@Drswift101 A SCHOOL’S RESPONSE TO SEXUAL HARASSMENT
Under the Final Rule, any of the following conduct based on sex constitutes sexual harassment:
§ A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called “quid pro quo” harassment);
§ Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
§ Sexual assault, dating violence, domestic violence, or stalking (as those offenses are defined in the Clery Act, 20 U.S.C. § 1092(f), and the Violence Against Women Act, 34 U.S.C. § 12291(a)).
SEX DISCRIMINATION REGULATIONS
Relating to sex discrimination generally, and not only to sexual harassment, the final regulations also:
Affirm that the Department may require schools to take remedial action for discriminating based on sex or otherwise violating the Department’s Title IX regulations;
Expressly state that in response to any claim of sex discrimination under Title IX, schools are never required to deprive an individual of rights guaranteed under the U.S. Constitution;
Account for the interplay of Title IX, Title VII, and FERPA, as well as the legal rights of parents or guardians to act on behalf of individuals with respect to exercising Title IX rights;
Update the requirement for schools to designate and identify a Title IX Coordinator, disseminate their non-discrimination policy and the Title IX Coordinator’s contact information to ensure accessible channels for reporting sex discrimination (including sexual harassment), and notify students, employees, parents, and others of how the school will respond to reports and complaints of sex discrimination (including sexual harassment); and
Clarify that an institution controlled by a religious organization is not required to submit a written statement to the Department to qualify for the Title IX religious’ exemption.
DEFINITION OF SEXUAL HARASSMENT FOR TITLE IX PURPOSES
The Final Rule defines sexual harassment broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize the equal access to education that Title IX is designed to protect: Any instance of quid pro quo harassment by a school's employee; any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
The Final Rule prohibits sex-based misconduct in a manner consistent with the First Amendment. Quid pro quo harassment and Clery Act/VAWA offenses are not evaluated for severity, pervasiveness, offensiveness, or denial of equal educational access, because such Misconduct is sufficiently serious to deprive a person of equal access. - The Final Rule uses the Supreme Court’s Davis definition (severe and pervasive and objectively offensive conduct, effectively denying a person equal educational access) as one of the three categories of sexual harassment, so that where unwelcome sex-based conduct consists of speech or expressive conduct, schools balance Title IX enforcement with respect for free speech and academic freedom.
The Final Rule uses the Supreme Court's Title IX specific definition rather than the Supreme Court’ Title VII workplace standard (severe or pervasive conduct creating a hostile work environment). First Amendment concerns differ in educational environments and workplace environments, and the Title IX definition provides First Amendment protections appropriate for educational institutions where students are learning, and employees are teaching. Students, teachers, faculty, and others should enjoy free speech and academic freedom protections, even when speech or expression is offensive.
BIO
Dr. Alice Swift @aacps.org is currently the Director of Safe and Orderly Schools and Deputy Coordinator of Title IX for Anne Arundel County Public Schools located in the State of Maryland. Dr. Swift is also a nationally certified Hearing Officer recognized by the National Association of Hearing Officers. She previously worked as a high-school principal in Prince Georges County Public Schools located in the State of Maryland. She graduated with a Bachelor of Arts degree in Speech-Communication, Master of Arts in Teaching, and a Doctorate in Educational Policy and Leadership from the University of Maryland College Park. Alice has dedicated over 28 years to the public education system. She leads utilizing the philosophy of collaborative leadership and believes the foundation for this leadership style requires strong educator and student voice, transparency, and a shared commitment to the growth and success of students. She leads with the philosophy that all students can be provided opportunities for college-career and workforce readiness that require a strong commitment, grit, and compassion for the profession. Alice is a mother to one amazing son, Jordan, who is currently attending the University of Maryland, College Park.
Under the Final Rule, any of the following conduct based on sex constitutes sexual harassment:
§ A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called “quid pro quo” harassment);
§ Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
§ Sexual assault, dating violence, domestic violence, or stalking (as those offenses are defined in the Clery Act, 20 U.S.C. § 1092(f), and the Violence Against Women Act, 34 U.S.C. § 12291(a)).
SEX DISCRIMINATION REGULATIONS
Relating to sex discrimination generally, and not only to sexual harassment, the final regulations also:
Affirm that the Department may require schools to take remedial action for discriminating based on sex or otherwise violating the Department’s Title IX regulations;
Expressly state that in response to any claim of sex discrimination under Title IX, schools are never required to deprive an individual of rights guaranteed under the U.S. Constitution;
Account for the interplay of Title IX, Title VII, and FERPA, as well as the legal rights of parents or guardians to act on behalf of individuals with respect to exercising Title IX rights;
Update the requirement for schools to designate and identify a Title IX Coordinator, disseminate their non-discrimination policy and the Title IX Coordinator’s contact information to ensure accessible channels for reporting sex discrimination (including sexual harassment), and notify students, employees, parents, and others of how the school will respond to reports and complaints of sex discrimination (including sexual harassment); and
Clarify that an institution controlled by a religious organization is not required to submit a written statement to the Department to qualify for the Title IX religious’ exemption.
DEFINITION OF SEXUAL HARASSMENT FOR TITLE IX PURPOSES
The Final Rule defines sexual harassment broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize the equal access to education that Title IX is designed to protect: Any instance of quid pro quo harassment by a school's employee; any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
The Final Rule prohibits sex-based misconduct in a manner consistent with the First Amendment. Quid pro quo harassment and Clery Act/VAWA offenses are not evaluated for severity, pervasiveness, offensiveness, or denial of equal educational access, because such Misconduct is sufficiently serious to deprive a person of equal access. - The Final Rule uses the Supreme Court’s Davis definition (severe and pervasive and objectively offensive conduct, effectively denying a person equal educational access) as one of the three categories of sexual harassment, so that where unwelcome sex-based conduct consists of speech or expressive conduct, schools balance Title IX enforcement with respect for free speech and academic freedom.
The Final Rule uses the Supreme Court's Title IX specific definition rather than the Supreme Court’ Title VII workplace standard (severe or pervasive conduct creating a hostile work environment). First Amendment concerns differ in educational environments and workplace environments, and the Title IX definition provides First Amendment protections appropriate for educational institutions where students are learning, and employees are teaching. Students, teachers, faculty, and others should enjoy free speech and academic freedom protections, even when speech or expression is offensive.
BIO
Dr. Alice Swift @aacps.org is currently the Director of Safe and Orderly Schools and Deputy Coordinator of Title IX for Anne Arundel County Public Schools located in the State of Maryland. Dr. Swift is also a nationally certified Hearing Officer recognized by the National Association of Hearing Officers. She previously worked as a high-school principal in Prince Georges County Public Schools located in the State of Maryland. She graduated with a Bachelor of Arts degree in Speech-Communication, Master of Arts in Teaching, and a Doctorate in Educational Policy and Leadership from the University of Maryland College Park. Alice has dedicated over 28 years to the public education system. She leads utilizing the philosophy of collaborative leadership and believes the foundation for this leadership style requires strong educator and student voice, transparency, and a shared commitment to the growth and success of students. She leads with the philosophy that all students can be provided opportunities for college-career and workforce readiness that require a strong commitment, grit, and compassion for the profession. Alice is a mother to one amazing son, Jordan, who is currently attending the University of Maryland, College Park.