Why did the federal government cross the road?
To change the rules on the other side!
We had this edition of the KSBlog set to satisfy everyone’s deep desire to dive into updates to the federal Uniform Grant Guidance that will go into effect October 1, 2024. But we need to interrupt our regularly-scheduled blog post to share our take on breaking news about Title IX.
If you have watched KSB’s June 25 Title IX Webinar, you know that federal courts in Louisiana and Tennessee issued decisions holding that the US Department of Education cannot enforce the new Title IX regulations in ten specific states. (If you couldn’t watch it live, it was recorded and can be accessed on the KSB portal or by emailing shari@ksbschoollaw.com.) After our webinar, a federal district court in Kansas enjoined enforcement of the new regulations in four additional states, including Wyoming. Nebraska and South Dakota are parties to litigation in a federal court out of Missouri, and the judge in that case will rule on that lawsuit sometime in the coming weeks. We’ll explain below why the new Kansas decision doesn’t really change our advice to schools about Title IX policies and procedures.
Some of the commentators who have written about all this litigation have talked about the possible implications of the US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo for the Title IX regulations. In Loper Bright, the Court reversed what's been known as “Chevron deference,” a 1984 case that said judges should generally defer to federal agencies when rules they make are reasonable, and the enabling law was silent or ambiguous. Overturning Chevron does NOT mean all regulations are suddenly out the window. In fact, the Court said the opposite in the opinion. The Loper Bright decision is a pretty big deal to nerdy lawyers, but schools shouldn’t think that it is a get-out-of-compliance-free card.
So now what? Our advice to our clients remains the same. The changes to the Title IX process and procedures are friendly to schools. Reducing the number of administrators that must be involved in responding to allegations of sex harassment—and giving schools more flexibility in timeframes—are welcome improvements. Most of the litigation around Title IX is about bathrooms, locker rooms, and whether the term “sex” includes gender identity and sexual orientation. We believe school policies should focus on the process, not the politics. We wrote our policy the way we did for a reason, in anticipation of these legal developments. You should train your staff and your Title IX team, and that training should be practical. It should be focused on how best to serve students consistently day-to-day in 24-25 based on what we do know, not what we might know in a week, a month, or a year. KSB plans to stick to the same training schedule, adapted to make sure you’re prepared no matter who is “right.” But if you have questions about policies or training, give us or your school attorney a call.
Now, back to our regularly-scheduled programming . . . .
UGG. On April 4, 2024, the Biden-Harris Administration announced the release of updates to the federal Uniform Grant Guidance. The changes go into effect October 1, 2024 and will impact grant awards from that date going forward. The administration also released a memorandum summarizing the changes here. While many of the changes impact the manner in which federal agencies award grants, there are several changes (all of which are good for schools) school administrators should review.
The UGG increases the value of equipment at the end of a grant period that “may be retained, sold, or otherwise disposed of with no further responsibility to the Federal agency” from $5,000 to $10,000.
The same goes for unused supplies that increases from $5,000 to $10,000.
The single audit threshold increases from $750,000 to $1,000,000. (School auditors rejoice!)
If you utilize the de minimis indirect rate for grants, that amount increases from 10% to 15% for indirect costs.
The amount of indirect costs increases from $25,000 to $50,000.
What are the next steps you should take to ensure compliance? Review your school policies regarding purchasing using federal grant funds. The revisions also include changes to language formerly used in the UGG. For example, the UGG now uses the term “simplified acquisitions” instead of “small purchases.” It also includes veteran-owned businesses on the list of preferred vendors. KSB policy service subscribers received updated policies containing these changes during the 2024 updates last month. If you adopt those, your policies will now reflect the updated terms.
If you have any questions regarding Title IX or grant purchasing compliance, do not hesitate to contact any of the KSB attorneys at ksb@ksbschoollaw.com or 402-804-8000.