setting the stage hbcu 2012

Setting the Stage: Overview of Title IX

Institutional Obligations and Enforcement Context

Steven J. Healy

© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC

Agenda

• Statutory, regulatory requirements and OCR guidance

• OCR investigation/enforcement process

• Sexual harassment/violence definitions

• Scope of Title IX coverage

• Summary of institutional obligations

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Title IX

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.

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Title IX Regulations - 34 C.F.R. Part 106

PART 106 – NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

• § 106.4: Assurance of compliance required of recipients of federal financial assistance

• § 106.8: Designation of responsible employee and adoption of grievance procedure

• § 106.9: Notification of Title IX nondiscrimination obligations in education programs and employment

• § 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 . . .”

http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html4


Dep’t of Educ. Office for Civil Rights

• “The mission of the Office for Civil Rights is to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”

• Enforces laws that prohibit discrimination in education on basis of race, color, national origin (Title VI), sex (Title IX), disability (Section 504 & ADA) and age (Age Discrim. Act 1975)

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Dep’t of Educ. Office for Civil Rights

• OCR activities:

- Investigates individual complaints

- Conducts agency-initiated compliance reviews

- Provides technical assistance to promote voluntary compliance

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OCR Enforcement Process

• Theoretically, negative OCR findings can result in:

- loss of federal funding through Dept. of ED proceedings, or

- referral to Dept. of Justice for litigation

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OCR Enforcement Process• Practically, resolutions are

negotiated with recipients, who take “voluntary remedial actions”

- Policy issues: policy deficiencies are remedied

- Example individual complaint remedies:

Providing changes in class and residential arrangements

Providing counseling, academic, medical and other supports and accommodations

Providing broad-based training for students, employees8


Civil Remedies• Title IX nondiscrimination obligations

may be enforced in court by individual or class actions

• “deliberate indifference” standard applies

• Compensatory damages and injunctive relief available

• Plaintiff’s attorney’s fees and costs available

• State nondiscrimination statutes may provide additional remedies, different liability standards9


OCR Title IX Resources• April 2011 OCR Dear Colleague Letter:

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

• OCR 2001 Revised Sexual Harassment Guidance: http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

• 2010 Dear Colleague letter on Harassment and Bullying: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

• OCR Compliance Reviews & Resolutions: http://www2.ed.gov/about/offices/list/ocr/docs/investigations/index.html#title9res

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Sexual Harassment Definition• Unwelcome conduct of a sexual nature

- includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.

• Student-to-student harassment:

- creates hostile environment if conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.

• The more severe the conduct, the less need there is to show a repetitive series of incidents to prove hostile environment, particularly if the harassment is physical (e.g. rape=hostile environment) 11


Sexual Violence Definition

• Sexual violence is a form of sexual harassment prohibited by Title IX.

- Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol

- An individual also may be unable to give consent due to an intellectual or other disability

- May include rape, sexual assault, sexual battery, and sexual coercion

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Scope of Coverage

• Title IX protects students from sexual harassment in an institution’s education programs and activities, including:

- All academic, educational, extracurricular, athletic, and other programs of the institution

- On-campus, off-campus, in transit, sponsored at other locations, etc.

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Scope of Coverage• Institutions may have obligation to

respond to student-on-student sexual harassment that initially occurred off campus and outside institution’s education program or activity

- If student files a complaint re off-campus conduct, institution “must process the complaint in accordance with its established procedures.”

- Should consider and address on-campus continuing effects of off-campus sexual harassment (e.g., on-campus retaliation by alleged perpetrator or friends)

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Scope of Coverage• Title IX protects third parties from sexual harassment or violence in an institution’s education programs and activities

- E.g.: Title IX protects a high school student participating in a college’s recruitment program, a visiting student athlete, and a visitor in a school’s on-campus residence hall

• Title IX prohibits discrimination/harassment by faculty, staff

• Title IX protects employees from sexual harassment

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Scope of Coverage

• Title IX also prohibits gender-based harassment, including:

- acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, even if those acts do not involve conduct of a sexual nature

- discriminatory sex stereotyping (e.g., harassment of gay and lesbian students)

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Summary of Institutional Obligations

• If institution knows or reasonably should know about sexual harassment that creates a hostile environment, Title IX requires immediate action to eliminate the harassment, prevent its recurrence, and address its effects.

• Must designate Title IX Coordinator, publish notice of nondiscrimination, and adopt and publish grievance procedures.

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• Train employees to report harassment to appropriate institutional officials

• Train employees with authority to address harassment, or who are likely to witness it or receive reports, how to respond properly

- OCR examples: “teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.”

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• Investigate complaints adequately, reliably and impartially

• Provide grievance procedures that promote prompt, equitable resolution of complaints

• Undertake education and prevention efforts

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setting the stage hbcu 2012

Education

llc dinse knapp mcandrew

ocr title

sex title

sexual nature

sexual battery

sexual assault

notification of title

form of sexual harassment