct … is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” Colorado law has a separate discrimination standard that is slightly lower, because it does not require conduct to be severe or pervasive.

The rules do not specifically address transgender student use of bathrooms or locker rooms, which has been an evolving legal topic across the country with different laws and rules by state. However, they did expand on the existing standard for separating facilities based on sex. Current regulations allow districts to provide separate toilet, locker room, and shower facilities on the basis of sex, as long as the facilities are comparable. 34 CFR 106.33. The new regulations clarify that separating by sex is acceptable if it doesn’t harm students too much (“does not impose more than de minimis harm on affected students.”) The rules state that preventing someone from participating in school (including in sex-separate activities) consistent with their gender identity causes that person more than de minimis harm.

Additionally, the scope of covered conduct now extends beyond a school's borders, encompassing incidents occurring under its education program or activity in the U.S., even if some actions occur elsewhere. This includes addressing sex-based hostile environments, regardless of where the contributing conduct took place. The definition of complainant under Title IX now includes individuals beyond students or employees, extending protections to those alleged to have been subjected to sex discrimination or who were participating in the educational program at the time of the alleged discrimination.

Additionally, the regulations introduce several new requirements, such as stricter privacy protections for personally identifiable information, explicit support for students based on pregnancy or related conditions, expanded duties for Title IX coordinators, and mandates for districts to consult with relevant student support teams in cases involving students with disabilities.

What to do with an SPU?

Whether you are a seasoned policy veteran or new to policy work, below are some tips for reviewing the information contained in the CASB SPU. CASB sample policies cannot simply be adopted “as is,” so please consider the following as you plan to update your district’s local policies: 

• Review the new or updated sample policies;
• Make decisions on optional language included in the sample policies;
• Add district-specific information;
• Consider local needs and circumstances;
• Engage in board and community conversations;
• Remove CASB note boxes after the board has considered the information contained in the note box;
• Remove the CASB copyright information;
• Consult with legal counsel;
• Present the policies to the board for review and adoption; and
• Call the CASB policy team with any questions!