1. 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

2. 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)

3. 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.

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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

11. 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 to work colleagues
Student witnessing widespread bullying activity in classroom

12. 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

13. 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

14. 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.

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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