Transcript Title IX - Sites At Penn State

Title IX
Title IX
Survival Skills for New Supervisors
2015
Presenter: Ken Lehrman III, Ph.D. J.D.
Vice Provost for Affirmative Action
[email protected]
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?
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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
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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
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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
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Sexual harassment
Sexual misconduct
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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”
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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”
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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
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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”
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Employee who:
o has authority to take action to redress
o has duty to report to appropriate officials
o a student could reasonably believe has authority or
responsibility
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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
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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:
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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