A Guide to Title IX and Its Application Presented by: Sandi Pearson Tarski Attorney at Law
www.WalshAnderson.com
The information in this handout was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.
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A Guide to Title IX and Its Application I.
What is Title IX?
Title IX is a federal law that prohibits discrimination in the educational setting on the basis of sex. It prohibits discrimination between male and female students in the context of educational programs and activities, including athletics. Stated another way, no student should be excluded from participation in, denied the benefits of or discriminated against in any education program or activity receiving Federal financial assistance. 1 Regulations have been established which effectuate Title IX and provide guidance in this area. 2
II.
Does Title IX apply to Dallas ISD?
Yes, Title IX applies to Dallas ISD. All public and private education institutions that receive any Federal funds must comply with Title IX. 3 The Department of Education’s (DOE) Office for Civil Rights (OCR) is the Federal agency responsible for enforcing Title IX in schools that receive federal funds from the DOE.
III.
Who can make a complaint under Title IX?
Anyone who believes there has been an act of discrimination on the basis of sex against any person or group in a program or activity which receives Federal financial assistance may file a complaint with OCR under Title IX. The person or organization filing the complaint need not be a victim of the alleged discrimination but may complain on behalf of another person or group.
IV.
What is prohibited by Title IX?
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex, including sexual harassment, in education programs and activities. 4 A.
When talking about discrimination based on sex, what does “sex” include? • • • •
B.
Sex/Gender (male/female) Gender stereotypes (the behavioral and physical traits of a student as they relate to gender stereotypes) Pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom Sexual orientation (maybe, probably…) What may constitute discrimination under Title IX? 1. Inequitable programs and activities Title IX is intended to ensure that all students, regardless of their gender, have equitable access to education programs, including extracurricular activities such as athletics, band, and student clubs.
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a. Education Programs In general, school districts cannot assign students to separate classrooms or activities, or prevent them from enrolling in a course of their choice, on the basis of the student’s sex. Exceptions: Some sex segregation of students is allowed under certain circumstances. Allowable exceptions to the ban on sex segregation include: •
Students may be separated by sex in PE classes when the sport or activity involves bodily contact (e.g., wrestling, boxing, rugby, ice hockey, football, and basketball).
•
Ability grouping in PE classes as determined by objective standards of individual performance developed and applied without regard to sex is allowed.
•
Some portions of classes that are exclusively addressing human sexuality may be conducted in separate male and female sessions.
•
Music programs may have requirements based on vocal range or quality, which could result in all-male or all-female choruses. 5
If the District operates separate educational programs or activities for members of each sex as the exceptions above describe, any separate courses, services and facilities must be comparable. Examples of questionable situations include the following: in male choral groups voice coaches are provided but no such opportunity is provided to female students; providing better facilities or more equipment to male PE students than to female PE students. b. Single-sex classes or activities If a school district operates a non-vocational coeducational elementary or secondary school, the school may provide non-vocational single-sex classes or extracurricular activities if certain requirements are met. 1. The class or activity must be based on the District’s important objective; a. To improve education achievement or b. To meet particular identified educational needs of its student and the single sex nature of the class is substantially related to achieving that objective; 2. The District implements its objective in an evenhanded manner; 3. Student enrollment is completely voluntary; and
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4. The District provides to all other students a substantially equal coeducational class or extracurricular activity in the same subject or activity. 6 A recent case provides guidance on implementing single-sex classes and addresses what is meant by “voluntary” enrollment. In Doe v. Wood County Bd. of Educ., 888 F. Supp.2d 771 (S.D.W. Va. 2012), a middle school adopted a single-sex program, where reading, math, science and social studies classrooms were separated by gender and other subjects remained coeducational. A mother and her three daughters who attended the middle school filed a lawsuit claiming violations of the Fourteenth Amendment and Title IX. There were questions as to whether the voluntariness of the program and the substantial equality of coeducational classes were in line with the regulations established by the Department of Education. In this case, parents could “opt out” of participation, but the court said that was insufficient to meet the threshold of "completely voluntary." The court held that "completely voluntary" required parents or guardians to give affirmative consent. Because the students' participation was not completely voluntary, having them to remain in the single-sex classes was a continued violation of Title IX. The decision to offer non-vocational single-sex classes or extracurricular activities should not be made at the campus level. Instead, in Dallas ISD the decision to offer single-sex classes and activities should be made at a higher administrative level consistent with the following advisory to assist in maintaining compliance with Title IX requirements: •
The school must establish two important objectives upon which to base a same-gender class or extracurricular activity. o Important Objective I – to improve educational achievement of its students through the schools overall established policy to provide diverse educational opportunities. Board Policy AE establishes the academic achievement of students as the highest priority and incorporates the Texas Public Education System’s goals and objectives found in AE (EXHIBIT). o Important Objective II – to meet the particular, identified educational needs of the school’s students. The samegender nature of the class or extracurricular activity must be substantially related to achieving the school’s important objective.
•
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Implementation of the important objective of the same-gender class or extracurricular activity must be even-handed with
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respect to male and female students and student participation must be completely voluntary. •
All students, whether or not enrolled in a same-gender class, must be provided a substantially equal coeducational class or extracurricular activity in the same subject or activity.
•
The school must ensure that the same-gender classes or extracurricular activities are based on genuine justifications, such as research-based instruction, peer-reviewed studies, statistics, and the development of creative and innovative techniques in instruction consistent with the goals and objectives found in AE (EXHIBIT). The school shall not rely on overly-broad generalizations about the different talents, capacities, or preferences of either gender.
•
After establishing same-gender classes or extracurricular activities, the regulations require the school to conduct periodic self-evaluations of the same-gender classes or activities at least once every two years. A one-year program must self-evaluate at the end of the one-year period. The self-evaluation should document that there is a substantial relationship between the same-gender nature of the class or extracurricular activity and the achievement of the important objective. If the important objective has not been achieved, the justification for maintaining same-gender classes or extracurricular activities at the school will be invalid.
Should a campus have a question about a single-sex program or activity, the campus administrator should contact Dr. Ann Smisko, Chief Academic Officer. Factors to be considered in determining whether classes or extracurricular activities are substantially equal include the following: • • • • • • •
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Policies and criteria of admission Education benefits provided (includes quality, range and content of curriculum and other services) Quality and availability of book, instructional materials and technology Qualification of faculty and staff Geographic accessibility Quality, accessibility and availability of facilities and resources Intangible features, such as reputation of facility 7
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As noted above, the District is required to conduct periodic evaluations (at least every two years) to make certain that single-sex classes or extracurricular activities are based on genuine justifications. 8 c. Single-sex schools and campuses The District may also operate a public nonvocational elementary or secondary school that excludes students from admission on the basis of sex, but only if the District makes available comparable courses, services, and facilities for students of both sexes. 9 For example, a single-sex school cannot offer the only high tech program in the District. Factors to be considered in determining whether the schools are substantially equal include all of those listed above for classes and extracurricular activities, with quality and range of extracurricular offerings as an additional factor. 10 d. Athletics In the area of athletics, the Department of Education looks at factors such as these when determining Title IX compliance: 1. Whether the available sports effectively accommodate the interests and abilities of members of both sexes; 2. Equitable equipment, supplies and practice facilities; 3. Scheduling of games and practice times; 4. Travel and per diem allowance; 5. Opportunities to receive coaching and academic tutoring; 6. Assignment and compensation of coaches and tutors; 7. Provision of locker rooms, practice and competitive facilities; 8. Provision of medical and training facilities and services; 9. Provision of housing and dining facilities and services; and 10. Publicity. 11 Thus, under the OCR regulations, a district could violate Title IX by providing inferior facilities, coaching, or equipment to female teams; scheduling and reserving the most desirable practice and game times for male sports; or failing to field teams in sports and levels of competition that effectively accommodate the interest and abilities of female students. OCR uses a three-part test to determine whether a school district’s athletic programs are in compliance with Title IX. School districts demonstrate athletic compliance with Title IX by meeting one part of the three-part test: Part one - Providing athletic participation opportunities that are substantially proportionate to the enrollment for male and female students. Here, a comparison may be made between the percentages © Walsh Anderson 2013
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of male and female athletes to the percentages of male and female students enrolled. OR Part two - Demonstrating a continual expansion of athletic opportunities for females. OCR will look for a pattern of adding programs over the years which benefit female students. They may also look for instances of cutting female programs without adding new ones. OR Part three – Showing full and effective accommodation of the interests and ability of female students. OCR will expect the school to provide female students with opportunities that match their interests and abilities. The following questions may arise: Is there some unmet interest in a particular sport? Is there sufficient ability to sustain a team in the sport? Is there a reasonable exception of competition for the team? If the answer to all three questions is “yes” OCR will find that there has not been full and effective accommodation of the interests and ability of female students. It should also be noted that school districts may provide separate toilet, locker room and shower facilities for boys and girls. 12 The facilities must be comparable, but contrary to what some may argue, there is no requirement that they be identical or equal. 2. Discrimination and sexual harassment Title IX protects students from discrimination and harassment connected to any of the academic, educational, extracurricular, athletic, and other programs or activities of schools, regardless of the location. Title IX protects both male and female students from discrimination and/or sexual or gender-based harassment by any school employee, another student, and a non-employee third party. NOTE also that bullying may also involve sexual harassment. Bullying, as defined by Texas Education Code § 37.0832 (a) covers much broader circumstances. 13 To the extent the conduct toward the student being bullied is based on that victim-student’s gender, then sexual harassment may also be present. As more fully set forth below, freedom from bullying is addressed in Board policies FFI (LEGAL) and (LOCAL). a. Employee-to-student •
Quid pro quo: An employee conditions an educational decision or benefit on the student’s submission to welcome or unwelcome sexual conduct or advances. It is irrelevant whether the student resists or submits or even initiates the conduct.
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•
Hostile environment: An employee’s harassing or discriminatory conduct is so severe, persistent, or pervasive that it (1) affects the student’s ability to participate in or benefit from an educational program or activity, or otherwise adversely affects the student’s educational opportunities; or (2) creates an intimidating, threatening, hostile, or abusive educational environment.
In determining whether a hostile environment has been created, the OCR lists the following considerations: • • • • • •
How much adverse effect on student’s education; Type, frequency, duration of conduct; Identity, age, and sex of harasser(s) and victim(s) and relationship between them; Number of harassers and victims; Size of school, location of incidents, context of incidents; and Whether other incidents occurred at the school involving different students.
b. Student-to-student Hostile environment: See definition above. Sexual harassment by a fellow student encompasses bullying, dating violence, sexual advances, comments or contacts, and retaliation. c. Third party-to-student Hostile environment: See definition above. Claims of district liability based on sexual harassment of a student by a third party are rare. 3. Retaliation To have a viable claim of retaliation the allegations do not have to be true; instead, the individual only has to show that (1) s/he held a good faith belief that the District was not in compliance with Title IX; (2) s/he made some form of complaint or report to District officials; and (3) s/he suffered retaliation as a result of her/his advocacy. Individuals who report, complain, make allegations of, or participate in investigations of violations of Title IX, gender inequity, sexual harassment, unequal pay, or any other form of sex discrimination recognized by Title IX are engaging in protected activity.
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Keep in mind that employees and community members may also have a retaliation claim if they, in good faith, lodge a complaint or make a report that the District’s practices violate Title IX, discriminate based on sex, ignore sexual harassment complaints, etc.
V.
Is there a particular person in the District to oversee Title IX concerns?
Yes, school districts are required to designate a least one employee to coordinate its efforts to comply with Title IX. 14 In Dallas ISD the identity of the chosen individual, known as the Title IX Coordinator, is found in Board policy FB (LOCAL). Currently, Mary McCants is the Title IX Coordinator for Dallas ISD. 15 Duties of the Title IX Coordinator include coordinating efforts to comply with the law and overseeing any investigation of complaints alleging noncompliance with Title IX or alleging any actions which would be prohibited by Title IX. The District is required to notify all students and employees of the name and contact information for the Title IX Coordinator. As addressed below, this is typically communicated through Board policy, the Employee Handbook and the Student Handbook.
VI.
Does Dallas ISD have other Board policies which address Title IX concerns?
Yes. The FB series in Board policy addresses Title IX concerns. FB (LEGAL) summarizes the law in this area, and FB (LOCAL) provides details on how Title IX concerns are to be addressed in Dallas ISD. In addition, certain types of Title IX complaints are addressed under FFH (LOCAL). Additional policies which also address the complaint and investigation process in regard to Title IX, including the anti-harassment policies at FFH, are addressed below. A. FB (LEGAL) and (LOCAL) FB (LEGAL) confirms the legal standards which apply in providing an equal educational opportunity to all students. This policy addresses nondiscrimination based on a number of protected categories, including sex. FB (LEGAL) confirms that for any district receiving Federal financial assistance, no student should be excluded from participation in or denied the benefits of any educational program or activity on the basis of sex and also confirms that sexual harassment of a student is discrimination on the basis of sex under Title IX. FB (LEGAL) notes that school districts are required to establish grievance procedures for resolution of allegations based on sex discrimination. Legal issues detailed in policy include the following: • •
The District shall not provide any course or otherwise carry out educational programs or activities separately on the basis of sex, except as otherwise permitted by law and described above. The District shall not require or refuse participation in educational programs or activities on the basis of sex.
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• •
Rules can’t be established concerning a student’s parental, family or marital status that results in treating students differently based on sex. Policy also restates the law on same sex classes, activities and schools as addressed above.
FB (LEGAL) confirms that retaliation shall not be directed toward a person who attempts to assert a right protected by Title IX or who cooperates with an investigation of a complaint. FB (LOCAL) provides the process established by Dallas ISD for assessing and responding to Title IX complaints pertaining to discrimination on the basis of sex. While sexual harassment is also considered prohibited discrimination on the basis of sex under Title IX, Dallas ISD Board policy provides that complaints of “sexual harassment or offensive intimidating conduct of a sexual nature” are addressed under Board policy FFH (LOCAL) rather than FB (LOCAL). The procedures to be followed under FB and FFH are quite different. Procedures under both policies are more fully addressed below. B. FFH (LEGAL) and (LOCAL) The FFH series addresses student welfare and the right to be free from discrimination, harassment and retaliation based on race, color, ethnicity, religion, national origin, gender, disability, sexual orientation, genetic information genetic identity or gender expression. As noted above, sexual harassment of students constitutes discrimination on the basis of sex under Title IX. Procedures for assessment, investigation and response to complaints of sexual harassment are addressed in FFH (LOCAL). Parents and students who are not satisfied with the outcome of the investigation may file an appeal under Board policy FNG (LOCAL). C. FFI (LEGAL) and (LOCAL) As noted above, bullying may also involve sexual harassment. To the extent the conduct toward the student being bullied is based on that student’s gender, sexual harassment may also be involved. The FFI series addresses student welfare and the right to be free from bullying. FFI (LEGAL) provides as follows: “Bullying" means engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a schoolsponsored or school-related activity, or in a vehicle operated by the District and that: 1.
Has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or
2.
Is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.
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This conduct is considered bullying if it: 1.
Exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and
2.
Interferes with a student’s education or substantially disrupts the operation of a school.”
If the bullying conduct constitutes prohibited harassment or discrimination based on gender, then the investigation of the conduct falls under Board policy FFH. In that case, the procedures for assessment, investigation and response to complaints of sexual harassment are addressed in FFH (LOCAL). Parents and students who are not satisfied with the outcome of the investigation under FFH (LOCAL) may file an appeal under Board policy FNG (LOCAL). A. FNG (LEGAL) and (LOCAL) FNG (LEGAL) also confirms that “a district that receives Federal financial assistance, directly or indirectly shall adopt and publish grievance procedures providing for prompt and equitable resolution of student complaints, alleging any action prohibited by Title IX of the Education Amendments of 1972.” FNG (LOCAL) states that complaints of discrimination or harassment based on gender or sexual orientation, gender identity or gender expressions are addressed under Board policy FFH rather than FNG (LOCAL) which addresses most types of parent/student complaints. But remember – as noted above – complaints relating to sexual discrimination are to be addressed under the provision set forth in Board policy FB (LOCAL). B. FNE (LEGAL) FNE (LEGAL) confirms that students shall not be discriminated against on the basis of pregnancy or child birth. Districts may require the student to provide medical certification in order to participate in activities. Also, districts may operate a separate program or activity for pregnant students, but that program or activity must be comparable to what is offered to non-pregnant students. 16
VII. What information is shared with staff and parents/students about Title IX? There are a number of resources accessible to staff, students, parents and the public in regard to Title IX concerns. A. Board Policy The Board policies referred to above are available online to anyone by accessing the District’s website at http://www.dallasisd.org. The following link will take you directly to Board policy for Dallas ISD: http://pol.tasb.org/Home/Index/361.
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B. Student Code of Conduct and Student Handbook The Student Code of Conduct (SCOC) and Student Handbook (SH) include information on prohibited conduct, including discrimination on the basis of sex and sexual harassment. Procedures for reporting these types of complaints are found within the SCOC and the SH. The contact information for the District’s Title IX Coordinator appears in multiple locations. The SCOC and SH are accessible through the District’s website. C. Employee Handbook The Employee Handbook also includes a section on “Student Issues” which addresses Title IX. The section dealing with equal educational opportunities includes the contact information for the District’s Title IX Coordinator, the individual to whom questions or concerns about discrimination against students based on sex and sexual harassment of students should be directed. 17 The Employee Handbook is also accessible through the District’s website.
VIII. When may a district be liable under Title IX? A district may be held liable under Title IX if there is a finding of any form of sex or genderbased discriminatory treatment in the areas addressed above. A. Inequitable Programs and Activities As discussed above, inequitable programs and activities may arise in the context of educational programs, academics and athletics. The focus here is on inequity between the sexes in the administration of the particular program. Note also that booster club activities may bring liability to the District if such activities result in gender inequities in athletics or other booster-aided programs. Below you will find a few examples of lessons learned the hard way. Note that while many of the cases involve athletics, the same principles apply to educational programs and activities. 1. Female students were excluded from membership in the National Honor Society after becoming pregnant and having children out of wedlock. The students brought a Title IX action against the school administration. There was evidence that the NHS selection committee considered the premarital sexual activity of the female students who had been pregnant, but did not consider or investigate the sexual activity of other male or female students who had been offered membership. The court ordered the school district to admit into NHS the female students who had been pregnant, as the school district had offered membership based on a discriminatory policy and the girls continued to be good, AA@ average students. Chipman v. Grant County Sch. Dist., 30 F.Supp.2d 975 (E.D. Kentucky 1998).
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2. Principal implemented the single sex program at the school as part of an experiment for his doctoral dissertation. Parent filed suit seeking an injunction to stop the school district from offering the single-sex classes, claiming the decision to participate was not voluntary and claiming the single-sex classes diminished her daughter’s education in a coed class because: there were significantly fewer coeducational classes offered; coed classes tended to have a higher percentage of students with physical and mental disabilities; there were interruptions in the coed classes which did not occur in the single-sex classes. The lower court failed to address the parent’s Title IX violation claims and did not grant the injunction sought, but instead granted in favor of continuing the program with some modifications. The court of appeals sent the case back to the district court to address whether the single-sex classes meet Title IX standards. Doe v. Vermilion Parish School Bd., 421 Fed. Appx 366 (5th Cir.2011) 3. The boys played basketball during the prime time spots on Friday and Saturday and the girls were scheduled for school nights. The boys had the band and cheerleaders present but the girls did not. The girls suffered academically due to late games on school nights. The school district tried to justify this practice based on “tradition.” The court considered whether the disadvantage to the girls’ basketball team had been “offset” elsewhere and they came up empty. The court noted that the school district had not “pointed to any areas in which female athletes receive comparably better treatment than male athletes at their schools…” They had been previously warned by OCR but nothing had changed much since then. The court of appeals reversed a summary judgment that had been entered by the District Court in the school district’s favor and sent it back for further proceedings. Parker v. Franklin County Community School, 2012 WL 266870 (7th Cir. 2012) 4. Discontinuance of the girls’ softball program was challenged under Title IX. There was a disparity in male vs. female involvement and there was not a continuing practice of program expansion, and the interest and abilities of women were not fully and effectively accommodated. The university was ordered to hire a coach, prepare a field for softball use and provide equipment and uniforms. Roberts v. Colorado State Bd. Of Agric., 998 F.2d 824 (10th Cir. 1993) 5. When comparing the involvement of girls and boys in athletics, competitive cheering is not presumptively recognized as a sport for purpose of Title IX. Biediger v. Quinnipiac Univ., 728 F.Supp2d 62 (2010) 6. Suit was filed claiming a Title IX violation when the university eliminated the men’s swim team. The court notes that men and women did not have to have parallel teams. In this case, even after eliminating the men=s swim team, male participation in varsity athletics continued to be more than substantially proportionate to their percentage in the student body while the women=s involvement in athletics was significantly lower than the percentage of women at the university. If the university had eliminated the women=s swim team, it would
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have been subject to a finding that it was in violation of Title IX. Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir. 1994) 7. Girls claimed disparity between baseball and softball programs including equipment and facilities. The school district provided equal funding for the boys= and girls= programs, but the boys received significant additional support from a booster club. The school district argued that it could not be held to be responsible if the fund-raising activities of one booster club are more successful than those of another. The court held that @It is the Defendant=s responsibility to ensure equal athletic opportunities, in accordance with Title IX. The funding system is one to which Defendant has acquiesced; Defendant is responsible for the consequences of that approach.@ The school district sought to remedy the gender-based inequities by imposing disadvantages on the facilities used by boys rather than improving the facilities used by girls. For example, the board decided to disallow use of the electronic scoreboard on the boys’ field until such time as the girls= field had a comparable scoreboard. The school board=s plan did not involve the expenditure of funds to remedy the inequities identified. The court concluded that the plan to impose disadvantages upon the boys= facilities rather than to implement improvements to girls= facilities was an improper Aseparate disadvantage@ and ordered the school district to take specific steps to move toward equity in facilities and programs. Daniels v. School Bd. of Brevard County, 995 F. Supp. 1394 (M.D. Fla. 1997) Recently, OCR reached agreements with four school districts, including Houston ISD, to ensure that girls get equal athletic opportunities. The National Women’s Law Center filed multiple complaints alleging discrimination of female students in violation of Title IX. The agreements reached require an assessment of unmet interests and abilities among female students and based on the results of the assessment, take steps to increase athletic opportunities for female students. As these examples demonstrate, whether dealing with educational programs and activities or athletics, situations must be reviewed on a case-by-case basis, looking at the specific details of the complaint, and applying the various factors outlined above in order to determine if a violation of Title IX has occurred. B. Sexual Harassment Liability hinges on the District’s knowledge of the harassment and its response to that knowledge, using the term “deliberate indifference.” Essentially, the District must know about the harassment and either completely ignore it, or take improper or insufficient action, and thereby allowing it to continue. A school district’s acts of deliberate indifference will generate liability only in circumstances where the district “exercises substantial control over both the harasser and the context in which the known harasser occurs.”
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1. Employee-to-student To establish district liability for sexual harassment by an employee, the student (plaintiff) must prove that an official of the school district, with authority to institute corrective measures on the District’s behalf, had actual notice of the teacher’s harassment and acted or failed to act with deliberate indifference. Liability for an employee’s acts of sexual harassment toward a student is more common, as districts retain and exert a significant amount of control over employees and will be more likely to have notice of their misconduct. 2. Student-to-student To establish a legal claim of student-on-student sexual harassment in the courtroom, a plaintiff student must show that: (1) the sexual harassment was so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school; (2) the District had actual knowledge of the sexual harassment; and (3) the District acted with deliberate indifference to the harassment. In the context of a student-to-student sexual harassment claim, the deliberate indifference must subject the student to harassment, that is, at a minimum, it must cause the student(s) to undergo harassment or make them liable or vulnerable to it (i.e., the District ignored a report of harassment and the harassment continued). Note that while this is the legal standard applicable in the courtroom, OCR has a lower standard and the District might be subject to action by OCR even if it appears to have a legally defensible position. 3. Third party-to-student The District’s liability for sexual harassment suffered at the hands of a third-party, non-employee will depend on the amount of control the District exerts over the third-party and the circumstances surrounding the harassment. Generally, when we talk about liability under Title IX we are talking about liability to the entity, such as a school district, college or university. Title IX does not authorize lawsuits against school officials, like principals and teachers. But be aware that while individuals typically have immunity in these types of claims, liability is not out of the question. Based on recent court decisions, plaintiffs may pursue other legal avenues in pursuit of individual liability. For that reason, it is important that administrators are aware of Title IX requirements and act promptly in the event of a suspected or reported violation. IX.
How can the District avoid or minimize the chance for liability?
There are a number of preventive measures a district can take to avoid complaints and minimize the chance for liability.
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A. Review District programs and activities Review programs and activities, including educational programs on your campus, to make certain they are in compliance with UIL Rules, state laws and DOE regulations. While the District may have individuals or committees with oversight responsibilities, ultimately it is your job to oversee the programs and activities on your campus, conducting periodic assessment and review to determine areas in need of improvement to ensure equitable treatment of boys and girls. B. Review and be familiar with your policy Review your policy so that you are familiar with the legal requirements and internal District expectations and procedures. In the event a complaint is made, be sure to follow the procedures outlined in Board policies FB and FFH. C. Respond quickly Do not ignore any complaints of Title IX violations. A report should be made promptly to the Title IX Coordinator. If the complaint pertains to sexual harassment, the school district’s liability hinges on its response to such harassment. The response will be used to gauge whether the District was deliberately indifferent, or acted reasonably in light of the known circumstances. If a district official, with authority to institute corrective measures on the District’s behalf, has knowledge of acts of harassment or if a report or complaint of sexual harassment is brought to a district official, the District must act swiftly to (1) assess and investigate the allegations, and if necessary (2) take steps to prevent further harassment. D. Conduct a thorough investigation As set out in FFH (LOCAL), after a report of sexual harassment is received, the appropriate district official must first determine whether the allegations, if true, would constitute prohibited conduct. Note that at this point, it does not matter whether the allegation is true or false; instead, what matters is whether it would be prohibited conduct if the allegations were true. So if the report involves something that would constitute prohibited conduct, the district official must immediately authorize or undertake an investigation. The investigation must be thorough, and may require getting statements from the accuser, the reporting person, and any other witnesses. Confidentiality issues may arise here regarding disclosure of the identity of the victim and/or witnesses. Whether the identity of these individuals should be disclosed to the accused in a given situation will depend on the specific facts and circumstances. For other types of Title IX complaints a review should immediately be conducted regardless of whether an informal or formal complaint has been initiated pursuant to FB (LOCAL). A complaining party may choose to go directly to OCR rather than follow the process outlined in policy. In responding to OCR the District should be
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able to show due diligence in responding to concerns that have been brought to its attention. E. Create strong documentation Documentation which establishes that a prompt and thorough investigation was completed will help to establish that the District properly responded when it received knowledge of the alleged violation of Title IX. Normal records retention schedules should be followed. Where appropriate, significant witness statements should be given in writing, dated and signed by the witness. The investigator should maintain accurate notes regarding what investigatory steps were taken (on what date), the names of witnesses interviewed, what documents or information was obtained, etc. Remember: once documentation of a District investigation is created regarding a particular student or students, that documentation is an “education record” for purposes of the Family Educational Rights and Privacy Act (FERPA), and is protected from disclosure. [See Board policy FL (Local)]. F. Take preventive steps If dealing with a sexual harassment complaint, it may be necessary to separate the accuser and the accused during the pendency of the investigation. This may mean that an accused employee is placed on administrative leave with pay while the investigation is pending, students involved are monitored more closely, or the accused student is separated from the accusing student throughout the instructional day to the greatest extent possible. G. Do not retaliate Before taking any action against a person who has made a complaint or report to the District, ensure that a legitimate basis for the action or decision exists. The action taken must be in line with the District’s past practices. You will be aided by creating documentation of the legitimate, nondiscriminatory reason for the action. If the action is challenged, the District should be able to produce some documentation to establish that the claimed reason for the decision was also the actual reason. Also be mindful of the timing of your decisions. When a claim of retaliation is made, the timing of the protected activity in relation to the retaliation (adverse action by the District) can be significant. For example, if the high school principal complains on Tuesday that the District has been ignoring student sexual harassment reports, and on Wednesday the principal is reassigned to the position of assistant principal at the DAEP, the timeline appears suspicious, and may raise a presumption that the reassignment was based on the principal’s protected activity. In order to rebut this presumption of improper motive resulting from the timeline, the District would need to put forth evidence to establish the legitimate, nondiscriminatory reason for the © Walsh Anderson 2013
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reassignment. However, because of the unfortunate timeline, documentation of the principal’s performance issues may not be enough to overcome the presumption. Unless the District could show solid documentation that the reassignment decision had been made prior to the protected activity, the best course of action for the District at the time of the principal’s complaint may have been to delay the reassignment. H. Educate employees, parents and students Regarding sexual harassment complaints, students are provided with the Student Code of Conduct and Handbook which sets out appropriate behaviors, including bullying, harassment, dating violence, etc. Additional training on sexual harassment or other discriminatory conduct may be necessary if the District or a specific campus begins to see an increase in disciplinary incidents of this nature. The Employee Handbook also includes provisions addressing the proper handling of sexual harassment complaints or reports from students. It is vital that employees who receive such complaints or reports understand their obligation to make campus administrators aware of the situation immediately. Additionally, depending on the nature of the report received, the employee may be required by state law to report it as child abuse to the Texas Department of Family and Protective Services, or face criminal and disciplinary penalties. Principals should ensure that all employees on their campus receive annual training. This can usually be accomplished at a staff meeting. The Dallas ISD Legal Department provides yearly reminders regarding training requirements and also provides materials to each campus. Training and educating employees and students is vital to avoiding conduct which may constitute sex discrimination and ensuring students are aware of their rights under Title IX. Additionally, a strong and consistently implemented training program may decrease a district’s liability in certain situations.
X.
What happens if a complaint is made?
As reflected above, the procedures to be followed for Title IX sexual complaints are set forth in Dallas ISD Board policy FB (LOCAL), except that for complaints alleging sexual harassment or offensive intimidating conduct of a sexual nature which invoke the procedures set forth in FFH (LOCAL). A. What are the procedures for Title IX sexual discrimination complaints other than sexual harassment complaints? 1. See FB (LOCAL). You should be familiar with the details set forth in FB (LOCAL) which provides procedures and timelines for complaints as well as responses.
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2. Informal process may be initiated: • • • •
Complaints shall be presented orally to the teacher or principal within 14 school days of the time when the student first knew or should have known of the situation giving rise to the complaint. A student may be represented by parents or others at any level. The teacher or principal and student shall attempt to resolve the matter informally. If the student is not satisfied, a formal Level One complaint can be filed.
3. Level One Complaint: •
• • • •
A written Level One complaint must be filed in writing, with the principal, within 14 school days after the informal meeting. It shall include: a statement of the complaint and evidence in support thereof; relevant District policy and administrative regulations; remedy requested; signature of student. Within 7 school days after receipt of the written complaint the principal must notify the student in writing of the date and time of the Level One hearing. The Level One hearing must be held within 14 days of receipt of the written complaint. The principal shall issue a written decision within 14 days after receipt of the complaint. If the student is not satisfied, a Level Two complaint can be filed.
4. Level Two Appeal: • • • • • • • •
A written Level Two appeal must be filed with the Superintendent or designee within 14 school days. Within 7 school days after receipt of the written appeal, the Superintendent or designee must notify the student in writing of the date and time of the Level Two hearing. The Level Two hearing must be scheduled within 10 days of receipt of the appeal. In addition to the complaint filed at Level One, the student shall file any additional information in writing with the Superintendent or designee no later than 7 school days prior to the date scheduled for the hearing. A record shall be made of the Level Two hearing. The student’s failure to attend the Level Two hearing is deemed acceptance of the Level One decision. A decision shall be rendered in writing within 14 school days after the hearing. If the student is not satisfied, a Level Three complaint can be filed.
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5. Level Three Appeal: • • • • •
A written Notice of Appeal to Level Three appeal must be filed with the administrator overseeing the Office of Board Services within 14 school days. Within 7 school days after receipt of the written appeal, the administrator must notify the student in writing of the date and time of the hearing before the Board. The complaint filed at Level Two and the tape or transcript of the Level Two hearing shall form the basis of the appeal before the Board. At Level Three no new evidence shall be presented. Each side shall be entitled to make an oral argument based on what is on the Level Two tape. Time limits will be set. A decision shall be rendered in writing within 14 school days after the hearing.
As noted above, FB (LOCAL) specifically addresses how to respond to a complaint brought to the District’s attention by a student complaining of discrimination on the basis of sex. There may be situations which arise where alleged discrimination on the basis of sex is brought to the District’s attention, yet no informal or formal complaint is filed. Do not ignore those concerns! All concerns of alleged Title IX violations – even those which do not involve the complaint process under policy FB – must be addressed by the District. Further, it is recommended that untimely complaints of sex or gender discrimination not be summarily dismissed. OCR would not look favorably on such action. The District should instead fully investigate any claim of discrimination based on sex. In the event of an OCR complaint, OCR will be looking to see how the District responded to allegations brought to its attention. A thorough review of the education program or activity should be conducted, with emphasis on the factors addressed above. B. What are the procedures for Title IX complaints of sexual harassment? Board policy FFH (LOCAL) addresses the complaint process for complaints of sexual harassment. Unlike FB (LOCAL), Board policy FFH (LOCAL) does not set out a step-by–step or “level” process in addressing the allegations. But do not be mistaken – allegations of sexual harassment must be given prompt attention. Simply put, FFH (LOCAL) requires that complaints of sexual harassment be taken seriously, regardless of whether the nature or extent of the complaint. Allegations of sexual harassment should be promptly reported and investigated, and prompt and effective response should be made to the allegations. You should read and be familiar with FFH (LOCAL). Details in policy relating to allegations of sexual harassment and the District’s response thereto include the following: 1. All allegations of sexual harassment are to be reported to the student’s principal, Student Services, or the Child Abuse and Domestic Violence Prevention Office.
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2. A student is not required to report the harassment to the person who is the subject of the complaint. 3. Students/parents may request information regarding available counseling or may proceed with filing a complaint. 4. The parents of a student complaining of sexual harassment shall be notified of the complaint. 5. An employee who learns that a student is being sexually harassed by another student has a duty to report the information to the principal. Failure to report may result in disciplinary action against the District employee. 6. If the information may be reasonably characterized as known or suspected child abuse or neglect, then a report must be made to the appropriate authorities as provided by law and FFG (LEGAL). 7. An employee who suspects a student is being sexually harassed by a school employee shall inform the principal, an immediate supervisor and the Child Abuse and Domestic Violence Prevention Office. 8. The allegations are to be promptly investigated and addressed. 9. The confidentially of the reporting student will be maintained to the extent possible. 10. If an oral/verbal complaint is made, it should be reduced to writing. 11. If the complaint is against a student, prompt disciplinary action should be taken against the student found to have engaged in prohibited conduct. 12. If the complaint is against an employee, administrative action shall be taken. The action to be taken will depend on the seriousness of the alleged misconduct and the employee’s overall record. Action may include disciplinary warning, suspension, transfer, demotion, discharge, filing a child abuse charge, or other action in accordance with law. 13. There shall be no retaliation against a student, who in good faith reports sexual harassment. 14. If a complaint has been filed with OCR, the matter must be referred to the District’s Title IX Coordinator. In regard to the investigation of a sexual harassment complaint under FFH (LOCAL), keep in mind that the District must respond to the allegations regardless of whether the alleged harassment took place on school property or during school hours. In its Dear Colleague letter dated April 4, 2011, OCR outlined its expectations when a school district is made aware of allegations of sexual harassment. OCR points out that “the sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” The letter makes clear that a school district may have an obligation to investigate a complaint even if it occurred off school grounds, and must also investigate these types of allegations even if the victim does not bring forward a complaint. Immediate steps should be taken to protect the alleged victim while an investigation occurs. This may involve separating students by class period, lunch assignment, or even by campus. A thorough, fair and impartial investigation should then take place. This will no doubt involve interviews with the alleged victim, alleged perpetrator, and witnesses. Upon conclusion of the investigation, a determination should be made as to what action, if any, © Walsh Anderson 2013
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should be taken. While FFH (LOCAL) does not require the preparation of a written report setting forth the findings of the investigation, it is recommended that such a report be made. Typically, you will then arrange a time to meet with the parents of the alleged victim and the alleged perpetrator to share the outcome of the investigation. Written notice will go to the parents of the alleged victim and the alleged perpetrator regarding the outcome of the investigation. But remember – your response should not divulge confidential student information protected by FERPA. Include the following in your letters to the victim/perpetrator: • • • • • •
Date complaint received Brief description of complaint/allegations You have concluded your investigation Summary of investigative findings – state your findings of what occurred Include a statement that you were/were not able to substantiate that sexual harassment had occurred Describe what action will be taken
Know that OCR will be looking for evidence that “prompt and effective” steps were taken in response to the allegations. Examples of the “prompt and effective” steps are detailed in OCR’s April 4, 2011 Dear Colleague letter and include the following: • • • • • • • •
Provide an escort for the complainant between classes or activities; Make sure the students are not attending the same class; Move one of the students to a different part of the building or to a different campus; Provide counseling services; Provide medical services; Provide academic support services such as tutoring; Allow re-take of a course or withdrawal without penalty; and Review disciplinary actions against complainant to see if there is a causal connection between the harassment and the misconduct that my have led to the complainant being disciplined.
It may also be necessary to provide remedies to the student population as a whole. Some examples of possible action identified by OCR include the following: • • • • •
Offer counseling or related services to students affected by sexual harassment and notifying students of the availability of such; Designate a specific person on the campus to be the “on call” person to assist if complaints arise; Training for staff; Training for law enforcement personnel; Train all employees on recognizing and responding to sexual harassment;
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• •
Inform students of options to notify law enforcement, including school and local police, and the option to be assisted by school personnel in notifying those authorities; and Educate students on sexual harassment and violence including publication on how to make a complaint.
The bottom line is that OCR expects school personnel to be proactive in recognizing, responding to and preventing sexual harassment among students.
1
20 U.S.C. § 1681 (a); 34 C.F.R. § 106.31
2
34 C.F.R. Part 106
3
34 C.F.R. § 106.11
4
Note that employee claims of discrimination on the basis of sex fall under Title VII of the Civil Rights Act of 1964.
5
34 C.F.R § 106.34 (a)
6
34 C.F.R. § 106.34 (b)
7
34 C.F.R. §106.34 (b) (3)
8
34 C.F.R § 106.34 (b) (4)
9
34 C.F.R. § 106.34(c) (1)
10 11
12 13
34 C.F.R. § 106.34(c) (3) 34 C.F.R. § 106.41 (c) 34 C.F.R. § 106.33 In TEC § 37.0832 (a), bulling is defined as follows: (a) In this section, “bulling” means, subject to subsection (b), engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a schoolsponsored or school-related activity, or in a vehicle operated by the district and that: (1) Has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the students’ person or of damage to the student’s property; or (2) Is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student. (b) Conduct described by Subsection (a) is considered bullying if that conduct: (1) Exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and (2) Interferes with a student’s education or substantially disrupts the operation of a school.
14
34 C.F.R § 106.8 (a)
15
The District is also required to designate at least one employee to coordinate efforts to comply with Section 504 and the ADA. The identity of the 504 and ADA coordinator may be found in Board policy FFH (Local).
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16
34 C.F.R. §106.40 (b)
17
The Employee Handbook also includes multiple references to policy and procedures addressing employees’ claims of sexual discrimination.
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