What We ll Cover. Title IX Atkinson, Andelson, Loya, Ruud & Romo

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations How Community College Districts Can Comply wit...
Author: Annabel Price
2 downloads 2 Views 1MB Size
How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

CCFC 2016 Annual Conference November 14-16, 2016

Presented by: Stephen M. McLoughlin, Senior Counsel Cerritos • Fresno • Irvine • Pasadena • Pleasanton • Riverside • Sacramento • San Diego

What We’ll Cover… 1. Title IX / State Equality Requirements – No Person Shall Be Denied the Benefits of Any Education Program or Activity.

2. Transgender Issues – New and Developing Law

3. Americans With Disability Act – Prohibits Discrimination Based on Disability.

1

Title IX 1. Overview of the Law –

Title IX and Its Implementing Regulations.

2. The Test –

Application of Title IX to Facilities.

3. Enforcement –

How OCR Reviews Alleged Violations.

4. Real World Issues –

Common Questions and Answers.

2

©2016 Atkinson, Andelson, Loya, Ruud & Romo 1

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Title IX: The Text No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. (Title IX of the Education Amendments of 1972 (20 U.S.C. Section 1681 et seq.) and related regulations (34 C.F.R. Part 106).)

3

Title IX: Misrepresentations

• Plymouth High School (Plymouth, Michigan). • Boys’ Baseball and Girls’ Softball. • Baseball Booster Club Raises Funds for New Bleachers and Scoreboard for Baseball Field. • OCR investigates complaint that facilities are unequal…

4

Title IX: Misrepresentations Softball Bleachers…

5

©2016 Atkinson, Andelson, Loya, Ruud & Romo 2

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Title IX: Misrepresentations Baseball Bleachers…

  

6

Title IX: Misrepresentations How it Was Reported…

Athletic Boosters Beware: Government Orders Michigan School to Tear Down Fund-Raised Improvements. Huffington Post: http://www.huffingtonpost.com/wendy-n-powell/athletic-boosters.html

ED Orders Michigan District Under Title IX to Tear Down Baseball Bleachers Built by Booster Club. National School Board Association: http://legalclips.nsba.org/2014/04/01/ed-orders-michigan-districtunder-title-ix-to-tear-down-baseball-bleachers-built-by-booster-club/

Department of Education Orders Plymouth High School to Tear Down Baseball Bleachers. Plymouth-Canton Patch: http://patch.com/michigan/plymouth-mi/department-of-education-ordrs-pymouthhigh-school-to-tear-down-baseball-bleachers 7

Title IX: Misrepresentations What Really Happened… OCR and the district entered into a “resolution agreement” requiring the district to provide equal facilities to softball. • “If booster clubs provide benefits and services to athletes of one sex that are greater than what the district is capable of providing to athletes of the other sex, then the district must take action to ensure that benefits and services are equivalent for both sexes”… • “The district has signed the enclosed resolution agreement, which…requires the district to: renovate the School’s varsity softball field to include a scoreboard and seating equivalent to what is provided at the School’s varsity baseball field.” 8

©2016 Atkinson, Andelson, Loya, Ruud & Romo 3

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Title IX: Misrepresentations Real Issues 1) Bleachers are Athletic Facilities? 2) Booster Clubs Must Share Funds? 3) If We Cannot Afford to Fix One Facility, Must We Ruin the Condition of Another? 4) What Does “Equivalence” Require Exactly? 5) Can We Work with OCR After the Resolution Agreement?

9

Discrimination that Violates Title IX 1. Sexual Harassment 2. Sexual Violence 3. Gender Discrimination 4. Unequal Pay 5. Pregnancy Discrimination (including temporary disability) 6. Unequal Distribution of Athletic Funds 7. Unequal Admissions 8. Unequal Financial Aid Practices 9. Marital or Family Status

10

Implementing Regulations 34 C.F.R. Part 106 1. Education Programs or Activities 2. Sports 3. Sexual Misconduct (Harassment & Violence) 4. Employment 5. Equal Access to Facilities 6. Admissions and Recruitment

11

©2016 Atkinson, Andelson, Loya, Ruud & Romo 4

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Code of Federal Regulations • 106.41(c): “Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the [enforcing agency] may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.” • Comes up often in Title IX complaints.

12

State Law Considerations • 5 Cal. Code Regs. § 4920: “No person shall on the basis of sex, sexual orientation [or] gender…be excluded from participation in, be denied the benefits of, be denied equivalent opportunity in, or otherwise discriminated against in interscholastic, intramural, or club athletics.” • 5 Cal. Code Regs. § 4921(a): “Local agencies may provide single sex teams where selection for teams is based on competitive skills.”

13

State Law Considerations • 5 Cal. Code Regs. § 4921(b): “When a local agency provides only one team in a particular sport for members of one sex but provides no team in the same sport for members of the other sex, and athletic opportunities in the total program for that sex have previously been limited, members of the excluded sex must be allowed to try out and compete with the local agency team. The same standards for eligibility shall be applied to every student trying out for a team, regardless of sex or sexual orientation or other protected group status.”

14

©2016 Atkinson, Andelson, Loya, Ruud & Romo 5

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

State Law Considerations • Ed. Code Section 221.7: similar to federal regulations concerning “equal opportunity” for male and female students. • Ed. Code Section 35179: prohibits “voluntary interscholastic athletic associations” from discriminating between male and female participants.

15

Implementing Regulations .

Regulations Affecting Facilities 1. Comparable Facilities 2. Education Programs or Activities 3. Athletics

16

1. Comparable Facilities .

34 C.F.R. Part 106.33 A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.

17

©2016 Atkinson, Andelson, Loya, Ruud & Romo 6

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Implementing Regulations .

34 C.F.R. Part 106.33 What is Comparable? Toilet, Locker Room, and Shower Facilities – Quality – Quantity – Suitability – Maintenance – Replacement – Availability

18

Comparable Facilities, Equipment & Supplies 1. Quality – General Appearance, age, aesthetics

2. Amount – If different amount, must justify (football needs protective gear)

3. Suitability – Meet needs of both teams (strength vs. stamina; size of lockers)

4. Maintenance and Replacement – Equivalent expenditures based on need

5. Availability – Share with JV Team; use during off season 19

Not Just a Numbers Game… .

20

©2016 Atkinson, Andelson, Loya, Ruud & Romo 7

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Facilities University of Southern California Rowing

21

Facilities USC Rowing OCR Findings = Legitimate non-discriminatory reason for disparity • “The women’s rowing team’s practice and competitive facilities (the boathouse)…is located approximately twelve miles from the team’s on campus locker room… • “However, the University has provided a legitimate, nondiscriminatory factor that explains the disparity. The off campus location is required because the team must practice and complete on an appropriate waterway.”

22

Facilities USC Rowing OCR Findings = Unacceptable Condition of Boathouse • “There is no interior insulation or finishing and no several functional areas in the facility: except the door to the bathroom” • “The building has no HVAC system.” • “There is no adequate personal storage or locker area – a small open area with a set of unsecure wooden cubbies is all that is available.” • “There is no seating area or gathering area for the team” • “There is no spectator capacity” • “One restroom, consisting of one sink and one toilet, is available for everyone–athletes and spectators” 23

©2016 Atkinson, Andelson, Loya, Ruud & Romo 8

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

2. Education Programs or Activities .

34 C.F.R. Part 106.31 No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity….

24

Implementing Regulations 34 C.F.R. Part 106.31 Education Programs or Activities • A recipient shall not, on the basis of sex… • Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner. • Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.

25

Implementing Regulations Education Programs or Activities If Multiple Activities, District Must Provide Equal Facilities.

Magic vs. Jewelry Making…

26

©2016 Atkinson, Andelson, Loya, Ruud & Romo 9

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

3. Athletics .

34 C.F.R. Part 106.41 • No Exclusion from Participation Except… • Separate Teams - Competitive Skill - Contact Sport “contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.” - Must Provide Equivalent Locker Rooms, Practice and Competitive Facilities.

27

Implementing Regulations .

34 C.F.R. Part 106.41 Athletics No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics ….

28

Equal Facilities… .

Baseball Dugouts

29

©2016 Atkinson, Andelson, Loya, Ruud & Romo 10

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Equal Facilities… .

Softball Dugouts

30

Implementing Regulations .

Athletics In determining whether equal opportunities are available the director will consider, among other factors… • (7) Provision of locker rooms, practice and competitive facilities

31

Athletics Locker Rooms 1. Location – Next to, close to, or far from

2. Size – Compare and Determine if adequate for equipment

3. Exclusivity – Do other teams use the same lockers? – Does one team have to remove its equipment daily?

32

©2016 Atkinson, Andelson, Loya, Ruud & Romo 11

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Football Locker Rooms

33

Field Hockey Locker Rooms

34

Practice and Competitive Facilities 1. Conditions for Players Dugout, protection from the elements, fans

2. Maintenance Address repair issues and maintenance plan

3. Aesthetics Paint, logo, celebration of team

4. Condition Player safety, general appearance

5. Opinion of Students and Community Are the students proud of the facilities?

6.

Exclusive Use Does one team share with other teams/community?

35

©2016 Atkinson, Andelson, Loya, Ruud & Romo 12

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Baseball Publicity…

36

Softball Publicity…

37

The Three-Part Test 1. Proportionality (OR) 2. History and Continuing Practice (OR) 3. Effectively Accommodating Interests and Abilities – 44 Fed. Regs. 71,413 and 71,418 – Adopted by Ninth Circuit in Title IX litigation (see Ollier v. Sweetwater Union High School District (9th Cir. 2014) 768 F.3d 843, 854)

38

©2016 Atkinson, Andelson, Loya, Ruud & Romo 13

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

The Three-Part Test .

1. Proportionate: The number of male and female athletes is substantially proportionate to their respective enrollments; or 2. Continuing Practice: The institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or 3. Accommodation: The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex.

39

The Three-Part Test .

Proportionate The number of male and female athletes is substantially proportionate to their respective enrollments • “substantially” = number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team

40

Proportionality Test . National Women’s Law Center

1. What is the TOTAL number of students in the school? _______ –

How many are female?____



How many are male? ____

2. What are the percentages of female and male students? –

___% female ____% male

3. What is the TOTAL number of athletes in the school? ________ –

How many are female?____



How many are male?____

4. What are the percentages of female and male students? –

___% female ____% male

5. Compare the percentages of male and female athletes to the percentages of male and female students enrolled.

41

©2016 Atkinson, Andelson, Loya, Ruud & Romo 14

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

The Three-Part Test .

Continuing Practice • Focus on the last five years • Programs developed to meet needs or interest of underrepresented sex – i.e., art program to offset football class. – programs must be available to all students on an equal basis but equal participation is not required.

42

The Three-Part Test Accommodation Is the District effectively accommodating interests and abilities

Three Questions 1) Is there unmet interest in a particular sport? 2) Is there sufficient ability to sustain a team in the sport? 3) Is there a reasonable expectation of competition for the team?

43

Tools for Passing the “Test” • Comprehensive Self-Study – 34 C.F.R. § 106.3(c) – Evaluate current policies/practices and effects thereof – Modify policies/practices which do not or may not comply with Title IX – Take appropriate remedial steps to eliminate discriminatory effects that may have resulted from noncompliant policies/practices

• Student Survey • California Interscholastic Federation Guidance (“A Guide to Equity in Athletics”)

44

©2016 Atkinson, Andelson, Loya, Ruud & Romo 15

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

California Law: Transgender Students “School Success and Opportunity Act” California Code of Education § 221.5(f) (California Assembly Bill (AB) 1266) Effective January 1, 2014

• Pupils in elementary and secondary schools must be permitted to participate in sex-segregated programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records • No identical higher education statutory language, HOWEVER . . .

45

California Law: Transgender Students “Equity in Higher Education Act” California Code of Education § 66250 et seq. (Amended by California Senate Bill 777 (2007) and Assembly Bill 887 (2011)) • Effective January 2008 – Expanded prohibition against discrimination in “any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid” to include discrimination on the bases of gender, gender identity, and gender expression. (Cal. Ed. Code § 66270) • Effective January 2012 – Amended definition of “gender” to include a person’s sex, as well as a person’s gender identity and gender expression, and defined “gender expression” as meaning one’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth. (Cal. Ed. Code § 66260.7)

46

California Law: Transgender Students • Cal. Educ. Code § 220: “No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation . . . in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state financial aid.”

• Cal. Educ. Code § 221.5(f): “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his/her gender identity, irrespective of the gender listed on the pupil’s records.” Effective 1/1/2014.

47

©2016 Atkinson, Andelson, Loya, Ruud & Romo 16

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Cal. Educ. Code 221.5(f): Major Impacts

• Restrooms, Locker Rooms, and Athletics – Districts cannot insist on a unisex bathroom as an alternative for transgender students. – Districts must allow access to sex-segregated facilities based on gender identity. – Districts must allow students to try out and participate in the sport of their gender identity.

48

Federal Guidance 2016 Dear Colleague Letter on Transgender Students http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-titleix-transgender.pdf

• Issued jointly by OCR of U.S. Department of Education and the Civil Rights Division of the U.S. Department of Justice (“DOJ”) • DOJ and OCR “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations” • Issues covered in guidance: safe and nondiscriminatory environment; identification documents, names, and pronouns; sex-segregated activities and facilities; and privacy and education records 49

Federal Guidance 2016 Dear Colleague Letter • When student (or parent/guardian where appropriate) notifies administration that student will assert gender identity that differs from previous representations or records, school will begin treating student consistent with student’s gender identity. • Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as prerequisite to being treated consistent with gender identity. • The desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students. 50

©2016 Atkinson, Andelson, Loya, Ruud & Romo 17

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Federal Guidance 2016 Dear Colleague Letter • Title IX does not apply to admissions policies of private single-sex undergraduate colleges • Title IX does not apply to the membership practices of social fraternities and sororities • A college or university may provide separate housing for the sexes, but must allow a student to access housing based in their gender identity and may offer (but not require) separate housing as an alternative for any student that requests accommodations

51

States’ Challenge Against Federal Government’s Interpretation of Title IX Example: Texas, et al. v. United States of America, et al.: • Certain states sued the federal government in federal district court, in part, over its interpretation of Title IX as, for example, described in its May 2016 Dear Colleague Letter. • On August 21, 2016, a federal district court granted the states’ motion for a preliminary injunction blocking the federal government’s enforcement of its interpretation that Title IX protects an individual based on gender identity. • On September 12, 2016, the federal government filed a motion requesting clarification of the court’s preliminary injunction. • On October 19, 2016, a district court issued a clarification of its preliminary injunction… 52

States’ Challenge Against Federal Government’s Interpretation of Title IX Preliminary Injunction Clarification: 1. The Injunction is Nationwide: Applies to all states including California and not just Plaintiff states. 2. Scope of Injunction: Only prevents government from using Dear Colleague to argue that the definition of “sex” as it relates to intimate facilities includes gender identity. 3. NOTE: Does not affect a school’s obligation to investigate and remedy complaints of sexual harassment, sex stereotyping, and bullying.

53

©2016 Atkinson, Andelson, Loya, Ruud & Romo 18

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

States’ Challenge Against Federal Government’s Interpretation of Title IX Remaining Preliminary Injunction Issues: The parties must submit briefs to discuss… 1. Whether the injunction implicates Title VII – specifically where school employees and staff may share intimate facilities with students.

2. Effect on Workplace Discrimination – how the injunction applies to the Occupational Safety and Health Administration and Department of Labor.

54

Scope of Title IX Will be Determined by U.S. Supreme Court On Friday, October 28, 2016, the U.S. Supreme Court announced it will review the decision of the Fourth Circuit Court of Appeals in a separate matter involving the rights of a transgender student under Title IX to use a restroom aligned with his gender identity (G.G. v. Gloucester County School Board)

55

Components of Compliance • 1. Identification as a transgender student • 2. Transitions • 3. Harassment/bullying • 4. Access to facilities • 5. Athletic participation • 6. Privacy concerns • 7. Education records • 8. Training

56

©2016 Atkinson, Andelson, Loya, Ruud & Romo 19

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

DCL in Conjunction with CDE FAQ Continue to Serve as Useful Tool— Identification as a Transgender Student OCR May 13, 2016 Dear Colleague Letter: • No medical diagnosis or treatment is required as a prerequisite for a student to be treated consistent with his/her gender identity.

57

Identification as a Transgender Student • Transgender students are often unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions placed on state law). Accordingly, requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

58

Identification as a Transgender Student California Department of Education guidance… • “Districts should accept and respect a student’s assertion of their gender identity where” 1) “The student expresses that identity at school” or 2) “Where there is other evidence that this is a sincerely held part of the student’s core identity,” such as letters from family members or healthcare providers, photographs of students of public events or gatherings, or letters from community members such as clergy.

59

©2016 Atkinson, Andelson, Loya, Ruud & Romo 20

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Identification as a Transgender Student HOWEVER… • A school cannot require a student to provide any particular type of diagnosis, proof of medical treatment, or meet an age requirement as a condition to receiving the protections afforded under California’s antidiscrimination statutes. • Similarly, there is no threshold step for social transition that any student must meet in order to have his or her gender identity recognized and respected by a school. • The fact that a student may express or present their gender identity in different ways in different contexts does not, by itself, undermine a student’s assertion of their gender identity.

60

Transitions 1. Recognize potential length of transition phase – Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen during a relatively short period or over a long duration of time.

2. Respect privacy during this phase – Student may not tell friends and family at the same time.

3. Transition may develop in phases – Changes in name, dress, and facility use may develop at different times and must be respected.

61

Harassment/Bullying California Department of Education Suggestions: 1. Address Specific Types of Bullying: – Taunting for failing to conform to sex stereotypes; – Deliberately referring the name and/or pronouns associated with the student’s assigned sex at birth; – Being deliberately excluded from peer activities; – Personal items related to gender identity stolen or damaged. CDE’s School Success and Opportunity Act (Assembly Bill 1266) Frequently Asked Questions, http://www.cde.ca.gov/re/di/eo/faqs.asp

62

©2016 Atkinson, Andelson, Loya, Ruud & Romo 21

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Harassment/Bullying California Department of Education Suggestions: 2. Specific Efforts to Stop Bullying – Strong and clear policies and procedures for handling complaints of harassment – Consistent and effective implementation of those policies – Encourage members of the college/university community to report incidents of harassment – Clear and publicized process for investigating incidents – Implement appropriate corrective action to end the harassment and monitor the effectiveness of those actions

63

Harassment/Bullying: Federal Guidance 2010 Dear Colleague Letter on Bullying http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html

• May include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex‐stereotyping. • Can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity

64

Access to Facilities • Title IX and California law do not require unisex or genderneutral facilities. – Transgender students should be given the opportunity to use the facilities of their gender identity.

• However… – Gender-neutral facilities can be offered to all students who seek privacy. – Colleges and universities should not force or pressure transgender students to use general neutral facilities if they want to use the facilities consistent with their gender identity. – Gender-neutral facilities should not put a burden on the user (i.e., far from classrooms).

65

©2016 Atkinson, Andelson, Loya, Ruud & Romo 22

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Athletic Participation National Collegiate Athletic Association • “A transgender student-athlete at the college level should be allowed to participate in any sex-separated sports activity so long as that athlete’s use of hormone therapy, if any, is consistent with the NCAA’s existing policies on banned medications.” • 2011 NCAA Policy on Transgender Inclusion http://www.ncaa.org/health-and-safety/sport-scienceinstitute/mind-body-and-sport-harassment-and-discriminationlgbtq-student-athletes

66

Athletic Participation

California Community College Athletic Association: Makes reference to OCR May 2016 Dear Colleague Letter

67

Privacy Issues to Consider

• Any student who makes a request can be given privacy options (i.e., separate facilities, private areas within locker rooms, etc.). • In granting access to sex-segregated facilities and activities, colleges and universities must be careful not to disclose information about a student’s gender identity, assigned sex at birth, legal name, and legal gender.

68

©2016 Atkinson, Andelson, Loya, Ruud & Romo 23

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Privacy Issues to Consider • Colleges and universities need to balance the privacy and safety of other students with a student’s right to selfidentify his or her gender. • All students have a right to keep their gender identity and assigned sex at birth private from others. • The college/university should not disclose any of this information unless the student has authorized such disclosure or if the school is compelled by law.

69

Privacy Issues to Consider California DOE FAQ says… • A transgender student should be consulted to determine who can or will be informed of the student’s transgender status, if anyone, including the student’s family. • With rare exceptions, schools are required to respect the limitations that a student places on the disclosure of their transgender status, including not sharing that information with the student’s parents.

70

Education Records 1. Privacy Protections – Family Educational Rights and Privacy Act (FERPA)

2. Segregation Policy – Keep records that reflect birth name and assigned sex (i.e., birth certificate) in separate files

3. Name Changes – Upon receipt of legal name change documentation, the student’s official record must be updated accordingly. – If the college/university has not received legal documentation, the school, in consultation with student, may update all unofficial school records (e.g., school IDs) to reflect the student’s name and gender marker that is consistent with the student’s gender identity.

71

©2016 Atkinson, Andelson, Loya, Ruud & Romo 24

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Staff Training • Provide staff training on governing laws with an emphasis on the rights of transgender students and related issues. • Offer educational meetings and forums for students, parents, and the community. • Encourage understanding of gender identity, gender expression, and related issues beyond mere compliance with the law.

72

Schools Should Engage in an Interactive Process • When a student requests that the college or university implement measures to reasonably accommodate the student’s consistently asserted gender identity, we recommend the school engage the student (and his/her parents, where appropriate), in an interactive process in order to identify and address potential issues.

73

Key Recommendation: Engage in an Interactive Process • Interactive Process: The interactive process requires time in order to gather information from the student and to develop a plan to help implement a smooth transition.

• Topics for Discussion: – – – – – – – –

Relevant laws, policies/regulations Preferred name/pronouns Privacy interests of student and others Only people who may be involved with student’s transition aka “need to know” people Restroom/locker room/dorm room access Safe people/potential harassers Trainings Athletic participation

74

©2016 Atkinson, Andelson, Loya, Ruud & Romo 25

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Pop Quiz • Question #1: Does Title IX require schools to offer the same sports for both boys and girls? • Question #2: Does Title IX require equal expenditure of funds for male and female athletes? • Question #3: If a school cannot afford to increase female athletic opportunities, does Title IX require reduction of opportunities for male athletes in order to provide equal opportunity? • Question #4: Does Title IX apply differently to those sports that receive supplemental funding through booster clubs? • Question #5: If a District determines boys are more interested in athletics than girls under the Three-Part Test, can it, under Title IX, provide more opportunities to boys? • Question #6: Who is responsible at the District for ensuring compliance with Title IX?

75

Question #1 • Does Title IX require schools to offer the same sports for both boys and girls? Answer… • No • The District must focus on meeting the interests and abilities of its students • If boys and girls have different interests, the District can “match” different sports to provide equal opportunity – Football and field hockey

76

Question #2 • Does Title IX require equal expenditure of funds for male and female athletes? Answer… • No, however… – A discrepancy in expenditures between boys and girls sports signals that the District may not be providing comparable resources as required under Title IX. So… » Monitor expenditures to ensure allocation of comparable resources between boys and girls teams as part of District’s overall athletic program.

77

©2016 Atkinson, Andelson, Loya, Ruud & Romo 26

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Question #3 • If a school cannot afford to increase female athletic opportunities, does Title IX require reduction of opportunities for male athletes in order to provide equal opportunity? Answer… • No • OCR consistently states that Title IX is not intended to cause the reduction in any sport. • Districts are instructed to find ways to increase athletic opportunities for the underrepresented sex.

78

Question #4 • Does Title IX apply differently to those sports that receive supplemental funding through booster clubs? Answer… • No • The District must account for booster club funding and other resources benefitting certain sports teams. • If booster club creates a disparity in the allocation of resources or treatment between male and female athletes, District remains responsible for ensuring its compliance with Title IX. 79

Question #5 • If a District determines boys are more interested in athletics than girls under the Three-Part Test, can the District, under Title IX, provide more opportunities to boys? Answer… • Maybe under Part Three of the Three-Part Test, but most likely not. School must make a good faith effort to identify girl’s interests and the available statistics demonstrate that girls are not disinterested in sports.

80

©2016 Atkinson, Andelson, Loya, Ruud & Romo 27

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Question #6 • Who is responsible at the District for ensuring compliance with Title IX? Answer… • Everyone here, in addition to the Superintendent and members of her leadership team. • A Title IX Coordinator is responsible for ensuring compliance with the law. • All Responsible Employees have a duty to report potential Title IX violations, i.e., sexual violence or misconduct.

81

OCR Review • OCR will review a board range of factors for each part of the test including… – Use of nondiscriminatory methods of assessment when determining athletic interests and abilities; – Whether viable team for the underrepresented sex was recently eliminated; – Multiple indicators of interest; – Multiple indicators of ability; and – Frequency of conducting assessments.

82

Enforcement of Title IX • Title IX is administered by U.S. Department of Education Office of Civil Rights (OCR) • OCR’s Involvement – Complaint intake – Complaint investigation • Early resolution procedure

– Letter of Finding • Resolution procedure prior to conclusion of investigation

– Letter of Impending Enforcement Action

83

©2016 Atkinson, Andelson, Loya, Ruud & Romo 28

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Title IX Investigations • Examines equity on site level and district level • Time consuming, detailed and thorough • Will seek compromise or resolution throughout process • Facilities inspections and interviews • OCR has developed extensive investigation guidelines – Investigator Manual (~200 pages) – Important factor: does not necessarily examine whether there is equality, but the reasons why there may be inequality (discriminatory vs. non-discriminatory)

84

Why is ADA Title II Significant for You? • SB 1186 passage January 2013 – Since then, we’ve seen an increase in lawsuits against public entities.

• Civil Code Section 54.3 guarantees treble damages or $1,000 if there are no damages. • Civil Code Section 52 provides for $4,000 damages for each violation if intentional. – Lack of a Transition Plan is treated as intentional.

• Civil Code Section 55 right for injunctive relief. – Right to attorneys’ fees AND expert costs.

85

It’s More than Just Damages

• Typical issue is the ADA discrimination and associated damages. • Chapman v. Pier 1 Imports (2011) 631 F.3rd 950 addresses the “potential for future discrimination.”

86

©2016 Atkinson, Andelson, Loya, Ruud & Romo 29

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Transition Plan 28 C.F.R. Section 35.150(d) • Document required under the ADA to address areas that are out of compliance and future repair and remediation dates. • Pursuant to 28 CFR Section 35.150(d), the district should have a transition plan for each school, if not one district-wide. • At a minimum, the transition plan should accomplish the following four tasks (28 CFR 35.150(d)(3)): – (i) Identify physical obstacles in the public entity’s facilities that limit the accessibility of its programs or activities to individuals with disabilities; – (ii) Describe in detail the methods that will be used to make the facilities accessible; – (iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, then identify steps that will be taken during each year of the transition period; and – (iv) Indicate the official responsible for implementation of the plan. • An important defense to a claim and potential future claims.

87

Disclaimer This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2016 Atkinson, Andelson, Loya, Ruud & Romo

88

Thank You For questions or comments, please contact:

Stephen M. McLoughlin (562) 653-3200 [email protected]

©2016 Atkinson, Andelson, Loya, Ruud & Romo 30

How Community College Districts Can Comply with Title IX Regarding Facilities and Equal Accommodations

Question Answer

Session

©2016 Atkinson, Andelson, Loya, Ruud & Romo 31