ASBA Law Conference – September 2016
The Ever-Expanding Scope of Title IX:
Gender Equity in Schools
I.
What is Title IX?
Title IX of the Elementary and Secondary Education Act (ESEA)
prohibits sex discrimination in federally funded schools and
universities:
“[N]o person…shall on the basis of sex be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
federal financial assistance.”
II.
What is OCR?
The Office for Civil Rights (“OCR”) in the U.S. Department of Education
enforces the civil rights of students. OCR’s jurisdiction includes investigation
of complaints of students alleging violation of Title VI of the Civil Rights Act
(race, color, national origin), Section 504 of the Rehabilitation Act
(disability), and Title IX of the Elementary and Secondary Education Act
(ESEA) (sex).
OCR explains its interpretation of Title IX and identifies areas of concern to
public schools through “Dear Colleague Letters” (DCLs) issued by the
Secretary or Undersecretary of the U.S. Department of Education.
III.
What must school districts do to comply
with Title IX?
School districts have been sued for violation of Title IX by students who are
victims of sexual harassment or violence. Some courts have ruled that Title
IX requires that, for a claim to be actionable under Title IX: (i) the
harassment must be severe, pervasive and persistent; (ii) school officials
had actual knowledge of the harassment and were deliberately indifferent in
response to it; and (iii) the harassment denied the student an educational
benefit.
OCR interprets Title IX to impose on school districts a higher standard of
care. It asserts that Title IX requires that (i) the harassment must be
severe, pervasive, or persistent; (ii) school officials knew or should have
known of the harassment; (iii) the school’s response failed to stop the
harassment; and (iv) the harassment interfered with the student’s education
services. In essence, OCR will find a Title IX violation if it concludes that a
school negligently failed to protect a student from sexual harassment.
Compliance requires three major actions:



Dissemination of Notice of Anti-Discrimination Policies and
Procedures
Identification of Title IX Coordinator
Adoption and Implementation of Complaint and Grievance
Procedures
OCR also emphasizes that schools should provide “training for
administrators, teachers, and staff and age-appropriate classroom
information for students . . . to ensure that they understand what types of
conduct can cause sexual harassment and that they know how to respond.”
School policies must state that inquiries regarding Title IX may be referred to
the school’s Title IX Coordinator or to OCR. ASBA has Model Policies that
address Title IX, entitled “AC: Nondiscrimination/Equal Opportunity,” “ACA:
Sexual Harassment,” and “JB: Equal Educational Opportunities.” In addition,
ASBA Model Policy “JICK, Student Violence/Harassment/Intimidation/Bullying”
may be implicated, depending on the circumstances. If bullying is based on a
person’s sex, gender, sex stereotype, or gender identity, Policy JICK may be
implicated in addition to other polices, and you should ensure that your school
is meeting the requirements of all.
A few important words of warning: In the April 29, 2014 DCL,
“Questions and Answers on Title IX and Sexual Violence,” OCR provides
extensive guidance regarding what school districts must and should do to
meet the requirements of Title IX. Please note, this DCL goes beyond sexual
violence to include sexual harassment as a violation of Title IX.
As OCR states in the DCL: “Although this document and the DCL focus on
sexual violence, the legal principles generally also apply to other forms
of sexual harassment." “Dear Colleague” Letter, U.S. Dep’t of Just. & U.S.
Dep’t of Educ. (Apr. 29, 2014), p. 1, n. 5. School districts should carefully
review, with assistance from legal counsel, what steps should be taken to
bring the district into compliance.
Prohibition against retaliation: In its DCL dated April 24, 2013, OCR
states:
The ability of individuals to oppose discriminatory practices, and
to participate in OCR investigations and other proceedings, is
critical to ensuring equal educational opportunity in accordance
with Federal civil rights laws. Discriminatory practices are often
only raised and remedied when students, parents, teachers,
coaches, and others can report such practices to school
administrators without the fear of retaliation. Individuals
should be commended when they raise concerns about
compliance with the Federal civil rights laws, not
punished for doing so.
…. If, for example, an individual brings concerns about possible
civil rights problems to a school’s attention, it is unlawful for the
school to retaliate against that individual for doing so. It is also
unlawful to retaliate against an individual because he or she
made a complaint, testified, or participated in any manner in an
OCR investigation or proceeding. Thus, once a student, parent,
teacher, coach, or other individual complains formally or
informally to a school about a potential civil rights violation or
participates in an OCR investigation or proceeding, the recipient
is prohibited from retaliating (including intimidating, threatening,
coercing, or in any way discriminating against the individual)
because of the individual’s complaint or participation. OCR will
continue to vigorously enforce this prohibition against retaliation.
(Emphasis added). Recall that the Ninth Circuit (the Circuit that governs
Arizona) found retaliation when the school in question fired the girls’ coach
shortly after parents complained about the inequities between the sports
facilities and opportunities available to boys as opposed to those for girls.
Although the action was taken against the coach directly, the court found
that the plaintiffs met the test to prove that: 1) they engaged in protected
activity by complaining of discrimination; 2) they were adversely affected,
including having fewer opportunities to play and compete; and 3) there was
a causal connection between the protected activity and the adverse action,
both because of the timing of the two events, and because the court
believed the reasons the school stated for firing the coach were pretext for
discrimination. Schools should take care that, even when a complaint is
determined to be unfounded, the complaining party could still have a valid
claim for retaliation if the school takes negative action against the
complainant because he or she complained.
IV.
If OCR investigates a Title IX complaint,
what will it expect the school district to do
to resolve the complaint?
OCR views every complaint as an opportunity do a checkup on a school
district to ensure that it complies with Title IX and employs best practices to
protect students from illegal discrimination. In connection with any
complaint, OCR will review a district’s policies and procedures and may
require evidence of training and other steps taken to comply with Title IX.
OCR may require a school district to take remedial action even if it finds the
allegations of a complaint inconclusive or unfounded. Likewise, remedial
action may be required as a condition for a simplified investigation and
resolution of a complaint.
Important Note About Early Complaint Resolution: Current wisdom is
that, if OCR enquires about your district’s interest in Early Complaint Resolution
(“ECR”), you should seriously consider it. This is especially true if you have any
inkling that OCR could find fault with any actions taken on behalf of the district.
ECR means that OCR defers investigation to allow the parties time to see if they
can reach resolution. ECR often affords districts an opportunity to resolve the
matter for a modest, or at least reasonable result (especially compared to costs
of attorneys’ fees, district resources, and possibly litigation). On the other
hand, if OCR moves forward with investigation and finds fault with any of your
district’s actions, it may very well result in a full-blown investigation. OCR
investigations can take years, and absorb an enormous amount of district
resources, including numerous staff interviews, community outreach, document
requests, and more.
TITLE 34 EDUCATION
SUBTITLE B REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION
CHAPTER I OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 106 NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
Basic Checklist for Title IX Compliance
The following checklist was prepared to assist you in meeting some minimum requirements of the Title IX
Regulations. It is not an exhaustive checklist and therefore should not be used as a substitute for careful
reading of the regulation itself.
§ 106.8 Designation of responsible employee and adoption of grievance procedures.
1.
At least one Title IX coordinator has been designated to coordinate efforts to comply
with Title IX, including investigations of any complaints.
2.
All students and employees have been notified of the name(s), office address(es)
including email address, and telephone number(s) of the coordinator(s).
3.
Grievance procedures for students have been adopted and published.
4.
Grievance procedures for employees have been adopted and published.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; and
April 24, 2015 OCR Dear Colleague Letter.)
§ 106.9 Dissemination of policy.
5. The following been notified of a policy of nondiscrimination on the basis of sex .

applicants for admission and employment

students and parents of students

employees

sources of referral of applicants

unions, professional organizations
6. Notification of a policy of nondiscrimination on the basis of sex has been placed in the following
(annual newspaper notice may be waived if internet accessibility is easily available to all families
and there are no language barriers):

local newspapers

school newspapers and magazines

memoranda, written communications distributed annually to each student and employee

announcements, bulletins, catalogs, student and faculty handbooks

application forms
7.
The above-listed publications are free of text and illustrations suggesting differential
treatment on the basis of sex.
8.
Admission and recruitment representatives (including counselors or student advisors and
personnel officers) have been advised of the nondiscriminatory policy and required to adhere to
the policy.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681,
1682); [45 FR 30955, May 9, 1980, as amended at 65 FR 68056, Nov. 13, 2000]
LAW OFFICE OF ANNE CARL PLC
P.O. Box 561 ◙ Bisbee, AZ 85603 ◙ (520) 366-8094 ◙ [email protected]
Anne Carl is a private sole practitioner specializing in school and municipal law. Anne
received her J.D. and M.A. in Education from the University of Arizona, and her B.A.
(Phi Beta Kappa) from Union College in Schenectady, N.Y. During law school, she
was twice awarded the Andrew Silverman Law Student Community Service Award for
her volunteer work at law clinics for the indigent. After law school, she became a
deputy county attorney at the Cochise County Attorney’s Office, first as a prosecutor
and then as a civil deputy.
In the Cochise County Attorney’s Civil Division, Anne represented public school, community college
districts, and various county departments including the County School Superintendent and Elections. In
2010, she opened her own practice based in Cochise County, where she continues to represent mostly
public entities.
Anne belongs to Military Legal Assistance, the Modest Means Project, and also assists many nonprofits
throughout Cochise County. Anne is a member of both the National Council of School Attorneys and
Arizona Council of School Attorneys.
Before becoming an attorney, Anne organized numerous social justice and environmental campaigns
throughout the state, region and country. This was in addition to working as a teacher, trainer, member
of the Arizona Opera Company chorus, and partner in the traditional Latin American love song duet,
Ismael y Anna. Anne and her husband Al live in Bisbee, Arizona.
MICHELLE G. MARSHALL
Scottsdale Unified School District
8550 E. Jackrabbit Rd., Scottsdale, Arizona 85251
[email protected]
Ms. Marshall is the General Counsel for the Scottsdale Unified School District, which has 30 schools,
more than 3,000 employees, and serves approximately 24,000 students. Ms. Marshall manages the
Legal and Risk Management Department and provides advice and counsel to the Governing Board,
Superintendent, administration and staff on a wide variety of topics. These areas include Governing
Board policies, employment, student discipline, Constitutional issues, procurement, public records, open
meeting law, contracts and general liability. Ms. Marshall also manages outside counsel.
Prior to joining the District in 2008, Ms. Marshall was a trial attorney for the United States Equal
Employment Opportunity Commission for more than eight years. Prior to that, Ms. Marshall was an
attorney in the Labor and Employment section at the law firm of Fennemore Craig, P.C.
Ms. Marshall graduated magna cum laude from the University of Arizona and earned her law degree at
Stanford University.
Ms. Marshall is a member of the State Bar of Arizona, National School Boards Association, Arizona
School Boards Association, and Council of School Attorneys. She also is a member of Scottsdale
Leadership (Class 30), and serves on the Martin Luther King Planning Committee for the Board of
Community Celebrating Diversity.