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The Title IX Spotlight Shifts from the Campus to the Schoolhouse – by R. Shep Melnick

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The U.S. Department of Education headquarters in Washington, D.C.

Already overwhelmed by the Covid-19 challenge, public elementary and secondary schools have yet another problem to address: sexual harassment. In February, the U.S. Department of Education announced a new enforcement initiative designed to “combat the troubling rise of sexual assault in K­–12 public schools.” During the Obama administration, the department’s Office for Civil Rights, or OCR, focused primarily on sexual assault on college campuses. Three factors led the department to shift gears and pay more attention to elementary and secondary education: new federal legislation that prohibits schools from passing along to other districts employees who have engaged in sexual misconduct with students; an investigation of Chicago schools that uncovered pervasive sexual misconduct by teachers and students; and evidence from the department’s Civil Rights Data Collection that nearly 10,000 students in elementary or secondary schools were the victim of assault, rape, or attempted rape during the 2015–16 school year.

In early May, the department released its long-awaited regulations spelling out schools’ responsibilities for addressing sexual harassment under Title IX of the Education Amendments of 1972. This was the first full administrative rulemaking process the department has ever conducted on the subject and its most substantial effort to explain the differences between the rules that apply to K–12 schools and those that apply to colleges and universities. The department’s explanation of its new regulations runs to more than 2,000 pages. Since elementary and secondary schools will soon come under greater scrutiny than ever before, school attorneys and Title IX officers will be poring over that gargantuan document to determine what school districts must do to comply with federal law.

Evolving Disputes

Title IX says nothing about sexual harassment or sexual assault; it simply prohibits educational institutions that receive federal funds from discriminating on the basis of sex. In the 1990s, however, federal courts began to hold school districts responsible for sex-based harassment serious enough to deny a student equal access to education. In 1992, the Supreme Court ruled that a school district could be sued for monetary damages for failing to prevent serious, ongoing abuse of a student by a teacher. Then, in 1998 and 1999, the high court issued two additional decisions that established the legal framework for evaluating schools’ liability for sexual misconduct: a school is liable under Title IX only if it has “actual notice” of harassment “that is so severe, persistent, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit,” and responds to such misconduct with “deliberate indifference.” All three of these cases, it bears noting, involved elementary and secondary schools.

The Supreme Court’s standard was more lenient than the standard OCR had announced a few years earlier in a guidance document. On the day before the inauguration of George W. Bush, the outgoing Clinton administration explained that it would not follow the court’s lead. The court’s standard, it insisted, applied only to suits for monetary damages, not to the rules schools must follow to qualify for federal funding. OCR doubled down on its previous position, establishing more demanding procedures for reporting, investigating, and responding to harassment complaints. For over a decade, those 2001 guidelines remained in legal limbo, neither enforced nor repudiated by the Bush administration.

In 2010, the Obama administration began a multiagency campaign to address a problem the president claimed “threatens our families” and “tears at the fabric of our communities”:  sexual violence on college campuses. The key element of that effort was a 2011 “Dear Colleague” letter authored by the head of OCR. It spelled out in detail what all schools that receive federal funds—not just colleges—must do to comply with Title IX. The new guidelines went well beyond those previously announced in specifying the procedures schools must follow in disciplinary proceedings and the remedial steps they must take both for individual victims and for “the broader student population.” The letter required schools to apply the “preponderance of the evidence” standard (sometimes described as “50 percent plus a feather”) when adjudicating complaints of misconduct rather than the “clear and convincing evidence” standard used by some colleges. The agency strongly encouraged schools to dispense with hearings altogether by instituting the so-called “single-investigator model.” This gives a single person appointed by the school’s Title IX coordinator authority not only to investigate the alleged misconduct, but also to determine guilt or innocence—with limited opportunity for appeal. The letter also established a broad definition of sexual harassment, one that swept in many forms of speech as well as conduct.

OCR then conducted hundreds of lengthy investigations of colleges and universities, most of which culminated in detailed compliance agreements. Underlying this effort was the contention that “one in five college women is sexually assaulted in college” as a consequence of the campus “rape culture.” Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual-harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence.”

These regulatory policies were attacked by civil libertarians who claimed that OCR’s rules had eviscerated students’ due-process and free-speech rights, by many college and law-school professors who resented OCR’s intrusion into academic affairs, and by conservatives who charged that OCR had exceeded its legal authority. That the Trump administration would withdraw the Obama administration’s guidance and revise its investigation strategy was a foregone conclusion. Less clear was what would replace them. Proclaiming that “the era of rule by letters” was over, in the fall of 2017, Secretary DeVos promised to use the rulemaking procedure mandated by the Administrative Procedure Act to establish new rules rather than announce them unilaterally through “Dear Colleague” letters. It took the department over two years to complete this rulemaking process. Its initial proposal, released in November 2018, received over 124,000 comments. The department responded to most of those comments in its May 2020 announcement.

The New Title IX Regulations

The central feature of the Trump administration’s approach is a return to the framework established by the Supreme Court in 1998 and 1999. No longer would schools have broad responsibility to “change the culture,” to “end any harassment,” and to address the effects of “rape culture” on the entire student population. Now the focus was on schools’ responsibility to address particular cases of serious sexual misconduct. At the same time, the new rules go far beyond the court’s bare-bones framework to explain what constitutes harassment, what schools must do to identify and adjudicate cases of misconduct, and the remedies they must provide to victims of such misconduct.

In its 2018 proposal, the department also asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary level, if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties. . . and whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Although judges and administrators had previously acknowledged important differences between K–12 students and those in postsecondary institutions, this was the first time regulators had addressed the issue directly.

The most controversial element of the proposal and the final rule was the requirement that colleges and universities hold live hearings with cross-examination in sexual harassment disciplinary proceedings. Media coverage of the issue has focused heavily on the implications of the new rules for colleges, paying little attention to the fact that this requirement does not apply to elementary and secondary schools. This was one of the two major differences between the rules that now apply to K–12 schools and those that apply to higher education. The other concerned school employees’ responsibility for reporting sexual-misconduct allegations. Here the new regulations established stricter rules for elementary and secondary schools.

These stricter rules address what has long been the most common—and most serious—criticism of the Supreme Court’s framework: If schools are responsible for addressing sexual harassment only if they have “actual knowledge” of misconduct, what is to prevent them from “sticking their head in the sand” (as one law review article put it) to avoid liability? What must students and staff do to make the school aware of possible misconduct? The new rules require colleges and universities to make it easy for those subject to harassment—and anyone else who has witnessed or heard about such harassment—to file a report with the institution’s Title IX coordinator or with any other official “who has authority to institute corrective measures.”

Once the institution has received such reports, staff from its Title IX office must meet with the “complainants” (the term used to describe the targets of the alleged misconduct), offer them various “supportive measures,” explain to them how to initiate a full investigation by filing a formal complaint, and offer them informal resolution options. The department emphasized that college students are mature enough to decide for themselves how to proceed. It claimed that research demonstrates “that respecting an alleged victim’s autonomy, giving alleged victims control over how official systems respond to an alleged victim, and offering clear options to alleged victims are critical aspects of helping an alleged victim recover from sexual harassment.” Although the Title IX coordinator retains authority to launch a full investigation without the consent of the complainant, it will usually be difficult to prove misconduct without testimony from a key witness. Postsecondary institutions can require teachers and other employees to report harassment they witness or hear about, but the regulations do not require them to do so.

K–12 schools, in contrast, must consider teachers and all other school employees “mandatory reporters.” That means that when any employee learns of possible misconduct they must report it to their school district’s Title IX coordinator, and the district must investigate the matter. This reflects a change from the department’s 2018 proposal, which had included only teachers as “mandatory reporters.” The department offered this explanation of why it extended this responsibility to all employees:

The Department is persuaded by commenters who asserted that students in elementary and secondary schools often talk about sexual harassment experiences with someone other than their teacher, and that it is unreasonable to expect young students to differentiate among employees for the purpose of which employees’ knowledge triggers the school’s response obligations and which do not. Elementary and secondary schools generally operate under the doctrine of in loco parentis. . . Further, employees at elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective services. The Department is persuaded that employees at elementary and secondary schools stand in a unique position with respect to students and that a school district should be held accountable for responding to sexual harassment under Title IX when the school district’s employees have notice of sexual harassment or sexual harassment allegations.

Consequently, one of the most important steps schools must take to comply with Title IX is to make it clear to all employees that they must without delay report alleged misconduct to the district’s Title IX coordinator. Perhaps the most egregious failing of the Chicago school system uncovered by OCR’s investigation was to allow thousands of known incidents of serious misconduct go unreported and remain unaddressed.

Under the new Title IX rules, the grievance procedures established by K–12 “may, but need not, provide for a hearing.” Nonetheless, schools must provide to each party—and their parents—a description of the allegation and a copy of the investigative report on the incident. They must also “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Some who commented on the draft proposal objected that such a procedure “exposes students to hostile proceedings, unnecessarily limits the discretion of local school officials, or obligates school districts to expend resources in an unwarranted manner.” But the department held that “written submission of questions prior to adjudication” constitutes an essential element of due process and “a procedure that benefits the truth-seeking purpose” of the grievance procedure.

The final rules also require that each party have an equal opportunity to present evidence and appeal the initial decision. The alleged perpetrator must be assumed innocent until proven guilty: the burden rests on the school to show that he or she has engaged in inappropriate conduct. The regulations warn against gender bias and sex stereotyping, whether it be of the “boys will be boys” or “girls don’t lie about sexual assault” variety.

The new rules also seek to clarify whether and when schools are responsible for misconduct that takes place outside school grounds. Title IX covers all the “educational programs or activities” offered by an institution receiving federal funds. For elementary and secondary schools this includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs.” Schools thus have responsibility for addressing conduct that takes place on school buses, on field trips, or at athletic events. But what about students walking home from school? Internet messages or videos sent from home computers but read at school? On these difficult matters the rules are silent. Complicating these boundary issues is the fact that some forms of harassment are covered by state criminal law and thus subject to police investigation. Consequently, public schools need to reach agreements with local police on how they will divide surveillance duties, communicate with each other, and cooperate with investigations.

As school officials well know, federal civil-rights regulations place conflicting pressures on public schools. They are expected to protect their students not just from sexual harassment, but from many other forms of bullying. At the same time, they must respect their students’ basic due-process rights—including those spelled out in the new regulations. During the Obama administration, OCR issued yet another “Dear Colleague” letter, this one warning against disciplinary procedures that have a “disparate impact” on racial minorities. That letter strongly discouraged schools from suspending or expelling students for violating school rules. Such out-of-school punishments, OCR maintained, are a key component of the “school-to-prison pipeline.” Although the Trump administration withdrew this guidance, many schools have placed stricter limits on out-of-school punishments. But if an institution allows a student found guilty of sexual misconduct to remain in school, it could expose many other students to further sexual harassment—and the school itself to liability.

Enforcement: Investigations and Lawsuits

The main reason schools should establish clear, well-publicized conduct rules and reporting procedures, and take prompt action to investigate allegations, punish transgressors, and provide remedies to victims, is to reduce risk to students. But school officials also need to be concerned about their legal liability. Frequently, they will be told that failure to follow federal regulations can lead to the revocation of federal funds, though that will seldom happen. Over the past half-century, the number of times the federal government has terminated funding for failure to comply with Title IX is exactly zero. Instead, schools need to be concerned about three other forms of sanctions: private suits for damages brought by the victims of misconduct; investigations by OCR; and investigations by state and local law enforcement.

The Supreme Court’s 1992 decision in Franklin v. Gwinnett County Public Schools held that a student subjected to serious and repeated abuse by a teacher can seek monetary damages from the school district if it can be shown that school officials knew about the abuse and did nothing to stop it. The court’s later Title IX decisions established somewhat more clearly the liability rules that apply in these cases, and the new Department of Education rules spell out in much greater detail how it will apply that framework. Consequently, schools that in good faith follow those regulations are unlikely to be assessed damages under Title IX. Conversely, failure to follow the regulations will substantially increase this risk. Since parts of the new rules are specifically designed for K–12 schools, judges will be more inclined to punish those who ignore them.

Despite all the attention devoted to sexual harassment during the Obama years, until recently, OCR devoted few resources to investigating complaints in elementary and secondary schools. Starting in 2014, OCR turned every complaint lodged against a college or university into a full-scale investigation of the entire institution. Previously, the agency had publicized investigations only at their conclusion; now, it would announce with great fanfare which schools it planned to investigate. These changes were key elements of an enforcement strategy that proved remarkably effective in convincing schools to change their policies. Since OCR could not rely on the courts to enforce the demands in its 2011 “Dear Colleague” letter and since it would never pull the trigger to terminate federal funds, it in effect made the investigative process the punishment. For colleges, these investigations—some of which lasted for years—proved costly not just financially, but in terms of their reputation. Almost all eventually agreed to OCR’s demands.

These investigations were costly for OCR, as well. With fewer than 600 staff members and about 10,000 individual complaints to investigate each year, the intense focus on sexual harassment on college campuses left OCR with few resources to investigate anything else. In 2017, the Trump administration reverted to OCR’s previous policy of turning investigations of individual complaints into institution-wide compliance reviews only when it found evidence of systemic violations. This made more enforcement resources available for the K–12 initiative announced by Secretary DeVos this February.

OCR had received complaints about sexual misconduct in Chicago Public Schools in 2015 and 2016 but began its systemwide investigation only after the Chicago Tribune published an expose on pervasive and serious misconduct by students and employees in many Chicago schools. OCR’s extensive investigation revealed that, over a four-year period, Chicago schools had received 2,800 student-on-student complaints and 280 teacher-on-student complaints. Yet, for two decades—from 1999 to 2018—the district did not even have a Title IX coordinator, the first and easiest step a district must take to comply with federal rules. OCR’s investigation culminated in a 40-page “resolution letter” and an 11-page compliance agreement with the school system. The latter included not only detailed guidelines on the structure of its Title IX office and procedures for handling of complaints, but also 13 separate reporting requirements.

The 2019 resolution letter offered disturbing details on the extent of sexual harassment in Chicago’s troubled school system. Here are just two paragraphs from that letter:

Many complaints alleged ongoing physical sexual harassment of District students, including that students were repeatedly groped, grabbed, or fondled by their peers, who were often repeat offenders with a history of sexually harassing other students. These complaints documented reports of unwelcome touching over and under clothing, on the breasts, buttocks, and groin throughout the school day and at all locations in school buildings, including in school bathrooms, on the staircase and in hallways, while lining up at the water fountain, during recess on the playground in front of their peers, in the school parking lot, on school buses while traveling for school-sponsored field trips, to extra-curricular activities, and to/from their homes to school.

OCR observed that many of the complaints described students exposing their genitals at school to and in front of peers—in the classroom, on the playground, in the school bathroom—and during field trips and extracurricular activities. Schools reported a significant number of complaints of verbal threats and harassment, with students disclosing that their classmates and peers made comments such as “I’m going to rape you in the bathroom”. . .  Some students threatened more violence if their peers reported the conduct. . .  The complaints suggested that some students were coaxed and pressured by their peers to send sexually explicit images and videos of themselves, which classmates then distributed widely in the school without the student’s consent. In other cases, students who engaged in consensual activities were filmed by their peers engaging in the conduct without their knowledge and consent, and fellow students then widely shared the images among the student’s peers who discussed, viewed, and shared the images during the school day. In many of these cases, students reported suicidal ideation or threatened self-harm.

The Tribune documented multiple cases of sexual assault and statutory rape by school employees, including teachers, security officers, and coaches. Equally disturbing was the school system’s failure to address these problems when they were called to their attention by students and their parents.

To what extent is Chicago an outlier? We will have a better handle on this question once OCR begins its investigation of other school systems. Meanwhile, public schools are on notice that the federal spotlight now shines on them. Complying with Title IX regulation has become more important than ever.

Because most elementary and secondary school students are minors, misconduct in K–12 schools is more likely to violate state criminal law than the type of misconduct common on college campuses. One implication of this is that private schools not subject to Title IX (because they receive no federal funding) must still recognize their responsibilities under state law. In recent years, some of the worst abuses have been discovered at private boarding schools. For example, an investigation of the prestigious St. Paul’s School in Concord, New Hampshire, by the New Hampshire Attorney General uncovered many instances of serious misconduct by both students and staff. It culminated in a settlement agreement establishing an “Independent Compliance Overseer” who would be “embedded on the St. Paul’s School campus and tasked with reporting at least biannually to the Attorney General’s Office regarding St. Paul’s School’s compliance with all of the terms of the Agreement.” Private schools, too, would be wise to comply with Title IX rules to avoid liability under state tort law.

Coming Full Circle

When federal administrators and judges first used Title IX to address the problem of sexual harassment, their focus was on elementary and secondary schools. Starting in 2010, the emphasis shifted to college campuses. To its credit, the Department of Education has now, for the first time, explained how Title IX applies in these much different contexts. As the department steps up its investigation of K–12 schools, the new rules on due process and mandatory reporting become particularly important.

Will these new rules reduce the incidence of sexual misconduct in public schools, or will they make it easier for schools to look the other way? Or will schools simply substitute one form of procedural compliance for another? The truth is that we don’t know much about the effectiveness of Title IX rules. As vice president, Joe Biden was one of the most vigorous proponents of the administration’s efforts to reduce sexual assault on campus. But six years after that campaign began, Biden wrote a letter to college presidents claiming that little had changed: “Twenty-two years ago, approximately one in every five women in college experienced rape or sexual assault. Today that number is the same.” The harsh truth is that we do not have a good handle on either the frequency of sexual assault on campus or the effectiveness of various policy responses.

What we do know is that young women who do not attend college are more likely to be the victims of sexual assault than those who do. As Professor Callie Marie Rennison of the University of Colorado has pointed out, “while people have been bombarded with the notion that universities and colleges are hotbeds of sexual violence,” the rate of sexual victimization of women without a high-school education is “more than 400 percent greater than those with a bachelor’s degree or more.” Or, to put it in another way, female students attending Chicago public schools are much more likely to face sexual harassment that seriously limits their access to education than those attending Yale, Berkeley, or even Michigan State. This does not mean we should do less to address sexual misconduct at the college level, but it does suggest that federal regulators are right to pay more attention to the problem in some of our largest school systems. Let’s hope that the new rules specifically designed for elementary and secondary schools will aid that effort.

R. Shep Melnick is Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

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Colorado offers $4.1 million to cities that use pavement for people, not cars as part of coronavirus recovery

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Across Colorado, communities large and small are diverting cars around main streets to allow more open-air, socially-distanced dining, shopping and strolling.

And now the state is stepping in with a new $4.1 million grant program to encourage more creative uses for public streets as businesses revive after the pandemic shutdown.

Denver, Boulder, Littleton, Louisville, Arvada, Frisco, Breckenridge, Carbondale, Erie, Fort Collins and Estes Park are among the first municipalities to experiment with shifting pavement built for cars to pedestrian-only pockets. 

COVID-19 IN COLORADO

The latest from the coronavirus outbreak in Colorado:

  • MAP: Known cases in Colorado.
  • TESTING: Here’s where to find a community testing site. The state is now encouraging anyone with symptoms to get tested.
  • WRITE ON, COLORADO: Tell us your coronavirus stories.
  • STORY: Coronavirus is killing fewer Colorado nursing home residents, but officials warn the state hasn’t “turned a corner”

>> FULL COVERAGE

Gov. Jared Polis’s new multi-agency Can Do Colorado Community Challenge — announced Thursday amidst a flurry of initiatives — is championing those kinds of community efforts with grants that support safer workplaces, more open restaurants and easier remote working. 

Other state agencies involved in the challenge include the departments of labor, local affairs, regulatory affairs, public health, the Regional Air Quality Council, the Denver Regional Council of Governments and the Colorado Energy Office, all working to maintain progress made during the pandemic on issues like traffic and air quality. The agencies are offering a variety of grants, from a $500,000 program that offers e-bikes and e-scooters to low-income workers to commuting incentives for workers and employers that could improve air quality.

The Colorado Department of Transportation is providing “small-scale grants” to cities and towns that can quickly convert parking spots and roads into plazas, using money available in the state’s Multi Modal Options Fund. The agency also is offering micro grants up to $5,000 for communities that promote telework to reduce commuter traffic on local roads.

“The blanket learning we can take from this is that government and business are serious about reprioritizing street spaces for all these different reasons and the effect is that people biking and people walking are just as welcome as people in cars,” said Piep van Hueven with Bicycle Colorado. 

Bicycle Colorado’s Denver Street Partnership in April surveyed 1,400 Denver residents and found the pandemic stirring a growing focus on walking and biking in the city. Nearly 90% of respondents said the city should reallocate street space for people and they suggested more than 200 stretches of downtown streets for closures and bike lanes, many around Capitol Hill. 

The shift away from cars in public space is coming as businesses reopen under strict guidelines for keeping customers spaced 6 feet apart. That’s pushed cafes onto sidewalks and tables into parking lots. 

CDOT communications director Matt Inzeo said the agency is working with different communities coming up with ideas for temporarily changing public spaces built for cars. For example, he pointed to Estes Park considering an adjustment to U.S. 34 through downtown, Fort Collins exploring business and restaurant space in diagonal parking spots and Breckenridge closing its entire Main Street to cars and routing traffic around downtown. 

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“The look of this may vary from one community to another,” said Inzeo, who expects CDOT will award “lots of smaller grants” to help communities pay for traffic barriers, paint and staff planning expenses.  “As for bike lanes, there could be a scenario where they come into play but the conversations so far are focused on expanded public spaces near commercial centers.”

For the growing community of biking and pedestrian advocates who have spent the last decade pushing for a better balance of cars and people in local public space, CDOT’s turn toward community-focused space is a welcome opportunity. If pedestrian-friendly streetscapes bustling with outdoor diners and shoppers prove successful, many hope the shift could be more than temporary.  

CDOT is able to do this for communities on U.S. highways based on a temporary waiver from the federal government, Inzeo said, noting that some changes may not be permanent but adjustments made on city and town streets could last longer based on local support.

“This is an exciting experiment to see in real life what happens when you are able to repurpose street space for public space that doesn’t include cars,” said Morgan Lommele, the director of state and local policy for People For Bikes. “What if we are able to use the current circumstance to find shared values and understand there is very likely enough room for cars even if we take cars off select street to expand other types of access to public places?”

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Recovering from coronavirus may not be such a struggle for some Colorado downtowns after all

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As coronavirus safety measures forced many shops and restaurants to temporarily close in March, a private Facebook group popped up to connect business owners specifically in downtown Colorado Springs. 

COVID-19 IN COLORADO

The latest from the coronavirus outbreak in Colorado:

  • MAP: Known cases in Colorado.
  • TESTING: Here’s where to find a community testing site. The state is now encouraging anyone with symptoms to get tested.
  • WRITE ON, COLORADO: Tell us your coronavirus stories.
  • STORY: Coronavirus is killing fewer Colorado nursing home residents, but officials warn the state hasn’t “turned a corner”

>> FULL COVERAGE

There, they traded resources and information, discussed what each was doing to survive and talked about how the city could help local restaurants and retailers, like speeding up the permitting process to allow for sidewalk dining. Owners shared what they financially needed and soon learned that $650,000 in grants were made available to downtown shops and restaurants. The group’s creators? The Downtown Partnership of Colorado Springs.

“Their ability to bring everybody into a conversation together in multiple ways blew me away,” said Morgan Calderini, co-owner of Ladyfingers Letterpress, a stationary and gift store on East Bijou Street. “I have business owner friends in other towns and no one had this support we saw from the Downtown Partnership.”

Ladyfingers Letterpress in downtown Colorado Springs has re-opened to walk-in customers with new social distancing guidelines. (Mark Reis, Special to The Colorado Sun)

The rallying efforts of the nonprofit downtown agency is one of many factors credited with getting Colorado Springs business owners through the worst of the coronavirus disruptions. It’s a sentiment echoed in other downtowns around the state where similar partnerships spent the stay-at-home period organizing virtual events and gift-card purchases, while promoting the spirit of buying local. A promotion offering a $10 gift card to shoppers who spent $25 (now at $50) at downtown businesses in Grand Junction helped spur $70,000 in spending, according to Grand Junction downtown officials. 

Of course, it’s not over yet. And it didn’t work for everyone. Some, like Iron Bird Brewing Co. in Colorado Springs, called it quits in early May. In downtown Denver, some shops remain boarded up, waiting on office workers and other customers to feel safe enough to return. Hotels continue to keep staff furloughed. Surviving the coronavirus disruption may be the most challenging experience any downtown organization will face because of its suddenness and effect on all commerce, not like past financial downturns affecting core industries. 

Iron Bird Brewing in downtown Colorado Springs announced May 6, 2020 it was closing permanently due to the COVID-19 pandemic. (Mark Reis, Special to The Colorado Sun)

Officials in other Colorado downtowns shared reasons for their optimism and why their urban center will make it through. Denver officials pointed to the strong momentum going into the pandemic with high employment, an influx of new companies moving to the city. In Grand Junction, director Brandon Stam said his town is in a more remote area and has attracted people from larger cities seeking a less crowded, more affordable place to live. 

“Most of the big capital projects are still underway and they’re still going on,” Stam said. “In a weird way I think we’re pretty well set up to recover.”

Colorado Springs fits in between those two, entering the pandemic with a slew of construction projects that continued to progress in the past two months. In downtown there are two sports stadiums, about a dozen apartment buildings and three hotels under construction. The new U.S. Olympic Museum is still expected to open this summer, or maybe fall. 

“None of them are finished or were scheduled to be finished. All of them are funded already,” said Mike Juran, CEO of automotive tech company Altia, which moved its headquarters to downtown in the past year. “And nobody’s pulling funding back, and all of the construction has been considered essential business. We’ve got cranes down here, more cranes than we’ve ever had. They’re not slowing down. And the hope is, when they open, people will start traveling again.”

The Colorado Springs Switchbacks FC will be the primary tenant of a multi-use stadium now under construction in south downtown Colorado Springs. (Mark Reis, Special to The Colorado Sun)

The financial appeal of downtowns 

As downtowns in Colorado reported their annual updates in May, COVID addendums were added at the last minute. For Denver, the Downtown Partnership cautioned that tourism, which accounts for $800 million in annual visitor spending, had ground to a halt. Permits for new projects had dropped 11% this year as of April, compared to the same period of last year. And the value of projects had fallen 32%.

But before the pandemic hit full force, the city had 23 major projects under construction, added 11,000 new residents in the past year and grew retail sales and sales-tax collection by 8.2% — “the largest annual increase since 2014.”

“We had record levels of employment, record levels of visitors, record levels of residential population is really virtually every economic indicator you can imagine in downtown, we were setting records. If there was a way to go into sort of an economic recession, caused by the pandemic, we were fit, we were strong, we were as well prepared as humanly possible,” said Randy Thelen, senior vice president for economic development at the Downtown Denver Partnership.

Businesses in downtown Denver have been boarded up in the wake of recent protests against police violence. June 9, 2020. Larry Ryckman / The Colorado Sun

Besides cleaning crews power washing surfaces regularly and cleaning touchable surfaces every other hour, Thelen said the downtown agency is rethinking events. Canceled are massive ones, like “A Taste of Colorado” over Labor Day weekend. But smaller, more dispersed activities to “give people a moment of joy at multiple places around the core of our city” are being planned, he said.

Financial research firm Moody’s Analytics ranked Denver among the nation’s top 10 “best positioned to recover” from COVID.

“Just (Tuesday night), I walked through Larimer Square, which is a great retail street in downtown Denver, and just eyeballing it, the outdoor cafe spaces looked to be about 80-90% occupied,” he said. “People want to get back to their favorite restaurants, they want to get back into downtown but they want to do so safely.”

The U.S. Olympic and Paralympic Museum under construction in downtown Colorado Springs June 10, 2020. The opening of the museum has been delayed as a result of the COVID-19 pandemic. (Mark Reis, Special to The Colorado Sun)

The story’s a little different in Colorado Springs, which also touted 2019 as one of its best years ever in its annual report. But it had taken the city a long time to get downtown to this point, said Susan Edmondson, president and CEO of the Colorado Springs Downtown Partnership.

“In the recession of 2008, what we were lacking then is something we’ve lacked for a long time that we’re changing, and that’s lots of people living downtown,” Edmondson said. “That was one of the big things that held back our downtown recovery. We know it’s so important for our shops and restaurants, they need people living near them.”

Nine multifamily projects have been announced for downtown that will add 1,250 new places to live within three years. That will have a dramatic impact on downtown residents, which number around 2,000, a 14% increase since 2010. 

Ladyfingers Letterpress in downtown Colorado Springs has re-opened to walk-in customers with new social distancing guidelines. (Mark Reis, Special to The Colorado Sun)

Juran, who lives downtown and now bikes to Altia’s downtown office, said he expects office workers to return soon. About 40 employees who usually work at the downtown office are still working at their homes. But folks are anxious to return, he said. 

“We started a couple of new employees last week, we had a new intern team start a couple of weeks ago and they’re not getting the benefit of the face-to-face experience,” he said. “The existing relationships with all of our employees have been really good so we have this level of trust, we’ve been able to use meetings like Zoom and GoTo. It’s been OK for now, but we’re going to definitely go back.”

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More changes expected

More than a week after police brutality protests occurred in cities nationwide including in Colorado Springs, the Downtown Partnership in Colorado Springs posted a statement this week on its homepage that systemic racism must end. It pledged to channel efforts “toward sustained progress for true justice and equity for all.” 

“Downtown is the front porch to the city, which is where we come to speak, if you will, in the public square and call for changes to society,” said Edmondson, with the Downtown Partnership. “We respect those who do it peacefully and we absolutely believe this can be done peacefully and these voices need to be heard.”

She said that the conversations must continue, plus a plan of action. She said many of the downtown businesses want to figure this out together.

Ladyfingers Letterpress in downtown Colorado Springs has re-opened to walk-in customers with new social distancing guidelines. (Mark Reis, Special to The Colorado Sun)

“I’ve been really gratified that many of our businesses have really leaned into this as well and whether it was providing water for demonstrators, or just making clear that there’s a safe space that they’re welcome to come,” she said. “Our businesses knew this is an important conversation to have.”

Over at Wild Goose Meeting House, a coffee and casual food cafe on North Tejon Street, the changes are welcome, said Russ Ware, who started the neighborhood hangout with business partner Yemi Mobolade. 

“The cultural upheaval that’s happening which, thank God I’m 100% for it, this is the most important thing that’s probably going to happen in my lifetime,” Ware said. “I thought it was going to be getting through this virus. And now I’ve figured out, oh no it’s not. We might actually finally turn a major corner with racial justice in this country.”

Wild Goose Meeting House in downtown Colorado Springs has re-opened to dine-in with new guidelines and expanded outdoor seating. (Mark Reis, Special to The Colorado Sun)

Ware’s used to change. The meeting house started in 2013 as a coffeeshop that sold some food. It quickly evolved into a restaurant that sold coffee and offered live entertainment on some nights. As coronavirus shut the place down in March, Ware focused on sister restaurant, Good Neighbors Meeting House, located in a more residential neighborhood in the northern outskirts of downtown. He turned it into a food market where you can still buy a 1-pound block of Muenster cheese for $5.

Wild Goose reopened four weeks later and added its own food market and to-go orders, which it had never offered before. As restaurants were allowed to partially reopen to in-person dining in late May, Ware tried something new: Wild Goose began taking prepaid reservations for people who just wanted to bring their laptop in and work outside of their home.

“As things ramped up, that’s kind of the biggest shift we did there and we’re only a couple weeks into it, but it’s going really well,” said Ware, who hopes to adopt prepaid reservations when they can start hosting jazz nights again. “You know, we’ve never even taken reservations here, much less this novel idea of prepaid reservations. What coffee shop even has reservations? So, it’s kind of crazy.”

Wild Goose Meeting House in downtown Colorado Springs has re-opened to dine-in with new guidelines and expanded outdoor seating. (Mark Reis, Special to The Colorado Sun)

Wild Goose is lucky to have its own outdoor patio with 11 tables. But Ware is also supportive of blocking the streets from vehicle traffic to allow other restaurants without patios to expand their outdoor space. 

“Maybe we can create zones where different restaurants and bars share areas where they can carry beer out into the middle of Tejon Street,” Ware said. “Maybe they got something from Jose Muldoon’s and they’re sitting next to somebody that got something from Mood Tapas bar or whatever. A kind of glorified outdoor food court.”

It’s that sort of local support that seems woven into this downtown community, a sentiment you don’t usually find in shopping centers filled with national retailers and chain restaurants. Even online, business neighbors support one another. Earlier this week, a Wild Goose post on Facebook encouraged its fans to head over to Ladyfingers Letterpress to buy Black Lives Matter posters.

Morgan Calderini, left, and Arley Torsone are co-owners of Ladyfingers Letterpress in downtown Colorado Springs. The store has re-opened to walk-in customers with new social distancing guidelines. (Mark Reis, Special to The Colorado Sun)

Calderini, who owns and operates the Ladyfingers Letterpress store with wife and designer/illustrator Arley-Rose Torsone, said the couple put the mortgage on their house on hold and on forbearance and paused every single bill they could. They weren’t eligible for one of the forgivable federal Paycheck Protection loans because the company had an existing loan from the Small Business Administration. They did get a $15,000 grant from the downtown Small Business Relief Fund, which was funded by a downtown tax program and donations from several private businesses. It doled out $650,000 to 95 downtown businesses

“I feel like it’s hopefully brought a greater awareness to people that where you’re shopping is what you’re supporting,” Calderini said. “For us, what we have been so grateful for is that the community here came out and continued to come out. They may not need a candle but they are buying one and they’re supporting us because they want us in the community.”

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In final hours of legislative session, Colorado Democrats drop bill to raise cigarette taxes, create nicotine tax

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Democrats in the Colorado legislature on Thursday introduced an 11th-hour bill that seeks to ask voters in November to raise taxes on cigarettes and start taxing other products that contain nicotine.

House Bill 1427 would ask voters to gradually — but significantly — raise the taxes over the next seven fiscal years.

Whereas taxes on a pack of cigarettes are now 84 cents, the bill would ask voters to allow the state to raise that amount to $1.94 starting next year. Starting in July 2024, taxes on a pack of cigarettes would then rise to $2.24 a pack. Then in July 2027 and moving forward, the taxes would be $2.64 a pack.

Nicotine products, including vaping devices and fuel, would be taxed at 50% of their manufacturer’s list price starting next year if voters sign off. Starting in July 2024, that would rise to 56% of the list price. Then in July 2027 and moving forward, the taxes would be 62% of nicotine products’ market list price

Vaping products aren’t currently taxed in Colorado.

The bill was introduced Thursday, a day before the legislature was originally supposed to adjourn after returning for three weeks following a two-month-plus coronavirus pause. It appears lawmaking will stretch into the weekend now in order to accommodate House Bill 1427 and other last-minute legislation.

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The measure was introduced with such haste that its 43 pages of text hadn’t been posted on the legislature’s website before it was scheduled for its first committee hearing on Thursday afternoon.

Another sign of how fast it was introduced: Despite its wide-ranging impacts, only two people showed up to testify on the bill during the 20-minute hearing. They both advocated for the measure.

“I know that it’s all come kind of fast and furious,” Rep. Yadira Caraveo, a Thornton Democrat who is leading the push for the bill, said during the hearing.

Legislative fiscal analysts believe the proposed tax hike would net the state about $86 million in the 2020-21 fiscal year, which begins in July. In the following fiscal year, the state would collect more than $173 million.

State Rep. Julie McCluskie, a Dillion Democrat and prime sponsor of the bill, said she hopes the bill will help bolster the state’s ailing budget, which has taken a major hit as a result of the coronavirus crisis. At first, revenue generated by the taxes will go toward backfilling the state’s coffers.

After that, revenue from the taxes would be distributed to fund health care, tobacco education, preschool and other programs.

If voters approve the tax increase, it will start being enforced in 2021.

Supporters of the measure say it will help drive down tobacco use.

The bill passed its first hurdle, the House Finance Committee, within about 20 minutes and on a 6-to-5 vote. Republicans voiced opposition to the speed at which it was released.

 “We got this bill after we even sat down in here. It’s 43 pages. I just can’t support it right know. It sounds good but I just can’t support it right now,” said Rep. Janice Rich, a Grand Junction Republican.

The bill comes after a similar attempt to ask voters to raise cigarette taxes and enact a nicotine tax last year failed. Democrats in the Colorado Senate rejected the bill in the final days of the 2019 lawmaking term, in part because of concerns that it was regressive.

Last year’s legislation had the support of Gov. Jared Polis. The tobacco industry lobbied heavily against the measure.

This is a developing story that will be updated.

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