Presented by: David Nash, Esq. 5/4/12

 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

 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

 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)

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.

 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

 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

 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

 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

 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

 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.

 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

 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 to work colleagues  Student witnessing widespread bullying activity in classroom

 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

 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?

 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

 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.

 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

 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

 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

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” 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

 “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

 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

 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

 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

 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