Title IX Coordinator Training

1. Title IX Coordinator Training National Women’s Law Center CT State Department of Education, Bureau of Choice Programs

2. Presenter Neena Chaudhry Senior Counsel National Women's Law Center 11 Dupont Circle · Suite 800 Washington, DC 20036 Tel: (202) 588-5180 Fax: (202) 588-5185 Email: NChaudhry@nwlc.org

3. Presenter Dr. William A. Howe State of Connecticut Title IX Coordinator Connecticut State Department of Education Bureau of Choice Programs 25 Industrial Park Rd. Middletown, CT 06457 Telephone: 860-807-2031 email: william.howe@ct.gov

4. Three Units • Legal Overview • Formal Responsibilities of Title IX Coordinators • Defining and Addressing Sexual Harassment

5. Unit 1: Legal Overview

6. Title IX Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibits sex discrimination in education and in education employment. • "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."

7. Other Relevant Federal Laws • Title VII of the 1964 Civil Rights Act prohibits employment discrimination based onrace, color, religion, sex, or national origin. • Equal Pay Act of 1963 protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. • Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color, and national origin in federally funded programs and activities. • Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in federally funded programs/activities.

8. Connecticut Law Sec. 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.

9. 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 or federal law

10. Why were these laws enacted?

19. Who Is Protected by Title IX? • Both men and women • Both staff and students

20. What Institutions Are Covered by Title IX? • Follow the federal funding • Covered institutions include local school districts, colleges and universities, charter and for-profit schools, as well as athletic associations. • Educational programs offered by non-educational institutions that receive federal funds, such as libraries, prisons, and museums, are also covered.

21. 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

22. What Is Discrimination “On The Basis Of Sex”? • Includes pregnancy and related medical conditions • Includes gender stereotyping but not sexual orientation

23. What Is “Discrimination”? Intentional decisions to treat people 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

24. 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.

25. 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

26. 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.

27. 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

28. What Is Retaliation? Any form of adverse treatment, which 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

29. What Is Retaliation? Any form of adverse treatment, which 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 field

30. Special Rules: Athletics Athletics policies promulgated by the OCR have three basic requirements: 1. Schools must offer male and female students equal opportunities to participate in sports. 2. Schools must allocate scholarship dollars equitably. 3. Schools must treat male and female athletes fairly in all aspects of athletics.

31. Participation:The “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 participationopportunities for the underrepresented sex; OR • The school has fully and effectively accommodated the interests and abilities of the underrepresented sex.

32. OCR Letter: Athletic Activities Counted for Title IX Compliance • OCR issued Dear Colleague letter on Sept. 17, 2008 without any notice or opportunity for public input http://www.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html • Says it is not a change in policy, but reverses longstanding presumption re: activities such as cheerleading by saying will count as sport under Title IX when organizations to which school belongs (e.g., athletic assns) count it as such • Institutions can still be challenged for counting something as a sport that doesn’t meet factors listed, but letter makes it harder for girls to get equity.

33. Have These Schools Met the Three-Part Test? • Hogwarts High School has a student body that is 49% male and 51% female. Its athletes are 51% male and 49% female. • Potter Regional High School last added a team for girls in 2003 and plans to add an equestrian team in 2009. • Snape School does not offer proportionate opportunities to girls and does not have a history and practice of adding opportunities for them. It has sent a survey to its female students asking about their athletics interests but got very few responses.

34. Prong Three: “Full And Effective Accommodation” Under new “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.

35. 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

36. 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

37. Why is “Additional Clarification” Harmful? • Places burden on women to show they are interested in opportunities, reversing 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

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

39. Adequate Defenses to Not Meeting Three-Part Test? • “Girls are less interested in sports than boys, and boys need them more to stay engaged in school.” • “Giving girls additional opportunities to play would require cutting boys’ teams.” • “Sports were offered but girls didn’t show up to try out or to play.”

40. Equal Benefits/Services Boys’ and girls’ athletics programs must be equal overall,* e.g., with regard to: • Scheduling • Travel • Coaching • Locker rooms/facilities • Medical/training services • Publicity • Recruiting • Tutoring • Housing/dining * No “booster club” exception

41. A Common Problem Girls’ softball field at Bowie High School in Prince George’s County, Maryland Boys’ baseball field at Bowie High School in Prince George’s County, Maryland

42. Adequate Defenses to Unequal Treatment? • “There aren’t enough fields or facilities to allow girls and boys to play in the same season.” • “Even if the girls’ soccer team is treated worse than the boys’ soccer team, the girls’ basketball team is treated better than the boys’ basketball team.” • “The boys’ equipment costs more than the girls’ equipment.” • “More people come to the boys’ games so they deserve the better schedule.”

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

44. 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.

45. When Are Single-Sex Programs Permissible? Common-sense circumstances: • Human sexuality classes • Physical education classes in contact sports • Choirs for a specific vocal range

46. When Are Single-Sex Programs Permissible? Where they: • Are substantially related to • An exceedingly persuasive justification; and • Provide equal opportunity to the excluded gender.

47. What Is An “Exceedingly Persuasive Justification”? Compensatory purposes – i.e., to overcome gender-based barriers that have limited opportunities for students of one gender

48. What Is “Substantially Related”? Evaluate fit between means and justifiable ends

49. 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.

50. Do DOE’s New Regulations Meet These Legal Standards? NO! • Permit single-sex programs based on vague objectives that can rely on stereotypes and parental preferences. • Assume “substantial relationship” based on equivocal evidence • Do not require equal opportunity for the excluded gender