GOAL 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

Major Statutes 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)

District Obligations Under Title IX 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.

NJ Administrative Code 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

Protected Characteristics May not engage in discriminatory practices against students or staff based on: Race, creed, color, national origin, ancestry, age, marital status, affection 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

Defining Sexual Harassment 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

Reporting 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

Quid Pro Quo 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

Examples of 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.

Hostile Educational Environment 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

Examples of 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

Standard of Proof 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

Legal Imperative to Address Diverse Student Population 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

Equal Access & Disparate Impact 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.

Role of Affirmative Action Officer 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

Aligning Response with HIB & Dating Violence Statutes 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

Key Elements of Dating Violence Statute 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

Dating Violence Statute Definitions “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 Definitions (cont’d) “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

Protocol for Staff Member 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

Summary 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