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Title IX: So Much More Than Gender Equity in Sports
carolyn Stone, Ed.D.
Friday May 01, 2015
by: carolyn Stone, Ed.D.

Section: Inside Insight

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Sexual Harassment
Kayla comes to see you about her discomfort with a group of boys who are throwing nude pictures on her desk and telling her to pass them to a boy on her right. She asks them to stop and pushes the pictures off her desk, but the boys laugh, lean way over her desk and pass them in such a way as to make certain she sees them. Kayla tells you she reported the boys to the teacher who told her to “just ignore their foolishness.” With assigned seat's Kayla is stuck in the middle of this misery for a year. Is Kayla protected under Title IX?

Title IX is the equal access to education law. Sex discrimination, especially with regard to the influence of gender in educational opportunities, was outlawed by Title IX of the Educational Amendments of 1972. The U.S. Department of Education Office for Civil Rights (USDOE OCR) defined sexual harassment as conduct that “is sexual in nature, is unwelcome and denies or limits a student’s ability to participate in or benefit from a school’s education program.” Court rulings have further clarified the legal definition of sexual harassment and have resulted in legislation that aids school counselors in advocating against student-on-student harassment.

There are two main types of sexual harassment in schools: hostile environment and quid pro quo. Kayla is in a hostile environment. According to the USDOE OCR,  “Hostile environment sexual harassment occurs when unwanted sexual touching, comments and/or gestures are so bad or occur so often that it interferes with schoolwork, makes [a student] feel uncomfortable or unsafe at school or prevents [a student] from participating in or benefiting from a school program or activity.” The boys’ behavior is affecting Kayla’s ability to participate in the educational program.

When Kayla’s teacher says, “just ignore them,” she is running the risk of meeting the threshold of deliberate indifference to a hostile environment and setting the school district up for legal action and monetary damages. According to the USDOE OCR, “If a school otherwise knows or reasonably should know of a hostile environment and fails to take prompt and effective corrective action, a school has violated Title IX, even if the student has failed to use the school’s existing grievance procedures or otherwise inform the school of the harassment.” 

The imperative to act that comes from the Supreme Court in Davis vs. Monroe County Board of Education: “If a school determines that sexual harassment has occurred, it should take reasonable, timely, age-appropriate and effective corrective action, including steps tailored to the specific situation. Appropriate steps should be taken to end the harassment.”

Bullying Based on Race, Color, Sex, National Origin
Aalia, a new student, wears a hijab, the headdress often worn by Muslim women to meet religious requirements for modesty. Shortly after Aalia arrives at school you learn that she is experiencing verbal and physical harassment with taunts about her religion and nationality. Are Aalia’s civil rights being violated under Titile IX?

The USDOE OCR issued a “Dear Colleague” letter explaining that some instances of bullying may fall under federal civil rights statutes and regulations enforced by the OCR. School staff should be aware that when abusive behavior based on race, color, sex, national origin or disability creates a hostile environment, it violates students’ civil rights. Statutes protecting these civil rights include:
• Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination on the basis of race, color,or national origin
• Title IX of the Education Amendments of 19722 (Title IX), which prohibits discrimination on the basis of sex
• Section 504 of the Rehabilitation Act of 1973 (Section 504)
• Title II of the Americans with Disabilities Act (Title II). Section 504 and Title II prohibit discrimination on the basis of disability. These statutes require schools to respond directly to such discriminatory harassment er to protect students’ civil rights.

Harassment of LGBTQ Students
Renee, a 16-year-old openly gay student, asks you to help stop the daily harassment she has been enduring from other students. She tells you she receives dozens of anti-gay remarks a day and that the harassment is especially bad in Mrs. Smith’s class, where students call her a “she-he.” Mrs. Smith tells Renee to ignore the harassers. Renee has also reached out to the assistant principal with the names of the students who have attacked her, but nothing has happened to stop the harassment.

In 2010, the OCR released new guidelines for educators on Title IX. Title IX supports LGBTQ youth as well as heterosexual youth when the harassment creates a hostile environment. Although a student’s LGBTQ status is not specifically included under Title IX, harassment of LGBTQ students frequently also constitutes gender discrimination and/or sexual harassment, which are included under Title IX. According to the USDOE OCR, “It can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex or for failing to conform to stereotypical notions of masculinity and femininity.” Additionally, Title IX requires schools to protect all students from harassing conduct of a sexual nature, “regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.”

An individual who is harassed for his or her gender identity or gender expression encounters a form of sexual harassment, which, if treated with deliberate indifference by the school, creates liability for the school under Title IX. This harassment constitutes sex harassment because it is based on gender stereotypes.

A significant case in Arkansas involving harassment of a gay student, Willi Wagner, changed the interpretation of a Title IX violation with regard to how the courts view harassment of LGBTQ students. After Wagner filed a complaint stating that he had endured two years of abuse from other students, the Fayetteville Arkansas School District signed an agreement with the USDOE to hold sexual harassment workshops to raise educators’ awareness of their legal obligations to protect students from sexual harassment and to take disciplinary action against any student engaging in sexual harassment. This case is significant because it opened the door for students to seek legal remedy under Title IX for sexual harassment. Several other early court cases also contributed to increased legal support for LGBTQ students:

Kentucky, 1998: A jury awarded $220,000 to Alma McGowen against the Spencer County Public School district for violating Title IX by failing to act to stop severe harassment that stopped McGowen from getting an education.

California, 2004: Alana Flores and five other students received $1.1 million from the Morgan Hill Unified School District for harassment the six students faced all through high school. The court cited Title IX and explained, “the guarantee of equal protection...requires the defendants to enforce district policies in cases of peer harassment of homosexual and bisexual students in the same way that they enforce those policies in cases of peer harassment
of heterosexual students.”

Dating Violence
Lynette and Derrick are students in your high school. Lynette has to report her whereabouts to Derrick, who has his friends monitor Lynette’s movements when he is not around. Her friends tell you that when they spontaneously change plans Lynette gets a terrified look on her face and says, “But this is not what I told Derrick I would be doing.” Her friends tell you that Derrick dominates and terrorizes Lynette. After several conversations with her, Lynette confides in you that when she recently tried to break up with Derrick he pushed her so hard into the lockers he left an imprint of the locker on her back. Lynette begs you to stay out of it or “things will get worse.” You go to your principal, who responds that “Lynette has to figure out her own mess” and that “this matter has nothing to do with the school.”

Title IX requires that the school must act. Dating violence is a form of sexual harassment and discrimination under Title IX. Sexual violence is the term used by the OCR to refer to “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol . . . [or] due to an intellectual or other disability.” Sexual violence does not necessarily mean rape but can also be sexual assault, sexual battery, and/or sexual coercion.
The OCR states, “A school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.” The school’s Title IX investigation is different from any law enforcement investigation, and even if there is a law enforcement investigation this does not relieve school officials of their obligation to investigate. Even if Lynette had not come forward, if the school reasonably should know about possible harassment (e.g. the school counselor heard rumors) the school must take action. If Lynette had reported the incident to the police but not to the school, the fact that the police are investigating would not take the place of a school investigation necessary to comply with Title IX. The alleged victim’s parents/guardians must give consent for a school to conduct an investigation if the student is under 18.

The school’s inquiry must be prompt, thorough and impartial. In states with mandatory reporting laws, schools may be required to report certain incidents to local law enforcement or child protection agencies. For example, in California, non-mutual violence against a minor typically constitutes reportable child abuse, regardless of whether the offender is a minor.

Most educators feel there is little that can be done about sexual violence between a couple. The USDOE OCR’s Dear Colleague Letter specifies the roles and duties schools have regarding sexual violence. The school must protect the complainant before, during and after the investigation into sexual violence and must provide a grievance procedure that allows the alleged perpetrator an equal opportunity to present witnesses and evidence. Grievance procedures must be settled based on the preponderance of evidence, and both parties should be informed about the outcome of the complaint.

Pregnancy and Title IX
Your administration asked you to convince Erika, a pregnant student, to attend the Pregnant and Parenting Teens alternative school. You have a relationship with Erika, and you have been helping her stay on track, as she is often absent due to morning sickness and doctor’s appointments. It has been a struggle; her teachers are reluctant to give her make-up work because they believe she should not let morning sickness keep her from her obligations. Teachers are condemning her absences with comments such as, “Well I had four kids, and I never missed a day of work because of my morning sickness.” Erika has expressed a desire to stay in her current school. Does Erika have protection under Title IX?

Title IX affords students protection from discrimination based on their “actual or potential parental, family or marital status” and based on a student’s “pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery there from.” All public schools and private schools must comply with Title IX if they receive even $1 of federal funds. School officials must treat pregnant and parenting students as they would treat all able or disabled students and “provide equal access to school for pregnant and parenting students and treat pregnancy and all related conditions like any other temporary disability.”

According to the National Women’s Law Center, school officials:
• Cannot require a doctor’s note for pregnant students to participate in activities unless the school requires a doctor’s note from all students who have conditions requiring medical care.
• Must excuse absences due to pregnancy or childbirth for as long as the student’s doctor deems it medically necessary and provide make-up work or opportunities for catching up.
• Must reinstate students to the status they held when the leave began.
• Must ensure that any separate programs or schools for pregnant and parenting students are voluntary and offer opportunities equal to those offered for non-pregnant students.
• Must avoid encouraging students to attend inferior programs.
• Must provide access to homebound instruction if medically necessary.

It is in the best interest of Erika, her child and the community if Erika is supported and encouraged to finish high school; otherwise, her economic prospects look dim. According to the Bureau of Labor Statistics, females who drop out of high school are more likely to be unemployed than male high school dropouts. A 2010 study by Perper, Peterson and Manlove revealed that only about one-half of teen mothers get a high school diploma by the age of 22, compared to 89 percent of women who do not have a child during their teen years. As Erika’s school counselor and advocate, empower her to make her decisions based on her and her child’s future needs and not a decision based on efficiency or convenience for the school.

Carolyn Stone, Ed.D., is a professor, University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.