Fund members are already aware that Title IX of the Education Amendments of 1972 prohibits sex discrimination in public schools. However, the law has evolved over the years to apply to issues in a multitude of contexts ranging from student athletics to cyberbullying to transgender students and employees. The Fund hosted a Symposium for members where legal experts delved into these topics November 15 at TASB headquarters.
Legal experts presented the history of Title IX through the foundational case law, an update on recent litigation trends and relevant state legislation, and the role of Title IX coordinator to approximately 120 attendees.
Title IX: Then and Now
Sarah Orman, TASB Legal Services Senior Attorney, reviewed the history of Title IX, covering laws and regulations, prominent court cases, and the roles of the Office of Civil Rights (OCR) and the Title IX Coordinator.
Title IX says “No person shall, on the basis of sex, be 1) excluded from participation in 2) denied benefits of, or 3) subjected to discrimination under any education program or activity receiving federal financial assistance.” Sarah went into great depth about how Title IX applies, how it is enforced, examples of cases, and new key players in the government. Many of the cases she discussed have helped create the foundation for how Title IX is interpreted today.
Student-to-Student Sexual Harassment
Lisa Brown, Thompson & Horton, LLP Attorney, covered trending issues regarding student-to-student harassment claims. She reviewed what defines sexual harassment and the duties of school districts and community colleges to address these issues. She also went through some of the prominent cases involving student-to-student sexual harassment.
According to OCR guidance, school officials are responsible for addressing sexual harassment that occurs in the educational institution’s program or activity.” That liability extends to harassment on school buses and off-campus programs affiliated with the school. In recent times, the boundaries of what is considered conduct occurring in an institution’s program or activity have been challenged with harassment between students through technology.
Legal Issues Related to Transgender Students and Staff
Karla Schultz, Walsh, Gallegos, Treviño, Russo & Kyle P.C. Attorney, covered how to be compliant with Title IX and other non-discrimination laws when it comes to transgender students and employees.
She cited some of the staggering statistics, including the fact that 65 percent of transgender students reported feeling unsafe at school, 87 percent experienced verbal harassment, and 53 percent were physically harassed. The harassment can lead to increased absences and lower grades.
There is no federal law that explicitly protects transgender students, Karla said; however, OCR and some courts have interpreted Title IX to provide that protection. In Texas, there is not a state law that creates the right to be protected based on transgender status, but there are some local laws. Karla advised that members check to see if their communities have adopted any local laws or policies and consider requests by transgender individuals for accommodations on a case-by-case basis. For more information, see the TASB Legal Services’ article Legal Issues Related to Transgender Students.
Fund Coverage: Is It Covered?
Marcy Barker, TASB Liability Claims Manager, provided an overview of the Fund’s School Liability coverage as it relates to Title IX claims and touched on the basics of the Fund’s Professional Legal Liability coverage. She defined what and who are covered by the Fund. A covered person is a Fund member, trustee, school board member, or employee acting in course or scope of their duties. During her session, Marcy further defined areas where a member would and would not be covered.
“We are here to work with you,” she said. “There could be exposure out of our control, but we work with you to try to limit exposure.”
Fund Members who have questions about this coverage can contact Marcy.
Don’t Poke The Bear! Everything You Always Wanted to Know About OCR Investigation (But Were Afraid to Ask)
Ken Braggs, Brackett & Ellis LLP Attorney, provided practical advice on surviving complaints and litigation from his perspective as a former OCR attorney. He went into the best practices of responding to an OCR investigation and the importance of asking questions, hence the name of the session. As Ken noted, it is important to do your homework once you find out that your organization is under investigation. This ranges from ensuring boys and girls have all the same amount and quality of athletic equipment to notifying parents and the community that a complaint has been made.
He offered the following tips to ensuring a successful investigation:
- Communicate with your OCR investigator early and openly.
- Involve all key staff at your organization.
- Collect all relevant information/data.
- Be prepared to explain any and all obvious differences between girls’/women’s programs and boys’/men’s programs.
Defending Title IX Litigation: Lessons Learned
Meredith Prykryl Walker, Walsh Gallegos Treviño Russo & Kyle P.C. Attorney, walked symposium attendees through what to expect when a district or college is sued with a sexual harassment claim. One important step to take is to contact TASB for legal and policy expertise. Another is to contact your liability provider to determine coverage. She emphasized the importance of reviewing and familiarizing yourself with your school’s policies on sexual harassment; responding quickly; and maintaining documentation for the case.
In order to establish a sexual harassment claim under Title IX, the plaintiff must prove five elements: that the school had actual notice of sexual harassment; that the harasser(s) was under the school’s control; that the harassment was severe, pervasive, and objectively offensive; that the student was deprived of educational opportunities; and that once the school had notice of the harassment, it responded with deliberate indifference. Meredith explained that there are a few different types of defenses schools can use, depending on the allegations.
Title IX Teammates: State Laws You Need to Know
Marlene Wyatt, Eichelbaum Wardell Hansen Powell & Mehl, P.C. Attorney, and Sarah Orman, TASB Legal Services Senior Attorney, teamed up to cover what Title IX coordinators need to know about state laws and local policies on bullying, cyberbullying, dating violence, sexting, and inappropriate teacher-student relationships. Senate Bill 179, also known as “David’s Law,” recently clarified Texas public schools’ authority to address cyberbullying that occurs off-campus and provided for permissive placement in a disciplinary alternative education program (DAEP) or expulsion for certain types of bullying.
In addition, Senate Bill 7 increased requirements for school districts to prevent and address inappropriate relationships between employees and students. TASB Policy Service has issued a new model policy, DH (LOCAL) in Update 109, which clarifies standards for the use of electronic communications by employees with students. For more information on these changes to state law, view the TASB School Law eSource documents regarding Cyberbullying and School District Employees and Electronic Media.
For more information about Title IX and related legal issues, contact TASB Legal Services at 800.580.5345. To access audio or presentations from the Symposium, contact Risk Solutions, 800.482.7276, extension 2853.