LEGAL ONE Presents: Affirmative Action

1. LEGAL ONE Presents:Affirmative Action Presented by: David Nash, Esq. 5/4/12

2. GOALS • Understand legal requirements related to affirmative action, including responsibility to protect students and adults from sexual harassment and other forms of discrimination • Understand the relationship between affirmative action and other statutory requirements, including HIB, teen dating violence, equity in education

3. Organization of Program • Overview of statutory requirements related to affirmative action, protection from discrimination • Review of basic scenario on sexual harassment • Overview of HIB, dating violence statutes • Review of scenarios on sexual harassment, employment discrimination/retaliation, bullying, teen dating violence • Summary / Q & A

4. Major Statutes • Title IX • Title VII of the Civil Rights Act • IDEIA • Section 504 • Americans with Disabilities Act • New Jersey Law Against Discrimination • New Jersey’s Anti-Bullying Bill of Rights • New Jersey Teen Dating Violence Prevention Statute • DYFS • CEPA – Conscientious Employee Protection Act (Whistleblower Law)

5. District Obligations Under Title IX School Districts must: • Disseminate a notice of nondiscrimination; • Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and • Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.

6. NJ Administrative Code • N.J.A.C. 6A:7 – Managing for Equality and Equity in Education • Guarantees equal access to education programs and services for all students • Services include teaching of challenging curriculum, differentiated instruction, formative assessment, qualified teachers, high expectations for student learning • Applies to all students, preK – 12

7. Protected Characteristics • May not engage in discriminatory practices against students or staff based on: • Race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status • Includes protections for pregnant students • New protections under HIB against bullying due to “any other distinguishing characteristic” • New protections for “dating partners” under teen dating violence statute • May not retaliate for reporting harassment/ discrimination

8. Defining Sexual Harassment • Unwelcome conduct of a sexual nature • Conduct of a sexual nature includes both physical and verbal conduct, and involves conduct that is related to the victim’s gender, sexual orientation or sexual identity • Key test – conduct would not have occurred “but for” the victim’s gender, sexual orientation, etc. • Two types of sexual harassment • Quid Pro Quo • Hostile Work Environment

9. Reporting Sexual Harassment • Staff members may • Report to Affirmative Action Officer • Report to another administrator • Go to NJ Division on Civil Rights • File Claim with Commissioner of Education • Go to US EEOC • File claim in State or Federal Court • No need to confront harasser first

10. Quid Pro Quo • When a school employee (or student) explicitly or implicitly conditions submission to sexual advances as a term or condition of employment (or participation in school) • Often includes the threat of adverse action for failure to submit to advances or promise of favorable treatment if advances are accepted • Includes acts of physical sexual violence, as well as verbal acts

11. Examples of Quid Pro Quo • Threat of violence if refusal to submit to sexual advances • Promise of promotion or other favorable treatment • Threat of termination • Threat of humiliation – Facebook comments, sharing of explicit images, etc.

12. Hostile Educational Environment • For adult - Harassment that is sufficiently severe, persistent or pervasive to limit an employee’s ability to function in the work place • For student – Harassment that is sufficiently severe, persistent or pervasive to limit a student’s ability to participate in or benefit from an educational program • Could be a victim even if student or employee is not the target of the offensive behavior • Could be a single incident

13. Examples of Hostile Educational Environment • Unwelcome touching – i.e. rubbing shoulders • Offensive gestures – simulated kissing, sexual activity • Comments about another’s body • Sharing of inappropriate sexual jokes or comments • Forwarding of inappropriate jokes or images via email to work colleagues • Student witnessing widespread bullying activity in classroom

14. Standard of Proof • Preponderance of the Evidence – It is more likely than not that the alleged harassment occurred • Should not use other standards such as “clear and convincing” or “beyond a reasonable doubt” • School District may still find sexual harassment occurred even if law enforcement chooses not to pursue a criminal investigation

15. Scenario – Sexual Harassment • Mr. Jones, long-time principal • Ms. Adams, secretary to Mr. Jones for last 20 years • Good friends outside of work • Often engage in bantering back and forth – including comments of sexual nature • Neither person is offended • Is this sexual harassment?

16. Legal Imperative to Address Diverse Student Population • Addressing Achievement Gaps – based on race/ethnicity, disability, poverty • Multicultural Education in Core Curriculum • Equal access for all students to challenging curriculum, extra-curricular opportunities • Addressing Bullying, Dating Violence • Protecting Religious Expression

17. Equal Access & Disparate Impact • USDOE Office of Civil Rights becoming pro-active in looking at disparate impact in areas such as graduation rates, access to honors courses, student discipline, services for ELLs • Looking for patterns from educational data, initiating reviews on their own • Overlapping protections under Title IX, HIB, Dating Violence, IDEIA, etc.

18. Role of Affirmative Action Officer • Ensure that district is in compliance with all Title IX requirements, including requirements regarding: • Reporting and investigation of sexual harassment complaints by students and staff • Training of staff • Enactment of required policies, procedures, notifications • Coordinating Title IX compliance with other statutory requirements (bullying, dating violence, IDEIA) • Ensure that district has procedures to address all other forms of discrimination, and implements all other aspects of NJAC 6A:7

19. Aligning Response with HIB & Dating Violence Statutes • Sexual Harassment will in many cases constitute HIB and dating violence • Must be addressed under Title IX and relevant state statutes, with some variations in procedures • Need to be aware of and be able to use appropriate district forms and procedures

20. Comparison of Legal Liability UnderTitle IX / LAD/ HIB • Under Title IX, a school district will not be found liable for harm to a student unless the district is shown to have been “deliberately indifferent” to the student victim and has actual knowledge– Davis v. Monroe Sch. Dist. • Under NJ LAD, district liable if it fails to promptly take reasonable measures to end the harassment, and constructive knowledge is sufficient for liability – L.W. v. Toms River • Under HIB, may be liable if LAD standard met AND/OR may liable if district fails to follow extensive procedural requirements

21. Key Elements of Dating Violence Statute • Requires dating violence education in health/PE curriculum for grades 7-12 • Defines “dating violence” and “dating partner” • Established task force that created a model for addressing teen dating violence • Policy includes guidance, protocols and detailed procedures for identifying, reporting, investigating and responding to alleged incidents

22. Dating Violence Statute Definitions “Dating Violence” means a pattern of behavior where one person threatens to use, or actually uses physical, sexual, verbal, or emotional abuse to control a dating partner. “Dating Partner” means any person involved in an intimate association with another individual that is primarily characterized by the expectation of affectionate involvement, whether casual, serious, or long-term

23. Dating Violence Definitions (cont’d) • “At school” means in a classroom or anywhere on school property, on a school bus or other school-related vehicle, at an official school bus stop, or at any school-sponsored activity or event whether or not it is on school grounds • Caution – may still be responsible under HIB, Title IX, NJ LAW to address conduct even if occurred off school grounds

24. Protocol for Staff Member • Verbally report suspected incidents of dating violence to the principal or principal’s designee as soon as possible (must be same day) • Written report must follow no later than one school day after verbal report – NOTE tighter timeline than HIB • Must report if witnessed incident, or received reliable information about possible incident • Note – do not make own judgment call that some sources are not reliable

25. NJDOE Model Policy Protocol/Caution • NJDOE Model Policy includes additional information in protocol for staff members, including: • Separate the victim from the aggressor. • Speak with the victim and the aggressor separately. • Speak with witnesses or bystanders separately. • Monitor the interactions of victim/aggressor. • CAUTION – DO NOT take on role of investigator

26. Review of Scenarios • In Scenarios 1 – 5, determine if sexual harassment has occurred • In Scenarios 6 and 7, determine if sexual harassment, HIB and/or teen dating violence has occurred

27. Summary • Recognize legal requirements related to sexual harassment identification, reporting, protection from retaliation • Understand relationship between Title IX and other statutory protections under HIB and teen dating violence and personal responsibilities under each • Know how to apply in real world settings