Harpswell Community School is among dozens of Maine public schools barred by a Kansas federal court from implementing new nationwide policies intended to protect students and school employees from harassment and discrimination based on sex or gender.
However, Maine officials have noted that all people in the state are still protected from sex- and gender-based discrimination and harassment under the Maine Human Rights Act.
In August, President Joe Biden’s administration implemented an update related to Title IX, the landmark civil rights law that prohibits sex-based discrimination in federally funded schools, including colleges and universities.
The update rolls back policies implemented under former President Donald Trump, such as a requirement that a representative of the accused be allowed to cross-examine their accuser in a live hearing. The Trump-era version also imposed a narrower definition of sexual harassment.
The new version of Title IX offers schools more flexibility in how they respond to allegations of sexual misconduct. It also expands the definition of sex-based harassment to include misconduct based on sexual orientation, gender identity and sex characteristics.
Advocacy groups such as the National Women’s Law Center have argued that the Trump-era Title IX update undermined protections for victims and made it more difficult for schools to hold perpetrators of sexual harassment accountable.
“This is why it was opposed not only by survivors’ advocates and women’s rights organizations, but also by colleges and universities, superintendents, principals, mental health professionals, and many other stakeholders,” the Law Center has said.
Supporters of the Trump-era changes, implemented by then-Education Secretary Betsy DeVos in August 2020, have argued that the previous policies lacked due process protections for the accused in cases of sexual misconduct.
Related: Full list of Maine K-12 schools barred from updating Title IX rules
‘Bananas situation’
The Biden update rolls back the controversial procedures, among other changes, but many schools aren’t allowed to implement it. Twenty-six Republican-led states sued the administration in April over the Title IX update and were granted an injunction by federal courts.
The injunction will remain in place at least until the lawsuit is resolved, which could take months or years.
While Maine wasn’t one of the 26 states that sued, 33 K-12 schools in Maine are subject to a separate lawsuit filed in U.S. District Court for the District of Kansas. The University of Maine and Bowdoin College are also affected.
That lawsuit was filed by conservative advocacy groups, including Moms for Liberty, Young America’s Foundation, and Female Athletes United. The plaintiffs have argued that the Biden update overstepped by imposing federal mandates that clash with their personal, religious, and parental rights and values.
The groups sought to block enforcement of the Biden update in any school or college where a member or anyone in a member’s family works or is enrolled. The Kansas court granted an injunction in July.
Initially, only three Maine K-12 schools were included, along with UMaine and Bowdoin. However, an updated court filing on July 26 added 30 more Maine schools, including the K-5 Harpswell Community School, the town’s only public school. More than 800 schools nationwide were named in the updated court filing.
Maine schools still must comply with state law and regulations, “and they may have their own policies in place that they can apply or enforce that are substantively similar to the new Title IX regulations,” Danna Hayes, special assistant to Maine Attorney General Aaron Frey, told the Maine Morning Star in July.
An unusual aspect of the injunction is that it follows students as they advance through their education. For example, if an affected student at Harpswell Community School graduated to Mt. Ararat Middle School, that school would then need to roll back the Biden changes for as long as that student was enrolled and the injunction remained in place.
During a meeting on Thursday, Sept. 19, Maine School Administrative District 75 school board member Kim Pacelli, of Topsham, called it “a very odd and arguably bananas situation.” The district covers Harpswell, Topsham, Bowdoin and Bowdoinham.
Dual policies
Pacelli, a risk management expert who specializes in Title IX, worked with the district’s legal counsel to craft dual policy updates, one set based on the 2020 version of Title IX, and another based on the latest version issued in August.
The MSAD 75 school board on Thursday approved a first reading of both sets of policies regarding harassment, sexual harassment and discrimination. The 14-member board voted 13-0 in favor, with one abstention by its newest member, Jessica Damon, of Bowdoin.
The school board is expected to discuss the dual policies in greater detail and then vote to approve or reject them at its next meeting, scheduled for 6:30 p.m. on Thursday, Oct. 3, at Mt. Ararat High School in Topsham.
If approved, one set of policies would follow the Trump-era Title IX rules and would be applied at Harpswell Community School for as long as a child or other family member of a plaintiff group is enrolled or employed there.
The other set of policies would follow the Biden administration rules and be applied to all other schools in the district — at least for now.
“The underlying state of protections doesn’t change, but the procedures need to look a little bit different,” Pacelli told the school board.
The board also granted MSAD 75 Superintendent of Schools Heidi O’Leary the authority to adjust school procedures district-wide based on future court rulings and legal counsel.
