Title IX in Education: Compliance and Enforcement
Dr. Matthew Eberhardt, Interim Deputy Superintendent – Compliance Officer
Ms. Sue Keffer, Director of Human Resources – Alternate Compliance Officer
1
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2
T
a
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o
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e
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t
s
◦
Athle
tic
s
◦
Girls
◦
Students
◦
Employee
◦
Equal
Access
3
20 U.S.C.A. Section 1681
(a)
“No
person
in
the
United
States
shall,
on
the
basis of sex, be
excluded
from
participation
in, be
denied
bene
f
it
o
f
,
or
be
subjec
t
ed
to
discrimination
under any
education
program
of
activity
receiving
federal
funds.”
4
O
F
F
I
C
E
F
O
R
C
I
V
I
L
R
I
G
H
T
S
The Office for Civil Rights (OCR) is a sub-agency of the U.S.
Department of Education that is primarily focused on enforcing civil
rights laws prohibiting schools from engaging in discrimination on the
basis of race, color, national origin, sex, disability, age, or
membership in patriotic youth organizations.
OCR is one of the largest federal civil rights agencies in the United
States, with a staff of approximately 560 attorneys, investigators, and
other staff. The agency can be found in twelve regional offices and
in its Washington, D.C. headquarters. The Office for Civil Rights is
responsible for ensuring the compliance by schools that are public
entities or recipients of federal education funds with several civil
rights laws including:
5
Office For Civil Rights (Continued)
Title VI of the Civil Rights of 1964
Title IX of the Education Amendments Act of 1972
Title II of the American with Disabilities Act
Section 504 of the Rehabilitation Act of 1973
The Boy Scouts of America Equal Access Act
The Age Discrimination Act of 1975
In the case of school bullying school districts may violate these civil
rights statutes and the Department of Education’s implementing
regulations when peer harassment based on race, color, national
origin, sex, or disability is sufficiently serious that it creates a hostile
environment and such harassment is encouraged, tolerated, not
adequately addressed, or ignored by school employees. Under
these federal civil rights laws and regulations, students are protected
from harassment by school employees, other students and third
parties.
6
7
D
e
a
r
C
o
l
l
e
a
g
u
e
L
e
t
t
e
r
s
During
previous
administration,
OCR
increasingly issued
what
it
calls
"Dear
Colleague
Letters"
and
other
guidance
documents
addressing
a
variety of civil rights
issues
on
public
K-12
school
campuses
Examples
•
Transgender
student
issues*
•
Disabled
students'
access
to
extracurricular
activities
•
Title
IX
and
Pregnant/Parenting
Students
•
Discrimination
in
the
administration
of
student
discipline
•
Title
IX
and
Sexual
Harassment/Violence*
•
Avoiding
discrimination
in
enrollment
practices
•
Bullying
of
students
with
disabilities
•
English
Language
Learner
Students
and Limited
English
Proficient
Parents
2
0
1
7
C
h
a
n
g
e
s
t
o
F
e
d
e
r
a
l
G
u
i
d
a
n
c
e
June
8,
2017
internal
memo
regarding
changes to
all
investigations
•
Case-by-case
•
Highlighting
effort
to
clear
backlog
•
Ending
practice
of
requesting
three
years
of
data,
except
where
allegations
themselves
raise
"systemic"
issues
•
School
divisions
can
expect
less
comprehensive
data
requests
from
OCR,
narrower
investigations,
narrower
remedies,
and
more
emphasis
on
voluntary
resolutions
•
From
January
-August
2017
-
OCR
closed
almost
three
thousand
more
complaints
than in
all
of
2016
•
75%
of
closures were
dismissals
•
7
%
were
administrative
closures
•
2
%
were
ECR
•
9
%
finding
of
insufficient
evidence
•
5
%
resolution
agreements
8
September
22,
2017
-
OCR
formally
revoked
Obama
administration's
Title
IX
guidance
(2011and
2014)
that
interpreted
Title
IX
to
impose
new
mandates
related to the
procedures by
which educational institutions
investigate,
adjudicate
and
resolve
allegations
of
student-on-student
misconduct,
signaled
that
it
plans to
move
forward
with
Title
IX
rulemaking
Also
addressed:
•
2011
letter
that
required
schools
to
adopt lower
preponderance
of
the
evidence
standard
in
administering
student
discipline instead
of
higher
clear
and
convincing
•
That
Obama-era
Department
imposed
regulatory
burdens
without
affording notice
and
the
opportunity
for
public
comment
•
P
o
s
s
i
b
i
l
i
t
y
t
h
a
t
K
-
1
2
s
c
h
o
o
l
s
c
o
u
l
d
n
o
w
r
e
l
y
o
n
l
a
w
e
n
f
o
r
c
e
m
e
n
t
i
n
v
e
s
t
i
g
a
t
i
o
n
s
t
o
s
a
t
i
s
f
y
t
h
e
i
r
T
i
t
l
e
I
X
i
n
v
e
s
t
i
g
a
t
i
v
e
o
b
l
i
g
a
t
i
o
n
s
(
2
0
1
1
l
e
t
t
e
r
e
x
p
r
e
s
s
l
y
p
r
o
h
i
b
i
t
e
d
d
o
i
n
g
s
o
)
•
G
o
i
n
g
f
o
r
w
a
r
d
,
D
e
p
a
r
t
m
e
n
t
w
i
l
l
n
o
t
r
e
l
y
o
n
t
h
e
w
i
t
h
d
r
a
w
n
d
o
c
u
m
e
n
t
s
i
n
i
t
s
e
n
f
o
r
c
e
m
e
n
t
o
f
T
i
t
l
e
I
X
•
New
Q
&
A
on
Campus
Sexual
Misconduct
and
on
school compliance
with
Title
IX
(*7
pgs.
of
guidance
now
vs.
40
pg.
2014
DCL)
2
0
1
7
C
h
a
n
g
e
s
t
o
F
e
d
e
r
a
l
G
u
i
d
a
n
c
e
T
i
t
l
e
I
X
9
h
t
t
p
s
:
/
/
w
w
w
2
.
e
d
.
g
o
v
/
a
b
o
u
t
/
o
f
f
i
c
e
s
/
I
i
s
t
/
o
c
r
/
d
o
c
s
/
g
a
-
t
i
t
l
e
-
i
x
-
2
0
1
7
0
9
.
p
d
f
Overall
impact of
new
guidance:
•
Educational
institutions
may
choose to
apply
the
preponderance
of
the
evidence
standard
or
the
clear
and
convincing standard
based
on
student conduct
policies
•
Informal
resolutions (voluntary)
vs.
formal
investigations
•
Police
reports
and
police
process
in
fact-gathering
•
2011
Guidance
provided
that
schools
could
not rely
on
law
enforcement to
satisfy
their
Title
IX
responsibilities
and had to conduct
own
internal investigations
•
Continues to
confirm
that
schools
are
responsible
for
redressing
a
hostile
environment
that
occurs
on
campus
even
if it
relates
to
off-campus
activities
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
10
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
Schools'
obligations
with
regard
to
complaints:
•
A
d
o
p
t
a
n
d
p
u
b
l
i
s
h
g
r
i
e
v
a
n
c
e
p
r
o
c
e
d
u
r
e
s
t
h
a
t
p
r
o
v
i
d
e
f
o
r
p
r
o
m
p
t
a
n
d
e
q
u
i
t
a
b
l
e
r
e
s
o
l
u
t
i
o
n
o
f
c
o
m
p
l
a
i
n
t
s
o
f
s
e
x
d
i
s
c
r
i
m
i
n
a
t
i
o
n
,
i
n
c
l
u
d
i
n
g
s
e
x
u
a
l
m
i
s
c
o
n
d
u
c
t
:
•
Notice
•
Applies
procedures
•
Ensures
adequate, reliable,
and
impartial
investigation
•
Prompt
time
frame
•
Notifies
parties of
outcome
•
Provides
assurance
that
school
will
take
steps to
prevent
recurrence and remedy
effects
11
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
Interim
Measures
•
Individualized
services
offered
to
either
or
both
the
reporting
and
responding parties involved
in
an
alleged
incident
of
sexual
misconduct
•
Prior
to
an
investigation
or
while
investigation
is
pending
•
Must
make
every
effort
to
avoid
depriving
any
student
of
her
or
his
education
•
Check-in
to make
sure
measures
continue
to
be
needed
and
effective
•
Can
include:
•
Counseling
•
Extensions
of time or
other course-related
adjustments
•
Modifications
of
work
or
class
schedules
•
Restrictions
on
contact
between
the
parties
•
Changes
in
work or
housing
locations
•
Increased
security
and
monitoring
12
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
•
No
specific
time
frame
for
"prompt",
OCR
will
evaluate
whether
school
made
a
good
faith
effort to
conduct
a
fair
and
impartial
investigation
in
a
timely
manner
designed
to
provide
all
parties
with
resolution
•
"Equitable"
•
Burden
on
school to
gather
sufficient
evidence
to
reach
fair and
impartial
determination
•
Person
free
of
actual
or
reasonably
perceived
conflicts
of
interest
and
biases
for
or
against
any
party
must
lead
the
investigation
on
behalf
of
school
•
Any
rights
or opportunities
that
a
school
makes
available
to
one
party
should
be
made
available
to
the
other
on
equal
terms -
gag
orders
discouraged
13
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
E
q
u
i
t
a
b
l
e
"
c
o
n
t
i
n
u
e
d
■
Once
investigation
is
opened
that
may lead to
disciplinary
action,
the
school
should
provide
written
notice to
the responding party of
the
allegations,
including
sufficient
details
and
with
sufficient
time
to
prepare
a
response
before
any
initial
interview
■
Identities of
parties
involved
■
Specific
section
of
code
of
conduct
violated
■
Precise
conduct
allegedly
constituting
the potential
violation
■
Date
and
location of
the
alleged
incident
14
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
Investigation
Report
•
Summarizes
relevant exculpatory and inculpatory
evidence
•
The
reporting
and
responding
parties and appropriate officials
must
have
timely
and
equal
access
to
any
information
that
will
be
used
during
informal
and
formal
disciplinary
meetings
and
hearings
The
investigator,
or
separate decision
maker,
with or without
hearing,
must
make
findings
of
fact and
conclusions
as
to
whether
facts
support
a
finding of
responsibility for
violation
of
school's
sexual
misconduct
policy
If
complaint
presented
more than
a
single
allegation of
misconduct,
a
decision
should
be
reached separately
as
to
each
allegation
Parties
should
have
opportunity to
respond
to
the
report
in
writing
in
advance of the
decision
of
responsibility and/or
at
a
live
hearing
15
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
Disciplinary
sanctions
•
Decisions
must
be
made
for
the purpose
of deciding
how
best
to
enforce the
school's
code
of
conduct
•
Must
consider
impact of separating
student
from
his or
her
education
•
Must
be
proportionate to the
violation
16
Q
&
A
o
n
C
a
m
p
u
s
S
e
x
u
a
l
M
i
s
c
o
n
d
u
c
t
N
o
t
i
c
e
o
f
O
u
t
c
o
m
e
(
t
o
p
a
r
e
n
t
s
,
i
f
u
n
d
e
r
1
8
;
t
o
s
t
u
d
e
n
t
,
i
f
o
v
e
r
1
8
)
•
Whether
it
found
the
alleged
conduct
occurred
•
Any
individual
remedies
offered
to the reporting
party
•
Sanctions
imposed
on
responding
party
that
directly
relate
to reporting
party
(i.e.
an
order
that
the
responding
party
stay
away
from
reporting
party) -
limitation
allows
the
notice to
comply
with
FERPA
•
Other
steps
the
school
has
taken
to
eliminate
the
hostile environment
if
the
school
found
one
to
exist
A
p
p
e
a
l
s
•
Can
allow
appeals
solely to
responding
party
or
by
both
parties
I
n
f
o
r
m
a
l
R
e
s
o
l
u
t
i
o
n
•
If
all
parties
voluntarily
agree,
the
school
may
facilitate
informal resolution
including
mediation
•
There
must be
prior
full
disclosure
of
allegations
and
options for formal resolution
17
Access
and
Inclusion
Risk
Management
and
Risk
Mitigation
Student
Learning
and
Development
Demonstrates
a
commitment to every student
18
P
o
s
i
t
i
v
e
R
e
s
u
l
t
s
i
n
C
o
m
p
l
i
a
n
c
e
W
i
t
h
T
i
t
l
e
I
X
Sexual advances, requests
for
sexual favors and sexually
motivated physical
conduct
Overt
or
subtle pressure
for
sexual
activity
Sexually offensive verbalization including remarks, “teasing”,
slurs, and
innuendo
Inappropriate jokes
or
comments about sex
or
gender specific
traits
Conduct that
is
demeaning
or
derisive and occurs substantially
because
of
one’s gender
19
E
x
a
m
p
l
e
s
o
f
V
i
o
l
a
t
i
o
n
s
Recruitment (Charter and Magnet
schools)
◦
(and special school programs
like
JROTC, ATC trade-tech,
Domestic
Engineer-;0)
Drop-out
rates
Fee waiver-or not (State constitutionally free education)
Discipline
referrals
Services
for
pregnant
or
parenting
teens
Referrals and services
for
Special Needs,
ELL
programs, tutoring
Sexual harassment policies and
training
20
L
e
a
r
n
i
n
g
E
n
v
i
r
o
n
m
e
n
t
Field
Trips
Extra-Curricular Activities
School Buses
Prohibition against RETALIATION
21
L
e
a
r
n
i
n
g
E
n
v
i
r
o
n
m
e
n
t
“By putting women
in a
situation where
they’re not preoccupied with negative gender
stereotypes,
you
can significantly reduce the
gender gap
in
standardized testing
performance.”
–Dr.
Mathew
McGlone
22
L
e
a
r
n
i
n
g
E
n
v
i
r
o
n
m
e
n
t
◦
Heightened gender identity can lead to
stereotypic conduct
◦
Subtle cues
in
the testing environment can effect
results, i.e., having students report their sex
for
testing demographics (girls aren’t good at
math)
◦
The gender composition
of a
class
◦
Overt statements-’Boys will
be boys’
◦
Girls
are
sugar
and
spice
◦
Big boys
don’t
cry
◦
Frequency and maintenance
of
instructor eye
contact
by
gender
23
L
e
a
r
n
i
n
g
E
n
v
i
r
o
n
m
e
n
t
Practices
you
have seen which may reinforce
learning environment
bias?
24
L
e
a
r
n
i
n
g
E
n
v
i
r
o
n
m
e
n
t
Mid-May, 2006, presentation
by
Principal Murphy
for
parents:
S
e
x
s
e
g
r
e
g
a
t
i
o
n
w
a
s
t
o
h
e
l
p
“
t
e
a
c
h
e
r
s
a
n
d
p
a
r
e
n
t
s
u
n
d
e
r
s
t
a
n
d
t
h
e
n
e
u
r
o
l
o
g
i
c
a
l
,
d
e
v
e
l
o
p
m
e
n
t
a
l
,
a
n
d
h
o
r
m
o
n
a
l
d
i
f
f
e
r
e
n
c
e
s
/
s
i
m
i
l
a
r
i
t
i
e
s
b
y
g
e
n
d
e
r
i
n
o
r
d
e
r
t
o
i
d
e
n
t
i
f
y
s
t
r
e
n
g
t
h
s
a
n
d
w
e
a
k
n
e
s
s
e
s
o
f
b
o
y
s
a
n
d
g
i
r
l
s
.
”
25
L
e
a
r
n
i
n
g
E
n
v
i
r
o
n
m
e
n
t
Seldon v. Livingston, cont.
1.
Once
a
school knows, or reasonably should have,
of
possible sexual violence, immediate and
appropriate steps must
be
taken to
investigate/determine what occurred
2.
If
sexual violence has occurred,
prompt
and effective
steps to end the violence must
be
taken
26
S
c
h
o
o
l
s
’
O
b
l
i
g
a
t
i
o
n
s
3.
Must
provide a
procedure
for
students to
file
complaints
of
sexual
violence/discrimination
4.
A
school’s grievance procedures must use the
preponderance
of
the evidence standard to resolve
complaints
5.
A
school must notify both parties
of
the
outcome
of
the
complaint
27
S
c
h
o
o
l
s
’
O
b
l
i
g
a
t
i
o
n
s
6. Must have and distribute
a
policy against sex
discrimination
7.
Must have
a
Title
IX
coordinator:
Title
IX of
the Education Amendments
of
1972
states:
Designation
of
responsible employee. Each recipient
shall
designate
at
least
one employee
to coordinate
its efforts
to
comply
with
and
carry out
its responsibilities
under
this
part,
including
any
investigation
of
any complaint
communicated
to
such
recipient
alleging
its
noncompliance
with
this
part or
alleging
any
actions
which would
be prohibited by
this part.
The
recipient
shall notify all its
students
and employees
of
the
name,
office
address
and
telephone
number
of
the
employee
or
employees
appointed
pursuant to
this
paragraph.
28
S
c
h
o
o
l
s
’
O
b
l
i
g
a
t
i
o
n
s
8.
Must take steps to protect the Complainant (and accused
harasser), including the provision of interim measures
prior to the outcome of the investigation
Require that victim/harasser “work
it
out,” “talk
it
out,” enter into mediation…
(but can offer informal
resolution)
Require the victim to change schools,
transportation, classes, extracurricular
activities…
Pressure
or
suggest
a
victim wait to take action
to make
a
complaint
29
S
c
h
o
o
l
s
’
O
b
l
i
g
a
t
i
o
n
S
c
h
o
o
l
s
C
a
n
n
o
t
:
Policy Guidance:
2010
When bullying/harassment based
on
sex
or
gender
creates
a
hostile environment that
is
serious
enough to
limit or
interfere with
a
student’s ability
to benefit
from
the-
S
ervices
Activities
Opportunities
The harassment violates Title IX
.
30
D
e
p
a
r
t
m
e
n
t
o
f
J
u
s
t
i
c
e
:
Fa
iling to effectively respond to bullying/
harassment
of LGBT
students
Failing to respond to bullying/harassment
based
on
actual
or
perceived sexual
orientation
Failing to respond to bullying/harassment
based
on
gender-based expectations
for
boys or
girls (gender stereotypes)
31
D
e
p
a
r
t
m
e
n
t
o
f
J
u
s
t
i
c
e
:
DOJ 2010 Title IX violations
Aggression
or
intentional harm
Negative
behavior
Carried out repeatedly
Often involves an imbalance
of
power
Verbal and/or
physical
and/or
visual
32
B
u
l
l
y
i
n
g
a
n
d
H
a
r
a
s
s
m
e
n
t
Flaming, stalking, impersonation, posts to
or
about,
etc…
DOJ definition
of
cyber-stalking:
“
The use
of
Internet, e-mail
or
other electronic
communication devices to stalk another person.”
Sending
or
posting repeated messages that are
intimidating
or
threaten
harm.
33
B
u
l
l
y
i
n
g
a
n
d
H
a
r
a
s
s
m
e
n
t
Cyberbullying:
Threat
of
Harm
Outing
“Ganging-Up”
Name
calling
Denigration
I
s
ol
at
io
n/a
li
enat
ion
V
iolence
Often includes comments about other “class”
or
“status”
34
B
u
l
l
y
i
n
g
a
n
d
/
o
r
H
a
r
a
s
s
m
e
n
t
Rape
Sexual
Assault
Sexual
Battery
Sexual
Coercion
Dating
violence
35
G
e
n
d
e
r
-
B
a
s
e
d
V
i
o
l
e
n
c
e
1.
Schools
address alleged
sexual violence
as a
Title
IX
civil rights issue
2.
Provide interim protection and services
for
victims
3.
Systemize cooperation between school officials
and local law
enforcement
4.
Establish comprehensive advisory committees to
advise and monitor
climate
5.
Conduct climate surveys
6.
Conduct peer-peer sexual harassment training
36
S
e
x
u
a
l
V
i
o
l
e
n
c
e
R
e
m
e
d
i
e
s
8.
Conduct employee sexual harassment
training
9.
Publicize school policies
w
here and
w
ith whom to
file
and w
hat to
expect
from
the
process
37
S
e
x
u
a
l
V
i
o
l
e
n
c
e
R
e
m
e
d
i
e
s
Student
Handbooks
Brochures
Catalogs
Application Forms
Recruitment
material
Staff and faculty employment
applications
Website
38
C
o
m
p
l
i
a
n
c
e
P
u
b
l
i
c
N
o
t
i
c
e
February 22, 2017
Withdrawal of statements of policy and guidance reflected in May 2016 DCL
on OCR’s enforcement of Title IX with respect to transgender students
based on gender identity as well as related January 2015 letter
Notes that former guidance requiring access to sex-segregated facilities
based on gender identity did not contain extensive legal analysis or explain
how the position is consistent with the express language of Title IX or
undergo any formal public process
August of 2016, a Texas court preliminarily enjoined enforcement of the
interpretation, and that nationwide injunction has not been overturned
March 6, 2017 U.S. Supreme Court vacated and remanded Gloucester
County School Board v. G.G. case for further consideration; 4
th
Circuit
remanded to US District court, School Division filed motion to dismiss for
mootness
May 22, 2018 US DC for EDVA denied School Division motion to dismiss
R
e
c
e
n
t
C
h
a
n
g
e
s
t
o
F
e
d
e
r
a
l
G
u
i
d
a
n
c
e
39
June 6, 2017
•
Internal memo from OCR to regional directors highlighting recent developments in
the enforcement of Title IX, specifically with regard to transgender students
•
OCR should rely on the Title IX and implementing regulations as interpreted in
decisions of federal courts and OCR documents that have not been rescinded
•
Provided specific examples of when OCR can assert subject matter jurisdiction
Failure to resolve a transgender student’s complaint of sex discrimination
Failure to assess whether sexual harassment or gender-based harassment
(refusing to use preferred name or pronouns) of a transgender student created a
hostile environment
Different treatment based on sex stereotyping
•
Provided appropriate language to use in the case of a complaint dismissal
R
e
c
e
n
t
C
h
a
n
g
e
s
t
o
F
e
d
e
r
a
l
G
u
i
d
a
n
c
e
40
Develop nondiscrimination policy and notify the
school community
of
the policy and the Title
IX
Coordinator contact
information
Oversee all Title
IX
complaints
Identify
&
address any patterns
or
systemic
problems that arise during review
of
complaints
Be
available to meet with students as
needed
Make sure other
job
responsibilities don’t
create
a
conflict
of
interest
41
T
i
t
l
e
I
X
C
o
o
r
d
i
n
a
t
o
r
-
D
u
t
i
e
s
Provide assistance to Law
Enforcement
Obtain
access to Law Enforcement Investigation
notes and findings, as
necessary
Understand how grievance procedures
operate
If more
than one Coordinator
is
identified,
describe each Coordinator’s responsibilities
and designate
a
Coordinator with ultimate
oversight
42
T
i
t
l
e
I
X
C
o
o
r
d
i
n
a
t
o
r
-
D
u
t
i
e
s
General statement
Identify Coordinator
&
how to
contact
Widely distribute
to:
◦
Students
◦
Parents
◦
Employees
◦
Applicants
for
admission
&
employment
◦
Other relevant persons
Post:
◦
Website
◦
Locations throughout school
◦
Printed publications
◦
Electronic publications
◦
Send electronically to members
of
the school
community
43
N
o
t
i
c
e
o
f
N
o
n
d
i
s
c
r
i
m
i
n
a
t
i
o
n
How
to report, and to
whom
How
to recognize the nature
of
sexual harassment
and sexual violence
Preventive
education
Victim resources/services
Include students, teachers, employees, school law
enforcement, administrators, counselors, general counsel,
health personnel, advisors, hearing officers/boards,
investigators, appeals officers, community members, vendors,
etc.
Law enforcement should
be
trained
on
Title
IX
grievance
procedures and any other procedures used
for
investigating sexual
violence
allegations
44
T
r
a
i
n
i
n
g
Prompt
&
equitable
resolution
◦
Notice
of
procedures
&
how to
file
complaints
◦
Apply procedures
◦
Designate reasonably
prompt
time frames
for
major
stages
of
the process
◦
Notice to the parties
of
the
outcome
◦
Assurance that preventative measures will
be
implemented to prevent recurrence
or
correct
discriminatory effects
Written language appropriate to the age
of
the
students
Easily
understood, easily located, widely
distributed
45
E
s
t
a
b
l
i
s
h
a
G
r
i
e
v
a
n
c
e
P
r
o
c
e
d
u
r
e
Law enforcement investigation does not relieve
the
school
of
its obligation to
investigate
Prompt, thorough, reliable,
impartial
Inform
&
obtain consent
from
complainant’s
parents
before
beginning
How
to handle
a
request
for
confidentiality
Take immediate steps to protect the
student
Don’t wait
for
conclusion
of
criminal
investigation
Clear policies regarding when to refer to
law
enforcement
Parties must have an equal opportunity to present
relevant witnesses
&
other
evidence
Address attorney
involvement
Provide
an
appeal
process
46
E
s
t
a
b
l
i
s
h
I
n
v
e
s
t
i
g
a
t
i
o
n
P
r
o
c
e
d
u
r
e
s
Develop, Implement, Enforce
&
Monitor:
◦
Policies, Procedures
&
Practices
◦
Training
&
Educational
Materials
◦
Processes Regarding Intake, Investigation, Findings
&
Resolution
of
Complaints
◦
Appropriate Dissemination
of
Information
◦
Institutional Compliance
◦
Recordkeeping
Establish
a
process
for
continual
improvement
Appropriate dissemination
of
information (notices
of
charge, hearing outcome, duty to warn,
remedies)
Oversee institutional compliance
Record keeping
–
may become subject
of
litigation
47
T
i
t
l
e
I
X
C
o
o
r
d
i
n
a
t
o
r
J
o
b
D
e
s
c
r
i
p
t
i
o
n
At least
one
Title
IX
coordinator has been designated to coordinate efforts to
comply
with Title
IX,
including
investigation
of
any complaints
◦
All students and employees have been notified
of
the name(s),
office
address(es), and telephone
number(s)
of
the
coordinator(s)
Grievance procedures
for
students have been adopted and
published
Grievance procedures
for
employees have been adopted and
published
Climate check
Contingency protection plan
for
the victim
during
the
investigation
The following have been notified
of a policy of
nondiscrimination
on
the basis
of
sex:
Applicants
for
admission and
employment
Students and parents
of
students
Employees
Sources
of
referral
of
applicants
Unions,
professional organizations
Notification
of a policy of
nondiscrimination
on
the basis
of
sex has been placed
in
the
following:
Local
newspapers
School newspapers and
magazines
Memoranda
or
other written communications distributed annually to each student and
employee
Announcements, bulletins, catalogs, student and faculty
handbooks
Application
forms
The above-listed publications are free
of
text and illustrations suggesting differential treatment
on
the basis
of
sex
Admission and recruitment representatives
(including
counselors
or
student advisors
and
personnel officers) have been advised
of
the nondiscriminatory
policy
and required to
adhere
to the
policy
Training
is
provided
for
staff
and
faculty.
48
B
a
s
i
c
T
i
t
l
e
I
X
C
o
m
p
l
i
a
n
c
e
C
h
e
c
k
l
i
s
t
This document provides information on Title IX regulations in education, focusing on compliance, enforcement, and the roles of key personnel such as the Interim Deputy Superintendent and the Director of Human Resources. It covers definitions, obligations, grievance procedures, and examples of violations related to gender-based discrimination. The Office for Civil Rights (OCR) is highlighted as the agency responsible for ensuring schools do not engage in discriminatory practices. Various topics such as sexual violence remedies, training, and establishing investigation procedures are discussed to promote a safe and inclusive learning environment.
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Presentation Transcript
Fredericksburg City Public Schools Dr. Matthew Eberhardt, Interim Deputy Superintendent Compliance Officer Ms. Sue Keffer, Director of Human Resources Alternate Compliance Officer 1
Table of Contents Perceptions About Title IX ........................................................................... 3 Definition of Title IX ...................................................................................... 4 Definition of OCR ......................................................................................... 5 Dear Colleague Letters ................................................................................ 7 2017 Changes to Federal Guidance ............................................................ 8 Questions & Answers on Campus Sexual Misconduct ................................ 10 Positive Results in Compliance with Title IX ................................................ 18 Examples of Violations ................................................................................ 19 Learning Environment .................................................................................. 20 Schools Obligations .................................................................................... 26 Department of Justice .................................................................................. 30 Bullying and Harassment ............................................................................. 32 Gender-Based Violence ............................................................................... 35 Sexual Violence Remedies .......................................................................... 36 Compliance Public Notice ............................................................................ 38 Recent Changes to Federal Guidance ......................................................... 39 Title IX Coordinator Duties .......................................................................... 41 Notice of Nondiscrimination ......................................................................... 43 Training ........................................................................................................ 44 Establish a Grievance Procedure ................................................................ 45 Establish Investigation Procedures .............................................................. 46 Title IX Coordinator Job Description ............................................................ 47 Basic Title IX Compliance Checklist ............................................................ 48 2
Athletics Girls Students Employee Equal Access 3
20 U.S.C.A. Section 1681 (a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefit of, or be subjected to discrimination under any education program of activity receiving federal funds. 4
OFFICE FOR CIVIL RIGHTS The Office for Civil Rights (OCR) is a sub-agency of the U.S. Department of Education that is primarily focused on enforcing civil rights laws prohibiting schools from engaging in discrimination on the basis of race, color, national origin, sex, disability, age, or membership in patriotic youth organizations. OCR is one of the largest federal civil rights agencies in the United States, with a staff of approximately 560 attorneys, investigators, and other staff. The agency can be found in twelve regional offices and in its Washington, D.C. headquarters. The Office for Civil Rights is responsible for ensuring the compliance by schools that are public entities or recipients of federal education funds with several civil rights laws including: 5
Office For Civil Rights (Continued) Title VI of the Civil Rights of 1964 Title IX of the Education Amendments Act of 1972 Title II of the American with Disabilities Act Section 504 of the Rehabilitation Act of 1973 The Boy Scouts of America Equal Access Act The Age Discrimination Act of 1975 In the case of school bullying school districts may violate these civil rights statutes and the Department of Education s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. Under these federal civil rights laws and regulations, students are protected from harassment by school employees, other students and third parties. 6
Dear Colleague Letters During previous administration, OCR increasingly issued what it calls "Dear Colleague Letters" and other guidance documents addressing a variety of civil rights issues on public K-12 school campuses Examples Transgender student issues* Disabled students' access to extracurricular activities Title IX and Pregnant/Parenting Students Discrimination in the administration of student discipline Title IX and Sexual Harassment/Violence* Avoiding discrimination in enrollment practices Bullying of students with disabilities English Language Learner Students and Limited English Proficient Parents 7
2017 Changes to Federal Guidance June 8, 2017 internal memo regarding changes to all investigations Case-by-case Highlighting effort to clear backlog Ending practice of requesting three years of data, except where allegations themselves raise "systemic" issues School divisions can expect less comprehensive data requests from OCR, narrower investigations, narrower remedies, and more emphasis on voluntary resolutions From January -August 2017 - OCR closed almost three thousand more complaints than in all of 2016 75% of closures were dismissals 7 % were administrative closures 2 % were ECR 9 % finding of insufficient evidence 5 % resolution agreements 8
2017 Changes to Federal Guidance Title IX September 22, 2017 - OCR formally revoked Obama administration's Title IX guidance (2011and 2014) that interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate and resolve allegations of student-on-student misconduct, signaled that it plans to move forward with Title IX rulemaking Also addressed: 2011 letter that required schools to adopt lower preponderance of the evidence standard in administering student discipline instead of higher clear and convincing That Obama-era Department imposed regulatory burdens without affording notice and the opportunity for public comment Possibility that K-12 schools could now rely on law enforcement investigations to satisfy their Title IX investigative obligations (2011 letter expressly prohibited doing so) Going forward, Department will not rely on the withdrawn documents in its enforcement of Title IX New Q & A on Campus Sexual Misconduct and on school compliance with Title IX (*7 pgs. of guidance now vs. 40 pg. 2014 DCL) 9
Q & A on Campus Sexual Misconduct https:/ /www2 .ed .gov/ab out/ offices/I ist/ocr/docs/ga-title-ix-201709.pdf Overall impact of new guidance: Educational institutions may choose to apply the preponderance of the evidence standard or the clear and convincing standard based on student conduct policies Informal resolutions (voluntary) vs. formal investigations Police reports and police process in fact-gathering 2011 Guidance provided that schools could not rely on law enforcement to satisfy their Title IX responsibilities and had to conduct own internal investigations Continues to confirm that schools are responsible for redressing a hostile environment that occurs on campus even if it relates to off-campus activities 10
Q & A on Campus Sexual Misconduct Schools' obligations with regard to complaints: Adopt and publish grievance procedures that provide for prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct: Notice Applies procedures Ensures adequate, reliable, and impartial investigation Prompt time frame Notifies parties of outcome Provides assurance that school will take steps to prevent recurrence and remedy effects 11
Q & A on Campus Sexual Misconduct Interim Measures Individualized services offered to either or both the reporting and responding parties involved in an alleged incident of sexual misconduct Prior to an investigation or while investigation is pending Must make every effort to avoid depriving any student of her or his education Check-in to make sure measures continue to be needed and effective Can include: Counseling Extensions of time or other course-related adjustments Modifications of work or class schedules Restrictions on contact between the parties Changes in work or housing locations Increased security and monitoring 12
Q & A on Campus Sexual Misconduct No specific time frame for "prompt", OCR will evaluate whether school made a good faith effort to conduct a fair and impartial investigation in a timely manner designed to provide all parties with resolution "Equitable" Burden on school to gather sufficient evidence to reach fair and impartial determination Person free of actual or reasonably perceived conflicts of interest and biases for or against any party must lead the investigation on behalf of school Any rights or opportunities that a school makes available to one party should be made available to the other on equal terms - gag orders discouraged 13
Q & A on Campus Sexual Misconduct Equitable" continued Once investigation is opened that may lead to disciplinary action, the school should provide written notice to the responding party of the allegations, including sufficient details and with sufficient time to prepare a response before any initial interview Identities of parties involved Specific section of code of conduct violated Precise conduct allegedly constituting the potential violation Date and location of the alleged incident 14
Q & A on Campus Sexual Misconduct Investigation Report Summarizes relevant exculpatory and inculpatory evidence The reporting and responding parties and appropriate officials must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings The investigator, or separate decision maker, with or without hearing, must make findings of fact and conclusions as to whether facts support a finding of responsibility for violation of school's sexual misconduct policy If complaint presented more than a single allegation of misconduct, a decision should be reached separately as to each allegation Parties should have opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing 15
Q & A on Campus Sexual Misconduct Disciplinary sanctions Decisions must be made for the purpose of deciding how best to enforce the school's code of conduct Must consider impact of separating student from his or her education Must be proportionate to the violation 16
Q & A on Campus Sexual Misconduct Notice of Outcome (to parents, if under 18; to student, if over 18) Whether it found the alleged conduct occurred Any individual remedies offered to the reporting party Sanctions imposed on responding party that directly relate to reporting party (i.e. an order that the responding party stay away from reporting party) - limitation allows the notice to comply with FERPA Other steps the school has taken to eliminate the hostile environment if the school found one to exist Appeals Can allow appeals solely to responding party or by both parties Informal Resolution If all parties voluntarily agree, the school may facilitate informal resolution including mediation There must be prior full disclosure of allegations and options for formal resolution 17
Positive Results in Compliance With Title IX Access and Inclusion Risk Management and Risk Mitigation Student Learning and Development Demonstrates a commitment to every student 18
Examples of Violations Sexual advances, requests for sexual favors and sexually motivated physical conduct Overt or subtle pressure for sexual activity Sexually offensive verbalization including remarks, teasing , slurs, and innuendo Inappropriate jokes or comments about sex or gender specific traits Conduct that is demeaning or derisive and occurs substantially because of one s gender 19
Learning Environment Recruitment (Charter and Magnet schools) (and special school programs like JROTC, ATC trade-tech, Domestic Engineer-;0) Drop-out rates Fee waiver-or not (State constitutionally free education) Discipline referrals Services for pregnant or parenting teens Referrals and services for Special Needs, ELL programs, tutoring Sexual harassment policies and training 20
Learning Environment Field Trips Extra-Curricular Activities School Buses Prohibition against RETALIATION 21
Learning Environment By putting women in a situation where they re not preoccupied with negative gender stereotypes, you can significantly reduce the gender gap in standardized testing performance. Dr. Mathew McGlone 22
Learning Environment Heightened gender identity can lead to stereotypic conduct Subtle cues in the testing environment can effect results, i.e., having students report their sex for testing demographics (girls aren t good at math) The gender composition of a class Overt statements- Boys will be boys Girls are sugar and spice Big boys don t cry Frequency and maintenance of instructor eye contact by gender 23
Learning Environment Practices you have seen which may reinforce learning environment bias? 24
Learning Environment Seldon v. Livingston, cont. Mid-May, 2006, presentation by Principal Murphy for parents: Sex segregation was to help teachers and parents understand the neurological, developmental, and hormonal differences/ similarities by gender in order to identify strengths and weaknesses of boys and girls. 25
Schools Obligations 1. Once a school knows, or reasonably should have, of possible sexual violence, immediate and appropriate steps must be taken to investigate/determine what occurred 2. If sexual violence has occurred, prompt and effective steps to end the violence must be taken 26
Schools Obligations 3. Must provide a procedure for students to file complaints of sexual violence/discrimination 4. A school s grievance procedures must use the preponderance of the evidence standard to resolve complaints 5. A school must notify both parties of the outcome of the complaint 27
Schools Obligations 6. Must have and distribute a policy against sex discrimination 7. Must have a Title IX coordinator: Title IX of the Education Amendments of 1972 states: Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to such recipient alleging its noncompliance with this part or alleging any actions which would be prohibited by this part. The recipient shall notify all its students and employees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph. 8. Must take steps to protect the Complainant (and accused harasser), including the provision of interim measures prior to the outcome of the investigation 28
Schools Obligation Schools Cannot: Require that victim/harasser work it out, talk it out, enter into mediation (but can offer informal resolution) Require the victim to change schools, transportation, classes, extracurricular activities Pressure or suggest a victim wait to take action to make a complaint 29
Department of Justice: Policy Guidance: 2010 When bullying/harassment based on sex or gender creates a hostile environment that is serious enough to limit or interfere with a student s ability to benefit from the- Services Activities Opportunities The harassment violates Title IX. 30
Department of Justice: DOJ 2010 Title IX violations Failing to effectively respond to bullying/ harassment of LGBT students Failing to respond to bullying/harassment based on actual or perceived sexual orientation Failing to respond to bullying/harassment based on gender-based expectations for boys or girls (gender stereotypes) 31
Bullying and Harassment Aggression or intentional harm Negative behavior Carried out repeatedly Often involves an imbalance of power Verbal and/or physical and/or visual 32
Bullying and Harassment Cyberbullying: Flaming, stalking, impersonation, posts to or about, etc DOJ definition of cyber-stalking: The use of Internet, e-mail or other electronic communication devices to stalk another person. Sending or posting repeated messages that are intimidating or threaten harm. 33
Bullying and/or Harassment Name calling Denigration Isolation/alienation Violence Threat of Harm Outing Ganging-Up Often includes comments about other class or status 34
Gender-Based Violence Rape Sexual Assault Sexual Battery Sexual Coercion Dating violence 35
Sexual Violence Remedies Schools address alleged sexual violence as a Title IX civil rights issue 1. Provide interim protection and services for victims 2. Systemize cooperation between school officials and local law enforcement 3. Establish comprehensive advisory committees to advise and monitor climate 4. Conduct climate surveys 5. Conduct peer-peer sexual harassment training 6. 36
Sexual Violence Remedies 8. Conduct employee sexual harassment training 9. Publicize school policies where and with whom to file and what to expect from the process 37
Compliance Public Notice Student Handbooks Brochures Catalogs Application Forms Recruitment material Staff and faculty employment applications Website 38
Recent Changes to Federal Guidance February 22, 2017 Withdrawal of statements of policy and guidance reflected in May 2016 DCL on OCR s enforcement of Title IX with respect to transgender students based on gender identity as well as related January 2015 letter Notes that former guidance requiring access to sex-segregated facilities based on gender identity did not contain extensive legal analysis or explain how the position is consistent with the express language of Title IX or undergo any formal public process August of 2016, a Texas court preliminarily enjoined enforcement of the interpretation, and that nationwide injunction has not been overturned March 6, 2017 U.S. Supreme Court vacated and remanded Gloucester County School Board v. G.G. case for further consideration; 4th Circuit remanded to US District court, School Division filed motion to dismiss for mootness May 22, 2018 US DC for EDVA denied School Division motion to dismiss 39
Recent Changes to Federal Guidance June 6, 2017 Internal memo from OCR to regional directors highlighting recent developments in the enforcement of Title IX, specifically with regard to transgender students OCR should rely on the Title IX and implementing regulations as interpreted in decisions of federal courts and OCR documents that have not been rescinded Provided specific examples of when OCR can assert subject matter jurisdiction Failure to resolve a transgender student s complaint of sex discrimination Failure to assess whether sexual harassment or gender-based harassment (refusing to use preferred name or pronouns) of a transgender student created a hostile environment Different treatment based on sex stereotyping Provided appropriate language to use in the case of a complaint dismissal 40
Title IX Coordinator - Duties Develop nondiscrimination policy and notify the school community of the policy and the Title IX Coordinator contact information Oversee all Title IX complaints Identify & address any patterns or systemic problems that arise during review of complaints Be available to meet with students as needed Make sure other job responsibilities don t create a conflict of interest 41
Title IX Coordinator - Duties Provide assistance to Law Enforcement Obtain access to Law Enforcement Investigation notes and findings, as necessary Understand how grievance procedures operate If more than one Coordinator is identified, describe each Coordinator s responsibilities and designate a Coordinator with ultimate oversight 42
Notice of Nondiscrimination General statement Identify Coordinator & how to contact Widely distribute to: Students Parents Employees Applicants for admission & employment Other relevant persons Post: Website Locations throughout school Printed publications Electronic publications Send electronically to members of the school community 43
Training How to report, and to whom How to recognize the nature of sexual harassment and sexual violence Preventive education Victim resources/services Include students, teachers, employees, school law enforcement, administrators, counselors, general counsel, health personnel, advisors, hearing officers/boards, investigators, appeals officers, community members, vendors, etc. Law enforcement should be trained on Title IX grievance procedures and any other procedures used for investigating sexual violence allegations 44
Establish a Grievance Procedure Prompt & equitable resolution Notice of procedures & how to file complaints Apply procedures Designate reasonably prompt time frames for major stages of the process Notice to the parties of the outcome Assurance that preventative measures will be implemented to prevent recurrence or correct discriminatory effects Written language appropriate to the age of the students Easily understood, easily located, widely distributed 45
Establish Investigation Procedures Law enforcement investigation does not relieve the school of its obligation to investigate Prompt, thorough, reliable, impartial Inform & obtain consent from complainant s parents before beginning How to handle a request for confidentiality Take immediate steps to protect the student Don t wait for conclusion of criminal investigation Clear policies regarding when to refer to law enforcement Parties must have an equal opportunity to present relevant witnesses & other evidence Address attorney involvement Provide an appeal process 46
Title IX Coordinator Job Description Develop, Implement, Enforce & Monitor: Policies, Procedures & Practices Training & Educational Materials Processes Regarding Intake, Investigation, Findings & Resolution of Complaints Appropriate Dissemination of Information Institutional Compliance Recordkeeping Establish a process for continual improvement Appropriate dissemination of information (notices of charge, hearing outcome, duty to warn, remedies) Oversee institutional compliance Record keeping may become subject of litigation 47
Basic Title IX Compliance Checklist At least one Title IX coordinator has been designated to coordinate efforts to comply with Title IX, including investigation of any complaints All students and employees have been notified of the name(s), office address(es), and telephone number(s) of the coordinator(s) Grievance procedures for students have been adopted and published Grievance procedures for employees have been adopted and published Climate check Contingency protection plan for the victim during the investigation The following have been notified of a policy of nondiscrimination on the basis of sex: Applicants for admission and employment Students and parents of students Employees Sources of referral of applicants Unions, professional organizations Notification of a policy of nondiscrimination on the basis of sex has been placed in the following: Local newspapers School newspapers and magazines Memoranda or other written communications distributed annually to each student and employee Announcements, bulletins, catalogs, student and faculty handbooks Application forms The above-listed publications are free of text and illustrations suggesting differential treatment on the basis of sex Admission and recruitment representatives (including counselors or student advisors and personnel officers) have been advised of the nondiscriminatory policy and required to adhere to the policy Training is provided for staff and faculty. 48
