DO GOOD GUYS EVER WIN TITLE VI AND TITLE IX CASES?

1. DO GOOD GUYS EVER WIN TITLE VI AND TITLE IX CASES? Presented by: Dan Schlafer Federal Programs Director Cumberland County Schools

2. WELCOME! Thanks for being here today!

3. Cumberland County’s Professional Development SeriesFederal Compliance Issues Stone Memorial HighSchool Tuesday 2 August 2016 8:00 a.m. - 3:00 p.m.

4. “That’s it! I’m calling my lawyer!I’ll see you in court!” -parent

5. TITLE VI The Civil Rights Act of 1964 42 U.S.C. Section 2000d et seq.

6. “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination!” -President John F. Kennedy, 1963

7. TITLE VI MANDATES THAT: “It is to be the policy of the United States that discrimination on the ground of race, color, or national origin shall not occur in connection with programs and activities receiving Federal financial assistance and authorizes and directs the appropriate Federal departments and agencies to take action to carry out this policy.”

8. MISSION OF THE TENNESSEE DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS: “Ensuring equal access to education and promoting educational excellence by providing training and technical assistance to the Local and State Educational Agencies throughout the State of Tennessee and through the vigorousenforcement of the civil rights statutes applicable to educational institutions within the jurisdiction of the Tennessee Department of Education.”

9. SO WHAT’S THE BIG DEAL? What does that have to do with our school system?

10. PLENTY!!! You might want to open your earlids!

11. TITLE VI PROHIBITS: Preventing any person from enrolling in a school, class, or extracurricular activity based on race, color, or national origin!

12. TITLE VI PROHIBITS: Arbitrarily placing any student in a school or class with the intent of separating the student from the general population of students because of the student’s race, color, or national origin!

13. TITLE VI PROHIBITS: Setting higher standards or requirements as a prerequisite before allowing minorities to enroll in a school, class, or activity!

14. TITLE VI PROHIBITS: Unequally applying disciplinary action based on any student’s race, color, or national origin!

15. TITLE VI PROHIBITS: Failing to provide the necessary language assistance to allow limited English proficient students the same opportunity to learn as English proficient students!

16. QUICK SIDE TRIP TO ENGLISH LANGUAGE LEARNERS’ LAND! • Don’t assume ELL status by last name! • Don’t assume ELL status by appearance! • Can’t retain ELL student based on English ability! • May only be placed one grade level below age appropriate! • Enrollment data (ELL, T1, T2, Migrant, NELB, etc) must be correct!

17. TITLE VI PROHIBITS: Administering tests or other assessment measures which by design or by grading do not allow minority students the same opportunity to present a true measure of their abilities!

18. TITLE VI PROHIBITS: Providing advice or guidance to minority students with the intent to direct minority students away from schools, classes, or educational activities based on their race, color, or national origin!

19. TITLE VI PROHIBITS: Providing instructional and related services to minority students which are inferior to those provided to non-minority students!

20. UNDER TITLE VI: “It is important that all recipients of services, contractors, grantees, and employees of the Department of Education know their rights and responsibilities under the law.”

21. UNDER TITLE VI: “As a precondition of receiving a grant, contract, or an allocation of federal or state funds, the Department requires that an entity sign an Assurance Agreement statement. By signing this statement the entity agrees to comply with provisions set forth in Title VI as well as the contract.”

22. WHO MUST COMPLY WITH TITLE VI? • Students • Teachers • Teacher Aides • Parents • School Volunteers • Coaches • School Administrators • School Counselors • Cafeteria Employees • Custodians • Bus Drivers

23. REMEMBER! Any person who behaves in violation of Title VI so that a protected class is unable to enjoy the programs and/or activities of the Local Education Agency could violate the statute on behalf of the school system!

24. REMEMBER! Title VI of the Civil Rights Act of 1964 does not apply only to minorities! It covers all discrimination based on a person’s race, color or national origin whatever it may be!

25. ACTIVITIES COVERED UNDER TITLE VI: • School Athletics Programs • Special Education Programs • School Transfers • Discipline • Student Assignment • Field Trips • Student Organizations • Classroom Instruction • Ability Grouping • Seat Assignment • Water Breaks • Hall Passes • All Daily Activities

26. “THEY DISCRIMINATED AGAINST ME!” Any person who feels they have been discriminated against because of their race, color, or national origin may file a complaint. Complaints can be directed to the local school system’s Title VI Coordinator, the Tennessee Department of Education’s State Title VI Coordinator, or the Office for Civil Rights in Atlanta, GA.

27. PROVING TITLE VI CLAIMS • Intentional discrimination/disparate treatment (distinct disparity) – to prove, one must show that “a challenged action was motivated by and intent to discriminate, that the decision maker was not only aware of the complainant’s race, color, or national origin, but that the recipient acted, at least in part, because of the complainant’s race, color, or national origin.”

28. PROVING TITLE VI CLAIMS • Disparate impact/effects – to prove, the complainant must show that “a recipient, in violation of agency regulations, uses a neutral procedure or practice that has a disparate impact on individuals of a particular race, color, or national origin, and such practice lacks a ‘substantial legitimate justification,’”

29. TITLE VI EMPLOYMENT DISCRIMINATION This statue covers employment discrimination only if the primary purpose of the federal funds is employment, unless the primary beneficiaries (the students) were impacted by the discriminatory employment practices.

30. HOW DO I AVOID TITLE VI COMPLAINTS? • Keep great records! Document! • Ensure that everyone knows the law! • Revisit the law with faculty, staff, and students on a regular basis! • Document that you revisited the law! • Use common sense! • Be sure your brain is engaged before you put your mouth in gear! • Apply “The Golden Rule” on a daily basis!

31. THAT’S ALL I NEED TO DO TO PREVAIL IN A TITLE VI CASE? You bet!

32. TITLE IX OF THE EDUCATIONAL AMENDMENTS OF 1972 20 U.S.C. Sections 1681-1688 Title 20 – Education Chapter 38 – Discrimination Based On Sex

33. TITLE IX STATES: “No person in the United States shall, on the basis of sex (gender), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.”

34. IN OTHER WORDS, IT’S GENDER EQUITY!

35. SIMPLY PUT: “If you drive a nail for the boys, you’d better drive the exact same kind of nail, with the exact same kind of hammer, in the exact same kind of place for the girls or you’ll be up that well known creek without a paddle!” Dr. Fred Bedelle

36. WHAT IF… • Booster clubs buy lights for the baseball field but there’s no softball booster club? The school will be responsible for lighting the softball field! • The school system builds a nice new field house for the football team? The school system will also build a nice new field house for the girls’ soccer team!

37. IT’S ALL ABOUT THOSE TWO, SIX LETTER WORDS! GENDER EQUITY!

38. GUIDELINES FOR ATHLETICS: • Equity in number of games played • Equity in equipment and supplies • Equity in practice time scheduling • Equity in the nature and extent of the opportunity to receive coaching and academic tutoring • Equity in the assignment and compensation of coaches and tutors • Equity in the provision of medical and training facilities and services • Equity in the nature and extent of publicity • Equity in office space

39. HOW TO I ENSURE EQUITY? • Name a District Title IX Compliance Officer! • Name a Title IX Coordinator for each school! • Ensure that faculty, staff, coaches, parents and students are made aware of the law! • Document that you have discussed the law! • Keep detailed records of schedules, equipment inventories, practice times and schedules, coaches resumes, coaching supplements, medical records, and publicity announcements! • Address problem areas immediately and document what you did, when you did it, and who witnessed it!

40. AvoidingComplaints/Litigation • ALL staff should be regularly trained on the policy • Training should be provided by someone who is knowledgeable of the law and involved in system compliance

41. AvoidingComplaints/Litigation • CONSISTENTLY FOLLOW THE LAW! • Apply the law to EVERYONE, the same way, every time - NO EXCEPTIONS!

42. Avoiding Complaints/Litigation • Foster good relationships! • Be upfront! • Inform parents, students and teachers of their rights in student handbooks, on bulletin boards, in newsletters, newspapers, and websites

43. Avoiding Complaints/Litigation • Ask for help! • Contact your district’s lawyer with regard to questions that require legal advice specific to a particular situation! • It’s much easier to get help on the front end than for them to defend you on the back end!

44. “GOOD THING” OR “BAD THING?” • Invite cheerleaders to the fall sports banquet. • Insist that cheerleaders buy their own trophies. • Don’t invite cheerleaders to the winter sports banquet because “they already got their trophies at the fall banquet.” • Present the same number of awards to male athletes that you do to female athletes. • Require all basketball players to be present at all games. • Excuse half the cheerleaders from games because of final exam preparation. • Have pep rallies in the fall for football only. • Conduct no pep rallies for spring sports. • Conduct “Senior Night” activities for all sports.

45. DO “GOOD GUYS” EVER WIN TITLE IX CASES? YES!

46. HOW TO BE ONE OF THE “GOOD GUYS:” DON’T GIVE THEM THE BULLETS TO SHOOT YOU WITH!

47. Do you have questions? OK, I’M GOING TO SHUT UP NOW! It’s your turn!

48. OTHER RESOURCES: • www.titleix.info/ • www.dol.gov/oasam/regs/statutes/titleix.htm • www.ed.gov/pubs/TitleIX/index.html

49. Contact Information Dan Schlafer Federal Programs Director Cumberland County School System Office Email: dschlafer@ccschools.k12tn.net Home Email: danschlafer@comcast.net Office Phone: 931.456.8347 Cell Phone: 423.253.5150 Home Phone: 931.267.5113

50. Contact Information • TOCR: Lesley Farmer, Director Phone: 615.253.1550 (office) Email: Lesley.Farmer@tn.gov • TDOE: Christy Ballard, General Counsel Phone: 615.741.2921 (office) Email: Christy.Ballard@tn.gov