Title IX: Obligations, Liabilities & Impact in Education

Title IX Title IX Survival Skills for New Supervisors 2015 Presenter: Ken Lehrman III, Ph.D. J.D. Vice Provost for Affirmative Action kfl2@psu.edu

Title IX 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. 20 U.S.C. 1681

Title IX What is Title IX? Title IX does not apply to sports only By accepting federal funds, institutions agree not to discriminate on the basis of sex or allow the separation of the sexes in curriculum and extracurricular activities (unless permitted by statute) Failure to comply can result in financial liability to the institution

Title IX More Potential Liability Private litigation: Gebser v. Lago Vista Ind. School Dist., 524 U.S. 274 (1998) a private individual can recover monetary damages from a school where a school official having authority to institute corrective measures on behalf of the school and has actual notice and is deliberately indifferent The discrimination must be so severe or pervasive and objectively offensive that it could be said to deprive access to the educational opportunities and benefits offered by the school

Title IX Gebser extended Davis v. Monroe County Bd. Of Education, 526 U.S. 629 (1999) extended Gebser to include liability for peer to peer harassment if plaintiff can prove: 1. School had substantial control over both the harasser and the context in which the harassment occurred, 2. Sufficiently severe or pervasive, 3. Actual knowledge, 4. Deliberate indifference

Title IX Cases under Davis University of Colorado at Boulder (2007): $2.85 million to two former female students sexually assaulted by football players at off-campus party Arizona State University (2009): $800,000 to former female student raped in her dorm room

Title IX Forms of Sex Discrimination Sexual harassment Sexual misconduct nonconsensual sexual contact (or attempt to commit) nonconsensual sexual intercourse (or attempt to commit) sexual exploitation stalking voyeurism bullying (including cyber bullying) relationship violence (U.Va. Case)

Title IX Consent Informed (knowing) Voluntary (freely giving) Active (not passive) Clear words or actions indicating permission to engage in mutually agreed upon sexual activity

Title IX Unreasonably Interferes Whether conduct is sufficiently severe or pervasive is determined by whether a reasonable person would find the behaviors alter the conditions of academic or work life Reasonableness is evaluated by a standard that is the same as the person in the victim s circumstances (e.g., what a reasonable woman might think is a hostile environment is not necessarily the same as what a reasonable man might think)

Title IX Retaliatory Harassment Occurs when an adverse action is taken against a person because of the person s participation in a complaint or investigation of discrimination or sexual misconduct (e.g., making a student switch dorms because s/he participated in a sexual harassment investigation involving another student)

Title IX Responsible Employee Employee who: o has authority to take action to redress o has duty to report to appropriate officials o a student could reasonably believehas authority or responsibility Possible examples: student affairs, campus law enforcement, General Counsel, human resources, faculty? SHRP?

Title IX Ways to Receive Notice Someone files grievance with the University or OCR Student complains to a responsible employee A parent or another student contacts other responsible employees Someone witnesses the conduct Indirect manner (member of local community, member of the media)

Title IX Constructive Notice Should have reasonably known Pervasive, well-known, openly visible Responsible employee fails to report Student s reasonable belief of apparent authority (even though employee was not a mandatory reporter)

Title IX Responsibilities Under Title IX Harassment and other forms of proscribed behaviors by other students or third parties: If a student or a third party engages in proscribed behavior and the conduct is sufficiently serious to limit or deny the student s ability to participate in or benefit from an educational program, the school must take action to eliminate the behaviors and prevent its recurrence upon notice. If upon notice the school does not take prompt, effective action, the school s own inaction will subject the student to a hostile environment.

Title IX Remedial Action Depending on the specific nature of the discrimination, remedies for the complainant might include, but are not limited to: Providing an escort to ensure that the complainant can move safely between classes and activities Ensure that the complainant and the alleged perpetrator do not attend the same classes Moving the alleged perpetrator (or complainant) to another residence hall Providing counseling services Providing medical services Providing academic support services, such as tutoring Arranging for the complainant to re-take a course or withdraw from a class without penalty Reviewing any disciplinary actions taken against the complainant to determine if there is a causal connection between the proscribed behavior and the misconduct

Title IX April 2011 Dear Colleague Letter Reinforced a recipient s duties to: prompt, thorough, and impartial investigation ( type of investigation will depend on the nature of the allegations) contact law enforcement authorities eliminate all forms of sexual misconduct prevent its recurrence address its effects NOTICE to PARTIES of OUTCOME