The Title IX Sexual Harassment Rules

What We Will Cover

• I. What is Title IX?
• II. Overview of the Sexual Harassment Rule
• III. Definition of Sexual Harassment
• IV. What to Do When You Receive a Report – the Real World
• V. Emergency Removal

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I. What is Title IX?

Title IX

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, Public Law 92-318 of the Education Amendments of 1972

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How is Title IX Enforced?

• U.S. Department of Education, Office for Civil Rights

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• Assurances provided when school district receives federal funding

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• Private lawsuits for money damages

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What could be meant by “discrimination”?

• Any act that differentiates in a negative way based on sex

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• Unequal access to opportunities -- including athletics – based on sex

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• Different treatment in a class or grading based on sex

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• Refusal to hire or promote because of sex

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• Bullying, Harassment or Mistreatment Based on Sex

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• “Sexual harassment”

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Discrimination based on sex

Bullying based on sex

Sexual harassment

Harassment based on sex

How Title IX is layered on top of other �obligations related to sexual harassment

• Mandatory Reporting of Sexually Violent Crime

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• Mandatory Reporting of Child Abuse

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• State Law Prohibiting Bullying

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• Other federal laws prohibiting discrimination based on other protected characteristics such as race, disability, national origin, ethnicity.

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II. Overview of “Sexual Harassment”

The sexual harassment rule in a nutshell:

A recipient with actual knowledge of sexual harassment in an education program or activity against a person in the United States must respond promptly and in a manner that is not deliberately indifferent.

“A Recipient with Actual Knowledge”:

Actual knowledge means notice of sexual harassment or allegations of sexual harassment to any employee of an elementary and secondary school.

• EVERYONE who knows is responsible for reporting
• Create a culture of reporting
• Allegations count! The test is not whether the allegations can be proven at the time they arise; the test is whether the allegations, if true, are sexual harassment at the time they are heard.

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Examples of Actual Knowledge

• The child nutrition manager at your school hears the kids discussing how a teacher and a student are having sex.

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• The department chair learns from his mentee that the assistant principal has sent her a picture of his penis.

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• A student confides in a teacher that another teacher has sent her inappropriate text messages.

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“In An Education Program or Activity”

• Covers conduct at “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.”

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• Conduct must have occurred in the United States.

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• Conduct occurring outside of the school context is not Title IX, but it could have an impact.

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“Must Respond Promptly and in a Manner that is �Not Deliberately Indifferent.”

• REPORT ALL ALLEGATIONS OF SEXUAL HARASSMENT TO TITLE IX COORDINATOR (Michael Pruitt).

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• Follow the grievance process to demonstrate no deliberate indifference.

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• Alleviate the hostile environment so that any alleged victim can access education.

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Flowchart

School

Title IX Coordinator

Investigator

Decision

Maker

Appeal to Board

The Cast – Roles in Title IX

• Complainant: person who is the alleged victim of sexual harassment

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• Respondent: person who is the alleged perpetrator of sexual harassment

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• Title IX Coordinator: person who keeps the process on track

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• Investigator: person designated to conduct an unbiased investigation

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• Decision-Maker: person who makes the decision about whether sexual harassment occurred

Title IX Terms

• Report: the initial statement made to the Title IX Coordinator, which can come from any person
• Formal Complaint: a document that can only be filed by the complainant, parent/guardian of complainant, or Title IX Coordinator that starts the formal grievance process
• Supportive Measures: non-punitive steps that can be taken to help a complainant and/or respondent
• Punitive Measures: discipline for sexual harassment which may only be imposed after a formal grievance process
• Emergency Removal: process for removing a student from school or activity if a substantial threat to safety exists

III. Definition of “Sexual Harassment” under � Title IX

3 Types of “Sexual Harassment”

1. Quid pro quo: An employee conditions a benefit on unwelcomed sexual conduct

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• Hostile Environment

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• Four Criminal Offenses:
• Sexual Assault
• Dating Violence
• Domestic Violence
• Stalking

Type 1: Quid Pro Quo

• An employee conditioning a benefit on sexual conduct or attention

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• Includes the threat of poor treatment if the victim will not consent to sexual conduct

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• The "sexual conduct" may be verbal or physical, and the "asking" may be done either openly or implied; regardless, it must be unwelcome

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• Can only be perpetrated by an employee

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• Look out for supervisor-subordinate relationships; coach-athlete relationships; and mentor-mentee relationships

Example of Quid Pro Quo Harassment

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A new teacher shares with you that the assistant principal has been calling her “Beautiful” as a nickname, texting her in the evenings, and mentioned “I’ll arrange it so that I’m the one who evaluates you” while at the same time grabbing her around the waist.

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Example of Quid Pro Quo Harassment

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A student tells you that his coach has asked him for pictures of his “junk” and said something to the effect of “if you want to keep your playing time, you’ll help me out.”

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Type 2: The Hostile Environment Standard

• A hostile environment occurs when unwelcome conduct is so severe, pervasive, AND objectively offensive that it effectively denies a person access to education or employment.
• Severe could be a single incident

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• Pervasive could be a myriad of small incidents which standing alone would not be harassment

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• Both severity and pervasiveness depend on circumstances, age, maturity, and roles

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Example of Hostile Environment Harassment

Parent of male student reports that other boys threw water on their son and said that he urinated himself on overnight trip. Then, teacher reports to you that a group of 9th grade girls referred to this child as a derogatory word because he complained about the water incident. Finally, a student reports that the other kids are telling this child that their older brother is going to beat him up because he’s gay.

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Example of Hostile Environment Harassment

A teacher assistant in your elementary school comes to you because the teacher with whom he is working is making him feel uncomfortable. While working together, the teacher has grabbed his buttocks and alluded to having sex in the closet of the classroom. The teacher assistant has told the teacher that he is not interested, but the teacher has continued every day to comment on what he is wearing, compliment his butt, and stare at him during class.

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Example of Hostile Environment Harassment

Female student reports that another student raped her over holiday break. The friends of the alleged perpetrator spread rumors that the alleged victim is a slut and a liar. The alleged victim shows you text messages from three friends calling her a “snitch” and a “ho.” When she walks to class, these students throw their trash from lunch at her and yell that she “belongs in the trash.”

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Type 3: The Four Crimes

• Sexual assault -> any forcible or non-forcible sex offense

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• Dating violence -> violence committed by a person who is or has been in a romantic or intimate relationship with the victim

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• Domestic violence -> violence committed by a person who is the spouse or similarly situated relationship to the victim, cohabitating with the victim, or shares a child with the victim

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• Stalking -> conduct directed at a specific victim that would cause a reasonable person to fear for their safety or suffer emotional distress

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Example of Sexual Assault

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Student alleges that another student pulled him into the bathroom and put her hand down his jeans and touched his penis without consent.

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Example of Dating Violence

Two students are a romantic couple for what has appeared to be a consensual relationship. One student alleges, however, that during the basketball game last Friday night, while they were just outside of the gym, they were making out and then he pulled down her pants and penetrated her. The student states that she told her boyfriend that she did not want to have sex.

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Example of Domestic Violence

One of the bus drivers and a child nutrition staff member at your school are married. The child nutrition worker comes to you because she is terrified of her husband, claiming that he has come into the cafeteria and pushed her into one of the refrigerators in the back.

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Example of Stalking

A student tells you that another student has been sending him messages constantly. At first it was a joke, but he has asked it to stop and the other student has refused. In the locker room, this student appeared out of nowhere while the alleged victim was changing. He has been in the library and seen this person just staring at him from a distance.

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The Investigation�

• If Title IX formal complaint is filed, Title IX office will assign Title IX Investigator
• Investigation requires formal notices, review of evidence, and formal written investigation report
• Investigator is not permitted to be decision-maker
• Investigations take at least 30 days, often longer
• Informal resolution is available during the course of the investigation

After the Investigation:

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• Either party may request a hearing and/or submit written questions. Both parties have the right to submit written statements.

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• Superintendent or designee makes a decision about responsibility and determines the appropriate discipline.

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• Appeal to the Board of Education is available to both parties.

������IV. What to Do When You Receive a Report of Harassment – the Real World

Step 1: Always Report

• Your mandatory reporting obligations to law enforcement and social services are still in place
• Serious crimes that occur on school campus must be reported to law enforcement
• Violent crimes against children, sexually violent crimes against children, and misdemeanor child abuse must be reported to law enforcement regardless of when or where the allegations occurred
• Child abuse or neglect must be reported to social services
• Reporting obligations are separate from Title IX obligations

Step 2: Determine if Special Title IX Investigation is Required

• Question 1: Did this incident occur in the education program?
• Question 2: Do the allegations, if true, meet one of the three sexual harassment definitions?
• Quid pro quo (employees only)
• Hostile environment
• Crimes: sexual assault, dating violence, domestic violence, stalking
• If yes to both questions, report to Title IX Coordinator.
• If you are not sure, report to Title IX Coordinator.
• If “no” to Question #1, determine how you can support the alleged victim at school.
• If “no” to question #2, refer to the bullying/harassment policy for students or report to Human Resources for employees.

Step 3: Develop and Implement Supportive Measures

• Work with complainant, respondent, and other school officials to determine “supportive measures” regardless of whether a formal Title IX complaint is filed.
• Supportive measures can include any change to support complainant/respondent, except discipline
• Examples: course changes, extensions on assignments, counseling, escorts, separation during school day

�� �� ���V. Emergency Removal�

What is Emergency Removal in the Sexual Harassment Context?

• Emergency removal prior to the decision-maker’s determination is allowed if a student’s continued presence at school or in a particular activity poses a demonstrable threat to health or safety

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• The scope of the removal must be tailored to the safety concern, not discipline

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• Emergency removal is NOT a suspension

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How Does Emergency Removal Work?

• There must be evidence to demonstrate the health or safety concern (not the justification for discipline)

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• A school-level team must assess the evidence presented that justifies the removal

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• Automatic appeal is directed to the Superintendent

Where is the location for removal?

• Removal can be assignment to alternative school, alternative placement, or away from a particular activity

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• Removal includes exclusion from particular classes or teams if the student cannot be placed in an equivalent program

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