Title VI and Title IX: Protecting Against Discrimination

1. Title VI Title IX

2. Eddie Graham P O Box 10 Maynardville, Tn. 37807 grahame@ucps.org

3. No person in the United States shall, on the ground of race, color, or national origin , be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

4. 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.

5. School Athletic programs Special Education programs School Transfers Discipline Student Assignment Field Trips Student Organizations Classroom Instruction Ability Grouping Seat Assignment Water Breaks Hall Passes Any other daily activities associated with public education

6. Students Teachers or other faculty Parents Coaches School Administrators Counselors Cafeteria employees Contract workers Bus Drivers Any person who behaves in violation of Title VI or Title IX so that a protected class is unable to enjoy the programs and/or activities of the LEA could violate the statutes on behalf of the school system.

7. As long as the differences and diversities of mankind exist, democracy must allow for compromise, for accommodation, and for the recognition of differences. - Eugene McCarthy

8. Does not apply only to minorities. Title VI covers all discrimination based on a persons race, color, or national origin, whatever it may be.

9. Disparate Impact : occurs when a policy or action by the LEA that is facially neutral has the impact of discrimination. Meaning that the policy or practice results in the different treatment of students based on their race, color or national origin.

10. Is there a facially neutral practice that has a disproportionate adverse effect on minorities? Is there a significant, legitimate & non- pretextual justification for the practice? Is there an alternative, comparable method with less disproportionate adverse effects?

11. Most common: testing criteria for admissions or placement ACT minimum score of 16 (and other criteria) to enter teaching program. 80% of white students meet criteria, 30% of Black students meet criteria. Disparate Impact?

12. Facially neutral with disproportionate impact on blacks. Court found no significant, legitimate reason for the requirement. The requirement had no rational relationship to predicting a persons success in the teaching program. Criteria must have been validated as essential to participation in a program or activity. Example: SAT/ACT standardized tests.

13. Proof of intentional discrimination is not required under disparate impact claims. Only that there is a discriminatory RESULT . Good faith is not a defense.

14. Disparate Treatment : occurs when an individual is intentionally treated differently than other similarly situated individuals on the basis of race, color or national origin.

15. LEA/agent treat someone differently that interfered or limited students ability to participate in or benefit from a program or activity? Treatment occur in course of LEA/agents authorized or assigned duties? Different treatment based on race, color or national origin? Were there legitimate, non-discriminatory, non- pretextual reasons for the different treatment?

16. Intentional discrimination based on race, color or national origin is obviously a violation of Title VI; BUT The existence of a hostile environment based on race, color or national origin created, encouraged, accepted, tolerated or left uncorrected by an LEA is also a violation of Title VI.

17. Exists where there is harassing conduct that is sufficiently severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from activities or programs. Harassing behavior can come from anyone.

18. Key to hostile environment is severe, pervasive or persistent conduct. Factors such as the context, nature, scope, frequency, duration and location of incidents are taken into consideration. TOCR/OCR will ask: Would a similarly situated, reasonable person find the environment hostile?

19. Is there a racially hostile environment? Did the LEA have notice (actual or constructive) of the hostile environment? Did the LEA adequately respond to redress the hostile environment?

20. Complainant does not have to be the victim or target of the harassment. Acts can be directed at anyone as long as it is based on race, color or national origin. The harassment does not have to create a tangible injury.

21. If particular attention and care is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation. -Abigail Adams

22. Covers sexual harassment, pregnancy discrimination; any discrimination with a basis in the differences between genders.

23. Sexual harassment Unequal educational opportunities Unequal athletic opportunities Pregnancy discrimination Nonconformity with gender stereotypes

24. Any unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature that denies or limits a students ability to participate in or receive benefits, services or opportunities in an LEAs programs or activities.

25. Quid Pro Quo Hostile Environment

26. Occurs if a teacher or other employee conditions educational decisions or opportunities on the students submission to unwelcome sexual conduct.

27. Conduct of a sexual nature that is severe and pervasive but does not condition a decision or benefit on submission to sexual conduct. This type of harassment comes from other students or third parties who do not have authority over students.

28. Factors to consider: Degree to which the conduct affected another students education Type, frequency, and duration of conduct Relationship between the harasser and student Number of people involved in harassment Age of students involved Size of school, location of incident, context of harassment Occurrence of other incidents

29. LEAs have a responsibility to provide a nondiscriminatory educational environment and must ACT to redress hostile environments regardless of who is committing the violation or how the LEA finds out. Notice can be actual or constructive.

30. A student files a complaint with the districts Title VI/Title IX Coordinator A parent calls their childs teacher to report a harassing incident at school A school secretary witnesses a student verbally attack another student A teacher reports a harassing incident to the principal School faculty/staff witness derogatory flyers, posters around campus

31. An LEA has constructive notice if in the course of exercising reasonable care it should have known about the hostile environment.

32. Example: there are a rash of assaults on students taking place at school, one a week. All of the students assaulted are minorities. Example: there are several incidents of sexual harassment occurring during recess under a teachers supervision.

33. If the harasser is an agent or employee of the LEA, acting in the scope of his official duties the LEA is deemed to have constructive notice. This is especially true if the harasser has authority over the students. If there are no policies prohibiting racial and/or sexual harassment or procedures for reporting them, then the LEA has constructive notice.

34. All LEA employees who have the authority to address student discipline, who have the duty to report student misconduct, or who are perceived by students to have such authority or responsibility can violate Title VI and/or Title IX on behalf of the school if they do not act to stop harassment/discrimination.

35. Teachers and administrators are not mind readers and cannot be present at all times but what is important is the RESPONSE once you become aware of harassment/discrimination or intimidation/bullying. TOCR/OCR evaluates to determine if the LEAs response was APPROPRIATE .

36. The appropriateness of a response is determined by examining the reasonableness, timeliness and effectiveness of the response. The response must be reasonably calculated to prevent recurrence. Response should be consistent with existing disciplinary, grievance and anti-harassment policies.

37. Must respond promptly, thoroughly and impartially. Response can include separating victim from accused, providing training to all students/teachers involved, restricting contact between parties involved, contacting other appropriate authorities, preventing recurrences or retaliation.

38. Title VI & Title IX requires LEAs to have a person designated to coordinate efforts to comply with and address Title VI and Title IX issues.

39. Any overt or covert act of reprisal, interference, restraint, penalty, discrimination, intimidation, or harassment against an individual who has exercised his/her rights under Title VI or IX. Retaliation is prohibited by the regulations that implement both Title VI and Title IX. Finding retaliation does not require proof of the underlying charge and always constitutes intentional discrimination.

40. Do not take any adverse action against complainant after receiving notice of a complaint of discrimination. Even if the LEA has a legitimate reason for the action, try and wait out the process. If the LEA simply must act based on the situation, be sure to have documentation to support your legitimate reason for the action. Document, document, document!

41. Amy reports sexually harassing behavior by classmate Michael to her teacher. The teacher reports to the principal and both agree it is best to separate the students. They move Amy to another homeroom. Retaliation?

42. Where justice is denied, where poverty is enforced, where ignorance prevails, and where one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe. - Frederick Douglass

43. Tennessee Code Annotated 49- 6-1014 through 49-6-1019 covers harassment, intimidation or bullying in elementary and secondary education.

44. The ultimate measure of a man is not where he stands in the moments of comfort or convenience, but where he stands in times of challenge and controversy. -Martin Luther King, Jr.

45. Pregnancy discrimination: covers pregnancy and childbirth and falls under Title IX. Broad protection, also is unlawful to discriminate on the basis of an individuals parental, familial or marital status. Schools cannot bar a pregnant student from ANY school activities. Can offer special programs but they must be comparable to regular classes and only on a voluntary basis.

46. A student returning to school from childbirth must be readmitted in same academic setting. Cannot require medical documentation unless it is required of all students returning to school from a medical leave of absence.

47. Sexual Orientation discrimination/bullying: applies to lesbian, gay, bisexual and trans-gendered students (LGBT). Tricky: sex discrimination and sexual harassment are covered by federal law, state law, and district policy but, not harassment/discrimination based on sexual orientation.

48. HOWEVER , this does not mean that because sexual orientation is not currently protected that there is no protection for LGBT students. OCRs guidance notes that there has been at least one Title IX lawsuit, in which a student was awarded a judgment because the LEA failed to protect him from peer harassment in violation of the Equal Protection Clause. Also found violations of Title IX for harassment based on failure to conform to gender stereotypes.

49. This is a volatile area in the law ripe for litigation; you do not want to be the test case for the 6 th Circuit. Advice: treat sexual orientation harassment just like any other harassment. It would fall under your board policy as intimidation/hostile educational environment.

50. Bully: to treat abusively; to affect by means of force or coercion. Not your standard taking of lunch money anymore. Bullying, intimidation, harassment based on race, color, national origin or gender implicates not only federal civil rights laws but also state law and district/school policy.

51. Cyber bullying: sending or posting cruel sometimes threatening messages on the internet. Can be done by: -Sending mean, vulgar, or threatening messages; -Posting sensitive, private information about another person; -Pretending to be someone else in order to make that person look bad; -Intentionally excluding someone from an online group

52. On campus: violations of your internet or email acceptable use policy can and should be investigated and disciplinary action should be taken for violations. Off campus: schools must be very careful not to infringe on a students First Amendment rights to freedom of speech. However, if an off campus cyber bullying incident is affecting student activity while on campus then you have the ability and the obligation to become involved.

53. What can you do? Notify parents of victims and parents of cyber bullies of known or suspected cyber bullying. Notify the police if the known or suspected cyber bullying involves a threat. Closely monitor the behavior of the affected students at school for possible bullying. Talk with all students about the harms caused by cyber bullying. Remember cyber bullying that occurs off- campus can travel like wildfire among your students and can affect how they behave and relate to each other at school. Investigate to see if the victim(s) of cyber bullying could use some support from a school counselor or school- based mental health professional.

54. Schools are required to provide comparable facilities. Schools are not required to spend EQUAL amounts of money but not providing necessary funds is a violation. Big disparities are red flags. Schools can maintain separate teams where the team is based upon competitive skill or contact sports. If LEAs allow co-ed teams, must ensure no discrimination/harassment involved. Title IX simply requires equal athletic opportunity for members of both sexes .

55. Factors to Consider for Equal Opportunities: Equipment & supplies Scheduling of games & practice times Travel & per diem allowances Availability of coaching & academic tutoring Locker rooms, practice/competitive facilities Medical/training facilities & services Housing/dining facilities & services Publicity

56. Big issue: Booster Clubs . Regardless of where funds come from there should be comparable funds/facilities etcto all athletes. LEAs either have to bring other teams up to standard or tell the booster club no.

57. Respond promptly to allegations of sexual harassment Promptly notify the students parents and, when appropriate law enforcement authorities Interview the student Remain objective, but interested Interview witnesses named by the student

58. Interview the accused Interview witnesses identified by the accused Examine documentary evidence, if any Re-interview the student, if necessary Make a determination, prepare an investigation report, and take corrective action when warranted Follow up

59. Cardinal rule: We do not question children. We question one child at a time.

60. Pay attention to students; watch for signs of alienation. Get parents involved as soon as possible. Take proactive steps to educate about differences and teach acceptance of differences.

61. Most importantly, make sure faculty/staff can recognize harassment, discrimination, bullying and intimidation. Make sure all students, parents and faculty/staff are aware of the policy and reporting procedures. Place in handbooks, post on internet, send it home and have it signed & returned. If you have an issue call your board attorney BEFORE acting.

62. Step 3 Appeal Directors decision to the Board of Education Step 4 Appeal Board decision to the Office of Civil Rights (OCR)

63. Forms are in the front office of each school or contact my office The LEA policies may be found in the Union County Board Policy Manual Notice are placed in all student handbooks The Non-discrimination statement is posted at every school and on LEA website

64. Certificate of Completion This Acknowledges That (Type/write name in box) Has Successfully Completed Civil Rights Training 2013 Print