1. Are You a “Responsible” Employee? Presented by: JIM WALSH

2. New Guidance OCR has issued new guidance re: sexual violence, hostile environments, and Title IX. Much of this is aimed at higher ed, but the standards are also applicable to K-12 schools. The guidance illustrates OCR’s expansive view of your responsibilities.

3. Violating Title IX OCR says a school violates Title IX when three conditions are met. o First, there is a HOSTILE ENVIRONMENT at school. o Second, the school is ON NOTICE of it. o Third, the school FAILS TO RESPOND appropriately. Today we will focus on the second factor.

4. What Does “On Notice” Mean? “OCR deems a school to have notice of student-on-student sexual violence if a RESPONSIBLE EMPLOYEE knew, OR IN THE EXERCISE OF REASONABLE CARE SHOULD HAVE KNOWN, about the sexual violence.” Courts have applied an “actual knowledge” standard. OCR uses “knew or should have known.” Big difference.

5. Who is a “Responsible” Employee? One who “has the authority to take action to redress sexual violence; Who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or Whom a student could reasonably believe has this authority or duty.”

6. To Be Specific That definition clearly makes the principal and assistant principals “responsible” employees. Classroom teachers also. But what about bus drivers, custodians and cafeteria workers?

7. So Let’s Consider the Custodian “For example, while it may be reasonable for an elementary school student to believe that a custodial staff member or cafeteria worker has the authority or responsibility to address student misconduct, it is less reasonable for a college student to believe that a custodial staff member or dining hall employee has this same authority.”

8. Through the Eyes of a Six-Year Old If a six-year old is molested, or abused by other students, might the student think that Mr. Gus, the beloved custodian, would be an appropriate person to report this to? OCR says that this “might be reasonable.” Therefore, Mr. Gus might be a “responsible” employee.

9. Putting the Pieces Together If Mr. Gus is deemed a “responsible” employee, and Mr. Gus knew OR SHOULD HAVE KNOWN about the abuse, then the district is “on notice.” If Mr. Gus knows about it, the school knows about it—i.e., is “on notice.” This may seem like a far fetched example, but it flows directly from OCR’s guidance.

10. So What Do We Do? Gear up for more training of all relevant personnel re: Title IX procedures and standards. The OCR Guidance document is a good place to start with that. Primary emphasis should be on teachers, coaches, nurses, counselors, but don’t forget bus drivers, custodians, cafeteria workers.

11. Back to School This subject will also be covered in detail at my annual Back to School program. Coming to Region 13 on September 30. 10 other dates/locations from August 22 to September 25. More information: http://legaldigestevents.com/legal-digest- events/back-to-school-workshops-with-jim-walsh/ http://legaldigestevents.com/legal-digest- events/back-to-school-workshops-with-jim-walsh/

12. Contact Information JIM WALSH Walsh, Anderson, Gallegos, Green and Treviño, P.C. P.O. Box 2156 Austin, Texas 78768 Phone: 512-454-6864 Fax: 512-467-9318 Email: jwalsh@wabsa.comjwalsh@wabsa.com Web: www.WalshAnderson.comwww.WalshAnderson.com Twitter: twitter.com/JWalshtxlawdawgtwitter.com/JWalshtxlawdawg

13. The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.