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Understand legal requirements related to affirmative action, including responsibility to protect students and adults from sexual harassment and other forms of discrimination
Understand the relationship between affirmative action and other statutory requirements, including HIB, teen dating violence, equity in education
GOALS
Overview of statutory requirements related to affirmative action, protection from discrimination
Review of basic scenario on sexual harassment
Overview of HIB, dating violence statutes Review of scenarios on sexual harassment,
employment discrimination/retaliation, bullying, teen dating violence
Summary / Q & A
Organization of Program
Title IX Title VII of the Civil Rights Act IDEIA Section 504 Americans with Disabilities Act New Jersey Law Against Discrimination New Jersey’s Anti-Bullying Bill of Rights New Jersey Teen Dating Violence Prevention Statute DYFS CEPA – Conscientious Employee Protection Act
(Whistleblower Law)
Major Statutes
School Districts must:
Disseminate a notice of nondiscrimination;
Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and
Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.
District Obligations Under Title IX
N.J.A.C. 6A:7 – Managing for Equality and Equity in Education
Guarantees equal access to education programs and services for all students
Services include teaching of challenging curriculum, differentiated instruction, formative assessment, qualified teachers, high expectations for student learning
Applies to all students, preK – 12
NJ Administrative Code
May not engage in discriminatory practices against students or staff based on:◦ Race, creed, color, national origin, ancestry, age,
marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status
◦ Includes protections for pregnant students◦ New protections under HIB against bullying due to
“any other distinguishing characteristic”◦ New protections for “dating partners” under teen
dating violence statute May not retaliate for reporting harassment/
discrimination
Protected Characteristics
Unwelcome conduct of a sexual nature Conduct of a sexual nature includes both
physical and verbal conduct, and involves conduct that is related to the victim’s gender, sexual orientation or sexual identity
Key test – conduct would not have occurred “but for” the victim’s gender, sexual orientation, etc.
Two types of sexual harassment◦ Quid Pro Quo◦ Hostile Work Environment
Defining Sexual Harassment
Staff members may◦ Report to Affirmative Action Officer◦ Report to another administrator◦ Go to NJ Division on Civil Rights◦ File Claim with Commissioner of Education◦ Go to US EEOC◦ File claim in State or Federal Court
No need to confront harasser first
Reporting Sexual Harassment
When a school employee (or student) explicitly or implicitly conditions submission to sexual advances as a term or condition of employment (or participation in school)
Often includes the threat of adverse action for failure to submit to advances or promise of favorable treatment if advances are accepted
Includes acts of physical sexual violence, as well as verbal acts
Quid Pro Quo
Threat of violence if refusal to submit to sexual advances
Promise of promotion or other favorable treatment
Threat of termination Threat of humiliation – Facebook comments,
sharing of explicit images, etc.
Examples of Quid Pro Quo
For adult - Harassment that is sufficiently severe, persistent or pervasive to limit an employee’s ability to function in the work place
For student – Harassment that is sufficiently severe, persistent or pervasive to limit a student’s ability to participate in or benefit from an educational program
Could be a victim even if student or employee is not the target of the offensive behavior
Could be a single incident
Hostile Educational Environment
Unwelcome touching – i.e. rubbing shoulders Offensive gestures – simulated kissing,
sexual activity Comments about another’s body Sharing of inappropriate sexual jokes or
comments Forwarding of inappropriate jokes or images
via email to work colleagues Student witnessing widespread bullying
activity in classroom
Examples of Hostile Educational Environment
Preponderance of the Evidence – It is more likely than not that the alleged harassment occurred
Should not use other standards such as “clear and convincing” or “beyond a reasonable doubt”
School District may still find sexual harassment occurred even if law enforcement chooses not to pursue a criminal investigation
Standard of Proof
Mr. Jones, long-time principal Ms. Adams, secretary to Mr. Jones for last 20
years Good friends outside of work Often engage in bantering back and forth –
including comments of sexual nature Neither person is offended Is this sexual harassment?
Scenario – Sexual Harassment
Addressing Achievement Gaps – based on race/ethnicity, disability, poverty
Multicultural Education in Core Curriculum Equal access for all students to challenging
curriculum, extra-curricular opportunities Addressing Bullying, Dating Violence Protecting Religious Expression
Legal Imperative to Address Diverse Student Population
USDOE Office of Civil Rights becoming pro-active in looking at disparate impact in areas such as graduation rates, access to honors courses, student discipline, services for ELLs
Looking for patterns from educational data, initiating reviews on their own
Overlapping protections under Title IX, HIB, Dating Violence, IDEIA, etc.
Equal Access & Disparate Impact
Ensure that district is in compliance with all Title IX requirements, including requirements regarding:◦ Reporting and investigation of sexual harassment
complaints by students and staff◦ Training of staff◦ Enactment of required policies, procedures, notifications◦ Coordinating Title IX compliance with other statutory
requirements (bullying, dating violence, IDEIA) Ensure that district has procedures to address all
other forms of discrimination, and implements all other aspects of NJAC 6A:7
Role of Affirmative Action Officer
Sexual Harassment will in many cases constitute HIB and dating violence
Must be addressed under Title IX and relevant state statutes, with some variations in procedures
Need to be aware of and be able to use appropriate district forms and procedures
Aligning Response with HIB & Dating Violence Statutes
Under Title IX, a school district will not be found liable for harm to a student unless the district is shown to have been “deliberately indifferent” to the student victim and has actual knowledge– Davis v. Monroe Sch. Dist.
Under NJ LAD, district liable if it fails to promptly take reasonable measures to end the harassment, and constructive knowledge is sufficient for liability – L.W. v. Toms River
Under HIB, may be liable if LAD standard met AND/OR may liable if district fails to follow extensive procedural requirements
Comparison of Legal Liability UnderTitle IX / LAD/ HIB
• Requires dating violence education in health/PE curriculum for grades 7-12
• Defines “dating violence” and “dating partner”• Established task force that created a model for
addressing teen dating violence• Policy includes guidance, protocols and detailed
procedures for identifying, reporting, investigating and responding to alleged incidents
Key Elements of Dating Violence Statute
“Dating Violence” means a pattern of behavior where one person threatens to use, or actually uses physical, sexual, verbal, or emotional abuse to control a dating partner.
“Dating Partner” means any person involved in an intimate association with another individual that is primarily characterized by the expectation of affectionate involvement, whether casual, serious, or long-term
Dating Violence Statute Definitions
“At school” means in a classroom or anywhere on school property, on a school bus or other school-related vehicle, at an official school bus stop, or at any school-sponsored activity or event whether or not it is on school grounds
Caution – may still be responsible under HIB, Title IX, NJ LAW to address conduct even if occurred off school grounds
Dating Violence Definitions (cont’d)
Verbally report suspected incidents of dating violence to the principal or principal’s designee as soon as possible (must be same day)
Written report must follow no later than one school day after verbal report – NOTE tighter timeline than HIB
Must report if witnessed incident, or received reliable information about possible incident
Note – do not make own judgment call that some sources are not reliable
Protocol for Staff Member
NJDOE Model Policy includes additional information in protocol for staff members, including:
Separate the victim from the aggressor. Speak with the victim and the aggressor
separately. Speak with witnesses or bystanders
separately. Monitor the interactions of victim/aggressor. CAUTION – DO NOT take on role of
investigator
NJDOE Model Policy Protocol/Caution
In Scenarios 1 – 5, determine if sexual harassment has occurred
In Scenarios 6 and 7, determine if sexual harassment, HIB and/or teen dating violence has occurred
Review of Scenarios
Recognize legal requirements related to sexual harassment identification, reporting, protection from retaliation
Understand relationship between Title IX and other statutory protections under HIB and teen dating violence and personal responsibilities under each
Know how to apply in real world settings
Summary