Affirmative Action.5.4.12 - Foundation for Educational

Presented by:
David Nash, Esq.
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
Overview of statutory requirements related to
affirmative action, protection from
Review of basic scenario on sexual
Overview of HIB, dating violence statutes
Review of scenarios on sexual harassment,
employment discrimination/retaliation,
bullying, teen dating violence
Summary / Q & A
Title IX
Title VII of the Civil Rights Act
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
CEPA – Conscientious Employee Protection Act
(Whistleblower Law)
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
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
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/
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
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
File claim in State or Federal Court
No need to confront harasser first
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
Includes acts of physical sexual violence, as
well as verbal acts
Threat of violence if refusal to submit to
sexual advances
Promise of promotion or other favorable
Threat of termination
Threat of humiliation – Facebook comments,
sharing of explicit images, etc.
For adult - Harassment that is sufficiently
severe, persistent or pervasive to limit an
employee’s ability to function in the work
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
Unwelcome touching – i.e. rubbing shoulders
Offensive gestures – simulated kissing,
sexual activity
Comments about another’s body
Sharing of inappropriate sexual jokes or
Forwarding of inappropriate jokes or images
via email to work colleagues
Student witnessing widespread bullying
activity in classroom
Preponderance of the Evidence – It is more
likely than not that the alleged harassment
Should not use other standards such as “clear
and convincing” or “beyond a reasonable
School District may still find sexual
harassment occurred even if law enforcement
chooses not to pursue a criminal
Mr. Jones, long-time principal
Ms. Adams, secretary to Mr. Jones for last 20
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?
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
USDOE Office of Civil Rights becoming proactive 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.
Ensure that district is in compliance with all Title
IX requirements, including requirements
◦ 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
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
Need to be aware of and be able to use
appropriate district forms and procedures
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
• 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
“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
“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
Caution – may still be responsible under HIB,
Title IX, NJ LAW to address conduct even if
occurred off school grounds
Verbally report suspected incidents of dating
violence to the principal or principal’s
designee as soon as possible (must be same
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
NJDOE Model Policy includes additional
information in protocol for staff members,
Separate the victim from the aggressor.
Speak with the victim and the aggressor
Speak with witnesses or bystanders
Monitor the interactions of victim/aggressor.
CAUTION – DO NOT take on role of
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
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

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