Title IX

1. Title IX Gender Equity andSexual Harassment Connecticut State Department of Education Bureau of Educational Equity

2. Presenter Jocelyn Samuels Vice President for Education & Employment National Women's Law Center 11 Dupont Circle · Suite 800 Washington, DC 20036 Tel: (202) 588-5180 Fax: (202) 588-5185 Email: jsamuels@nwlc.org

3. Presenter Dr. William A. Howe State of Connecticut Title IX Coordinator Connecticut State Department of Education Bureau of Educational Equity 165 Capitol Ave. Rm 312 Hartford, CT 06106 Telephone: 860-713-6542 Fax: 860-713-7456email: william.howe@ct.gov

4. Topics for this Workshop • Review of Civil Rights Laws • Summary of Title IX Law and Overview of Title IX Standards • Defining and Addressing Sexual Harassment • Formal Responsibilities of Title IX Coordinators

5. Unit I: Legal Overview

6. Federal Laws Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based onrace, color, religion, sex, or national origin.

7. Federal Laws Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

8. Federal Laws Title VI - Enacted as part of the landmark Civil Rights Act of 1964. It prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.

9. Federal Laws Rehabilitation Act - prohibits discrimination on the basis of disability in programs and activities receiving federal financial assistance.

10. TITLE IX Title IX ofthe Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (Title IX), Covers: sex in education and education employment

11. What is Title IX? "No person in the United States 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."

12. Connecticut Law SECTION 10-15c The public schools shall be open to all children five years of age and over who reach age five on or before the first day of January of any school year, and each such child shall have, and shall be so advised by the appropriate school authorities, an equal opportunity to participate in the activities, programs and courses of study offered in such public schools, at such time as the child becomes eligible to participate in such activities, programs and courses of study, without discrimination on account of race, color, sex, religion, national origin, or sexual orientation; provided boards of education may, by vote at a meeting duly called, admit to any school children under five years of age.

13. Connecticut education – protected classes race, color, religious creed, sex, age, national origin, ancestry, marital status, sexual orientation, mental retardation, physical disability or learning disability, or any other basis prohibited by Connecticut state and/or federal nondiscrimination laws.

14. Who is protected under Title IX? • Both men and women • Both staff and students

15. What institutions are covered by Title IX? • Title IX covers any educational institution receivingany form of federal funding, including guaranteed student loans. • These institutions include local school districts, colleges and universities, charter and for-profit schools. • Educational programs offered by non-educational institutions that receive federal funds, such as libraries, prisons, and museums, are also covered.

16. What educational activities are covered by Title IX? • Recruitment • Admissions (to some schools) • Financial aid/scholarships • Facilities and housing • Course offerings and access • Counseling • Health insurance benefits and services • Athletics and other extracurricular activities • Employment assistance

17. What is discrimination “on the basis of sex”? • Includes pregnancy and related medical conditions • Includes gender stereotyping but not sexual orientation

18. What is “discrimination”? Intentional decisions to treat students or staff differently because of their sex • Does not require hostility or intent to harm; difference in treatment is enough • Usually proved by circumstantial, not “smoking gun” evidence

19. What are examples of “intentional” discrimination? • Guidance counselors consistently tell male students about opportunities to take engineering classes, but fail to mention those opportunities to female students. • Teachers consistently call on boys more than girls. • Recruitment materials feature only girls in child care classes. • A principal refuses to promote a woman to assistant principal because he believes she will soon get pregnant and leave.

20. What is “discrimination”? Practices that do not explicitly or intentionally target girls or boys but that nonethelessharm them – called “disparate impact” discrimination • Question is whether significantly more members of one sex than the other are affected by the policy • If so, question is whether practice is sufficiently related to the goal it is supposed to serve

21. What are examples of disparate impact discrimination? • A school requires students to pass a weight lifting test before allowing them to enroll in an auto body course, and more girls than boys fail the test. • A school bases awards on students’ GPAs, and boys typically have lower grades than girls. • A school refers students for internships based on psychological tests that measure “ambition” and “drive,” and girls have lower scores than boys on these criteria.

22. What is “discrimination”? Retaliation – adverse action taken against an individual because s/he protested discrimination. Supreme Court held in 2005 that individuals – including teachers and coaches protesting discrimination against their students -- can sue under Title IX to challenge retaliation

23. What is retaliation? Any form of adverse treatment For employees, can include: • Demotion or termination • Reduction in pay • Material change in job duties • Harassment on the job • Refusal to give positive job references

24. What is retaliation? Any form of adverse treatment • For students, can include: • Suspension or expulsion • Reduction in grades • Denial of permission to participate on teams, or change in position on team, amount of playing time, etc. • Harassment in class or on the playing field

25. What is “discrimination”? Sexual or sex-based harassment

26. Special Rules: Athletics Athletics policies promulgated by the OCR have three basic requirements: • Schools must offer male and female students equal opportunities to participate in sports • Schools must allocate scholarship dollars equitably • Schools must treat male and female athletes fairly in all aspects of athletics

27. PARTICIPATION:Athletics "three-part test": Schools will be providing equal participation opportunities to their male and female students if: • Athletic participation opportunities for males and females are substantially proportionate to their respective enrollments; OR • The school has a history and continuing practice of expanding athletic participation opportunities for the underrepresented sex; OR • The school has fully and effectively accommodated the interests and abilities of the underrepresented sex.

28. “Full and effective accommodation” Under new OCR “Additional Clarification”: • Schools may comply with Prong Three by administering Model Survey • Schools may treat lack of response as evidence of lack of interest • If Model Survey finds insufficient interest to support additional opportunities, OCR will presume compliance • Unless female students show “direct and very persuasive evidence” to rebut that presumption

29. Prior Policies Required More to Assess Interest • Requests by students to add a sport • Participation rates in club or intramural sports • Participation rates in high schools and community leagues in areas from which school draws students • Interviews with students, coaches and administrators

30. Why is it a problem to use surveys alone? • Surveys merely measure prior discrimination • Exacerbated where schools survey only enrolled and admitted students • Thus perpetuates cycle of discrimination and conflicts with purpose of Title IX to encourage women’s interest

31. Why is the “Additional Clarification” harmful to women? • Places burden on women to show they are interested in opportunities. This reverses the Department’s prior approach, which put burden on schools and required searching OCR review • Imposes a requirement on women that is not imposed on men • Reaffirms stereotype that women are less interested in sports than men

32. Safer Course: Adhere to Prior Department Policies 1996 Clarification can be found at http://www.ed.gov/about/offices/list/ocr/docs/clarific.html

33. Equal Treatment of Girls’ and Boys’ Athletics Programs Boys’ and girls’ athletics programs must be equal overall, e.g., with regard to: • Facilities and equipment • Access to coaches • Schedules for practice, games and seasons • No “booster club” exception

34. Special Rules: Single Sex Programs Both the U.S. Constitution and Title IX set limits on when single sex programs are permissible.

35. WHY? • Students are excluded from programs from which they may benefit based solely on their gender. • Single sex programs can reinforce gender stereotypes that are harmful to both boys and girls • Girls have historically received, and will likely continue to receive, fewer resources and opportunities in all-female environments.

36. When are single sex programs legally permissible? Common-sense circumstances: • Human sexuality classes • Physical education classes in contact sports • Choirs for a specific vocal range

37. When are single sex programs legally permissible? Where they: • Are substantially related to • An exceedingly persuasive justification; and • Provide equal opportunity to the excluded gender

38. What is an “exceedingly persuasive justification”? Compensatory purposes – i.e., to overcome gender-based barriers that have limited opportunities for students of one gender

39. What is “substantially related”? Evaluate fit between means and justifiable ends

40. What is “equal opportunity for the excluded gender”? Unless the single sex program is adopted for affirmative action purposes, a school must show that each gender is treated equally in all tangible and intangible ways.

41. Do the Department’s new regulations meet these standards? NO! • Permit single sex programs based on vague objectives that can rely on stereotype and parental preferences • Assume “substantial relationship” based on equivocal evidence • Do not require equal opportunity for the excluded gender

42. Do the Department’s new regulations meet good policy standards? NO! • Encourage schools to divert resources from proven educational reforms • Provide no effective accountability for experimentation

43. Special Rules: Pregnancy BASIC RULES • Schools may not discriminate based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery from pregnancy • Schools must treat students affected by pregnancy and related medical conditions the same as students similarly affected by temporary disabilities

44. Special Rules: Pregnancy SPECIAL ARRANGEMENTS • Schools may offer separate programs for pregnant students, but programs must be (a) voluntary and (b) comparable to programs for other students. • Schools must allow pregnant students a leave of absence and reinstate them upon their return.

45. Special Rules: Affirmative Action What is affirmative action? • Measures designed to ensure equal access to educational opportunities and to overcome barriers that have limited the participation of women and minorities in the past – not preferences or quotas.

46. What kinds of steps are affirmative action? • Targeted outreach and recruitment • Collecting data on enrollment, retention, graduation and investigating for potential problems • Evaluating admissions processes to ensure criteria don’t exclude qualified women and minorities • Taking race or gender into account in decisionmaking

47. When can schools take race or gender into account in their decisions? • To combat discrimination • To promote diversity Note that affirmative action plans must be carefully structured to ensure they meet applicable legal requirements.

48. UNIT II: Defining and Addressing Sexual Harassment

49. Harassment Is Discrimination Harassment includes: • Sexual harassment • Gender-based harassment (name calling, stereotyped remarks)

50. Sexual harassment is… • Conduct of a sexual nature; • That is unwanted and unwelcome; and • That interferes with a student’s right to learn, study, work, achieve, or participate in school activities in a comfortable and supportive atmosphere.