TITLE IX: Helping RPS stay in compliance

with federal guidelinesPresented by Nicole M. Thompson, Esquire, School Board Attorney

What is Title IX?• Title IX is the federal civil rights law that prohibits discrimination on

the basis of sex in federally funded programs and schools.

Why do we care about this now?

• Office of Civil Rights (OCR) issued a “Dear Colleague” Letter as well as a 46 page Question and Answer document regarding how programs that receive federal funds should respond to a complaint of discrimination and/or sexual violence in violation of Title IX. • RPS is a program that receives federal funds! • All school divisions and colleges receive some sort of federal funding so this

applies to everyone!

Why do we care about this now?

• Guidance issued in April of 2014 states that “A school needs to ensure that responsible employees with the authority to address sexual violence know how to respond appropriately to reports of sexual violence, that other responsible employees know that they are obligated to report sexual violence to appropriate school officials, and that all other employees understand how to respond to reports of sexual violence.”

• Questions and Answers on Title IX and Sexual Violence, page 38.

INITIAL THINGS TO REMEMBER

• If you receive a report of sexual violence, you must do something! • The worst thing is to do nothing!• OCR uses a higher standard than the law! • Uses the “known or should have known standard.”

NOTICE TO THE SCHOOL DIVISION

When are you deemed to have received notice?

NOTICE CAN COME FROM MYRIAD OF SOURCES

• According to OCR, when a responsible employee knew or should have known is when the school division should have notice. • Examples of when there is notice: • Reported to the Title IX Coordinator; • Reported to an administrator, a teacher, or school law enforcement; • If it is witnessed by an administrator; • Reported on social networking sites and/or in the media.

• JUST BECAUSE A STUDENT DID NOT FOLLOW A “PROCEDURE” OR “PROPER PROCEDURE” DOES NOT MEAN THAT THE SCHOOL DIVISION DOES NOT HAVE NOTICE!

SCENARIO #1Tonya is a 7th grader who, with her best friend, Sable, snuck into a party held by Mel, a 10th , grader at the local high school. Tonya tells her best friend that she was cornered by Mel and touched in a way that made her uncomfortable. The only person she tells is Sable. However, Sable becomes worried about her friend and tells Ms. Nelson, a teacher at Tonya and Sable’s school.

Does the school division have notice?

SCENARIO #2

Julian, a 2nd grader, who walks, arrives at school one morning covered in dirt and his clothes are ripped. The custodian, Mr. Thomas, sees him coming into the building and asks what happened to him. He tells Mr. Thomas some 5th grade girls beat him up for wearing a pink shirt. Mr. Thomas takes him to the nurse’s office. In the nurse’s office, he repeats the story that he told to Mr. Thomas. The following week, Mr. Thomas sees Julian once again walking into the school and, once again, Julian’s clothes are ripped. He tells Mr. Thomas that the girls beat him up again. However, this time, he also tells Mr. Thomas that on both days, the girls “grabbed at him,” and called him “gay.”

QUESTIONS FOR SCENARIO #2

• Is Mr. Thomas obligated to report this incident?• Is Mr. Thomas a responsible employee?• If Mr. Thomas is a responsible employee, when is the School Division deemed to have notice?• Is it fair to say that Mr. Thomas should have known about the “sexual violence” after the first report by Julian?

WHO IS A RESPONSIBLE EMPLOYEE?

• OCR does not define who is a responsible employee, let alone state who is a responsible employee by position (i.e. does not say a principal is a responsible employee vs. a bus driver or school cafeteria worker); • Only says that the “responsible employee” must report the incident to

the Title IX coordinator. • REMEMBER THAT THESE GUIDELINES APPLY FROM KINDERGARTEN

THROUGH POST GRADUATE SCHOOL. • A responsible employee at one level may not be a responsible employee at

another level; • Should consider a student’s age, the presence of a disability, and the severity of a disability.

Definition of a Responsible Employee

• Who has the authority to address sexual violence; or• Who has been given the duty to report incidents of sexual violence or

any other misconduct by student to the Title IX coordinator or other appropriate school division designee; or • Whom a student could reasonably believe has this authority or duty. GIVEN THIS BROAD DEFINITION, CONCEIVABLY EVERY ADULT IN THE

SCHOOL DIVISION COULD BE A RESPONSIBLE EMPLOYEE!!Reminder: All employees must be trained to know who is responsible.

EVERYONE’S RESPONSIBILITIES• What is required of you under the Administrative Procedures: • If you receive the initial report, you must notify your principal immediately! • Cooperate any investigation that is started.

• What is required of you by OCR standards:• Notify someone who can address the issue immediately; • Implement the interim measures; • Ensure that there is not a hostile environment; • Implement the permanent remedies.

NOTICE HAS BEEN GIVEN. NOW WHAT?Specific steps must be taken to remain in compliance.

STEPS THAT SHOULD BE TAKEN ONCE NOTICE OF THE SEXUAL

VIOLENCE IS RECEIVED1. Must investigate;2. Must take immediate and appropriate steps to end the sexual

violence; 3. If a hostile environment has been created, you must eliminate the

hostile environment; 4. Must prevent a reoccurrence of the sexual violence in the school

setting; 5. Remedy the effects of the sexual violence.

Who must investigate?

• OCR does not specify who must investigate. • Prior to the first day of school, RPS will be issuing the Administrative

Procedures instructing administrators and department heads how to go about handling a Title IX complaint. • They will be shared with you by your principal.

What must the investigation include?

• Whether the conduct occurred?• If the conduct occurred: • What actions will the school take to end the sexual violence; • Eliminate the hostile environment; and • Prevent the sexual violence from reoccurring.

Let’s revisit Scenario #1

Would you even have a responsibility to investigate this?YES!!!!!

Why?Even if the off campus sexual violence did not occur in the context of an education program or activity, the situation must be investigated to determine if there are any continuing effects of the sexual violence on campus or if they are contributing to a hostile environment on campus.

• The school is responsible to protect the student of off campus violence from the alleged perpetrator or his or her friends.

• School should also take steps to protect other students from alleged perpetrator.

Let’s revisit Scenario #2

• Under RPS practices and policies, it is obvious that you have to investigate this!• Door to door policy.

Must take immediate and appropriate steps to end the sexual violence and

if a hostile environment has been created, you must eliminate the hostile environment

• These are together because they are often one in the same. • The steps you take for one are often the steps that you will take for

the other. • So how do you do this? • Look at the specific facts of your situation.

REMEMBER: Even if you are not the one doing the investigation, you are going to have to a least provide ideas for this piece!

Things to consider when stopping the sexual violence and preventing a hostile environment?

• Does the alleged victim travel to school alone?• Does the alleged victim travel to school with the alleged perpetrator

or his or her friends?• Are the alleged victim and perpetrator in the same classes?• Have the friends or relatives of the alleged perpetrator said or done

anything to the alleged victim after the incident?• Are there places in the school building where another instance of

sexual violence could occur between the victim and the perpetrator?THIS LIST IS NOT ALL INCLUSIVE!!!

Let’s revisit Scenario #1

Let’s brainstorm some ideas on how to prevent the sexual violence from reoccurring to Tonya and how to prevent or eliminate a hostile environment in the school setting.

Let’s revisit Scenario #2

Let’s brainstorm some ideas on how to prevent the sexual violence from reoccurring to Julian and how to prevent or eliminate a hostile environment in the school setting.

INTERIM MEASURESWhat should schools do while the investigation is pending?

Reminder!TITLE IX IS ALL ABOUT ACCESS!!!

• The interim measures taken cannot limit the alleged victim’s access to his or her education!• When taking the interim measures, remember that the interim measures

should not limit the alleged victim’s access to classes, transportation, etc. • OCR suggests states that the interim measures should “minimize the burden

on the complainant.”

While the investigation is pending…

• OCR does not offer specific suggestions of what interim measures should be taken: • State that they should be determined on a case by case basis.

• (No kidding)

• Suggestions: • Give the victims and/or victim’s parents options to how the parties can be

separated; • Give the victims and/or the victim’s parents periodic updates on the

investigation; • Determine if counseling needs to be offered for the alleged victim to access

education.

LEGAL ADVICE

• USE COMMON SENSE!!!• What would you want for you, a family member, or a close friend in

this situation?• New class schedule?• New transportation schedule?• If the student is a walker, escort to and from school?

• If there is a glaring hole in security of the building, school grounds, or student supervision, tell your administrator so that it can be fixed. • Can be an interim measure and a remedy (They can overlap!)

EVERYONE’S RESPONSIBILITIES

• Make sure your office or classroom doors are locked when you are not present; • If you are in charge of a group of students, before school, during

school or after school, do not leave them without adult supervision; • If you see something, say something!

REMEDIESWhat can be done to fix the situation so it won’t happen again?What can be done to prevent or eliminate a hostile environment?

STRATEGIES FOR REMEDIES

• Make the interim measures permanent.• Continue to offer services that were offered as an interim measure!

• Different class schedule;• Different transportation; • Escort if a walker; • Allowing make up tests or extra time to take exams; • Allowing school to be missed without truancy implications.

OCR says that even if services offered as an interim measure were turned down, you must still offer them as a permanent remedy.

THINGS TO REMEMBER REGARDING REMEDIES!

• If academic achievement is affected and/or behavior is affected, the student should be referred to the Child Study Committee to determine if the student should be evaluated for special education services and/or what other interventions should be put in place for a student; • If the school determines that the alleged victim needs certain services

to access his or education, then the school must pay for it. • OCR Example: A school that offers counseling on a fee basis must not make

the alleged victim pay the fee if the school believes that the counseling is need to protect the alleged victim from further harm.

Does the Title IX Coordinator or other School Official Have to Comply with the Request to Keep the Information Confidential?

• Per OCR, the Title IX Coordinator and/or school official responsible for evaluating requests of confidentiality should make every effort to respect the request, but should “evaluate the request in the context of the school’s responsibility to provide a safe and nondiscriminatory environment for all students.”• What does this mean?• The request should be respected but the school division should still conduct

as much as an investigation as it can to ensure the safety and educational access of all students.

REMINDER: School Division is still required to conduct as much as an investigation as it can while maintaining the complainant’s confidentiality.

What is allowed when the student asks for confidentiality?The school must inform the student that honoring the request for confidentiality will limit the school’s ability to “respond fully” to the incident and/or punish the perpetrator and/or prevent retaliation;

If instances of retaliation is suspected, even if there isconfidentiality, then the school must take immediate steps to stop the retaliatory actions.Information can be shared, but ONLY with individuals responsible for handling the school’s response to incidents involving sexual violence.

Rights of Both Parties Under Title IX

Yes, the alleged perpetrators also have rights under Title IX.

Both the alleged victim and the alleged perpetrator have equal rights in a Title IX investigation in the following regards:

• Both parties have equal opportunities to present relevant witnesses and other evidence;

• If the school permits lawyers to be present during interviews and/or hearings, both parties shall be permitted to have them. The ability for the lawyers to speak and participate is to be applied equally.

• Third party expert testimony, if allowed, must be allowed for both parties; • If there is an appeal of a decision, both parties are permitted to appeal; • Both parties must be notified in writing of the outcome of the investigation/hearing.

• Both parties should be notified concurrently. • School should not notify perpetrator of remedies offered or provided to alleged victim. ALL OF THIS INFORMATION IS CONTAINED IN THE ADMINISTRATIVE PROCEDURES

THAT YOUR PRINCIPAL WILL BE RECEIVING!

QUESTIONS???