Title IX Emerging Issues Transgenders Discrimination Sexual Harassment

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Title IX Emerging Issues: Transgenders, Discrimination, Sexual Harassment, and New Federal and State Rules

Title IX Emerging Issues: Transgenders, Discrimination, Sexual Harassment, and New Federal and State Rules and Processes OSPA Spring Conference April 15, 2019 Kelly D. Noor 1011 Commercial St. NE • Salem, Oregon 97301 -1049 (503) 581 -1501 • 1 -800 -581 -1501 • Fax (503) 581 -5891 • www. ghrlawyers. com

Title IX: The Basics § No person in the United States shall, on the

Title IX: The Basics § No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. 20 U. S. C 1681(a) § No mention of sexual harassment.

TITLE IX ISSUES Transgender Students and case law USDOE Proposed Rules on Sexual Harassment

TITLE IX ISSUES Transgender Students and case law USDOE Proposed Rules on Sexual Harassment cases Oregon specific laws

Title IX Compliance Officer § Each public entity is required to have a TIX

Title IX Compliance Officer § Each public entity is required to have a TIX Compliance Officer. That person should be trained and have resources to address all TIX issues, including but not limited to harassment, discrimination, access to the educational environment, and reports of sexual violence. § It is a key component to legal compliance to ensure your TIX Compliance Officer has the training and resources necessary. The Officer should be up to date on the significant changes in the legal guidance over the last four years. § Make sure that you have adequate notice for employees, students and families on how to contact the TIX Compliance Officer.

TRANSGENDER Definitions: LGBT (QI) The US Office of Civil Rights includes “LGBT” individuals under

TRANSGENDER Definitions: LGBT (QI) The US Office of Civil Rights includes “LGBT” individuals under the protections of Title IX. §Lesbian: homosexual woman §Gay: exhibiting sexual desire or behavior directed toward a person or persons of one's own sex; homosexual §Bisexual: personal sexually attracted to both males and females §Transgender: A person whose gender identity does not conform to their biological gender, often referred to as the “biological sex assigned at birth. ” §Queer: “umbrella term” for non-heterosexuals or non-traditional gender identities, may also be associated with cultural or political identity; also Q – “questioning” §Intersex: individuals who have some biological and/or physiological characteristics of each gender

Transgender Terms § “Transgender” describes an individual whose gender identity is different from the

Transgender Terms § “Transgender” describes an individual whose gender identity is different from the assigned sex. A transgender boy or male refers to a person whose assigned sex is female, but whose internal identity is male. § Conversely, a transgender girl or female refers to a person whose assigned sex is male, but whose internal identity is female. The student should be referred to and treated as their gender identity.

When is it an ‘Identity’ § “Gender Identity” is one’s internal sense of gender,

When is it an ‘Identity’ § “Gender Identity” is one’s internal sense of gender, which may be different from assigned sex, and which is consistently and uniformly asserted, or for which there is other evidence that the gender identity is sincerely held as part of the student’s core identity. This does allow for districts to address students who may not sincerely be identifying as transgender, but there are no examples of students ‘using’ this status.

Individual Measures § Student request should be handled on a case-by-case basis, determining individual

Individual Measures § Student request should be handled on a case-by-case basis, determining individual measures for each student. § Individual measures should be developed based on communication with the district, student and parents regarding key factors such as: o o o requests by student requests by parents safety issues privacy issues confidentiality issues, and access to the educational environment.

Student Support Planning § Support: The school, parents, and student should develop a team

Student Support Planning § Support: The school, parents, and student should develop a team on behalf of the student. § Access district staff as resources § Develop a specific support plan for the student designed to provide safe and equitable access to all school and district facilities and activities, and to address any particular issues. § Designate staff for the student to contact to use for support, especially to let the adult know if they are being treated inappropriately by staff or students, or feel harassed. They can also use the staff person to let them know when an issue has come up they need to problem solve.

Student Support • ‘As’ the identified gender: name, pronouns • Consider reasonable alternative arrangements

Student Support • ‘As’ the identified gender: name, pronouns • Consider reasonable alternative arrangements • District staff should already have everything in place, use designated staff as resource and for concerns, questions or problem solving • Exceptions to policies may be required if the enforcement of a policy results in discriminatory treatment

Student Records § Confidentiality: School records that contain the name on the birth record

Student Records § Confidentiality: School records that contain the name on the birth record (if different from student’s used name), the assigned gender should be kept confidential. § FERPA does not allow disclosure of student information to any person who does not have a legitimate educational interest, be cautious. § Do not “out” the student or otherwise make the student a target.

Student Records (cont’d) § Districts are not obligated to, and should not, alter official

Student Records (cont’d) § Districts are not obligated to, and should not, alter official legal documents to change a name or gender identification unless it has court documentation of an official name change. § Most documents used in school are not “official” records. The student ID system documents are part of state system of accounting and are linked to SID, not name. § Based on parent request, these school documents should generally be in conformance with the gender identity and preferred name of the student: roll, attendance, IEP documents, student work, etc.

Student Records (cont’d) § ODE has indicated that if a district cannot change student

Student Records (cont’d) § ODE has indicated that if a district cannot change student records in the system, ODE has developed a process to do so § In class: make best efforts to use preferred name and gender terms appropriate to the expressed gender; don’t overreact if there are unintentional errors § Inform other adults working with student of use of new name and gender

“Parents for Privacy v. Dallas School District” § Can transgender students in public schools

“Parents for Privacy v. Dallas School District” § Can transgender students in public schools use restrooms, locker rooms, and showers based on gender identity, and not ‘sex’? § Spoiler: yes, they can § “Parties”: Parents for Privacy, the Gollys; “Parent Rights in Education” Basic Rights Oregon, ACLU, ODE, USDOJ

Parents for Privacy v. DSD § Violations alleged under State and Federal Law §

Parents for Privacy v. DSD § Violations alleged under State and Federal Law § 1. APA § 2. Fundamental Right to Privacy § 3. Violation of the Parent’ Fundamental Right to Direct the Education and Upbringing of Children § 4. Title IX § 5. Religious Freedom Restoration Act § 6. 1 st Amendment- Free Exercise of Religion § 7. Public Accommodation Discrimination (OR) § 8. Discrimination in Education (OR)

Decision § No violations of Federal/State laws § At time of decision, all federal

Decision § No violations of Federal/State laws § At time of decision, all federal guidance had been withdrawn (but discussed) § Focus on student safety plan “Transgender Student Access to Locker Room”; also looked at District policies of non discrimination § Did not uphold a fundamental right privacy § No compulsion by District to use facilities with a transgender student, lists options for students to request and “significant” privacy protections

Same Sex Facilities: Bathrooms, Locker Rooms (cont’d) IN OREGON: Individual measures (cont’d): § Allow

Same Sex Facilities: Bathrooms, Locker Rooms (cont’d) IN OREGON: Individual measures (cont’d): § Allow access to same sex facilities: do not discourage or prevent § Consider private facilities, privacy screen, unisex bathroom carefully: Student request, must not prevent participation § Address concerns related to safety and privacy of all students, parent concerns, and issues of religious rights of other students. § Communication to families on transgender use of facilities: consider carefully

Fundamental Claims Violations 1. Federal APA 2. Right to Privacy 3. Parents’ Right to

Fundamental Claims Violations 1. Federal APA 2. Right to Privacy 3. Parents’ Right to direct Education/Upbringing 4. TIX 5. Religious Freedom Restoration Act 6. First Amendment Freedom of Religion 7. State Public Accommodation Discrimination 8. State Discrimination in Education

Dallas School District § Transgender male requests access to restrooms § Safety Plan supports

Dallas School District § Transgender male requests access to restrooms § Safety Plan supports access to male facilities § Biological males shared facilities § Plaintiffs allege issues of embarrassment, humiliation, intimidation, fear apprehension, stress § Privacy stalls insufficient - gaps risk exposure § Court reviewed federal and state guidances (2014)

‘Rights’ addressed § No fundamental right to bodily privacy of one’s “fully or partially

‘Rights’ addressed § No fundamental right to bodily privacy of one’s “fully or partially unclothed body” § Not a state compelled risk of intimate exposure to the opposite sex § Similar treatment of all students, does not violate TIX, or State law ORS 659. 850 and state public accommodations laws § Parent rights: their fundamental liberty interest in education is limited; choice of public education diminishes right to control education § Religious rights: must be neutral and generally applicable

Parent Disagreement Issues Best informal guidance and information on student rights and parent rights

Parent Disagreement Issues Best informal guidance and information on student rights and parent rights when not in agreement: § Student has the right to be addressed consistently with the transgender status, use of preferred name and gender under TIX guidance. § The parent maintains rights regarding official records. School officials should indicate that no official records can be changed without parent or adult student permission. § Unofficial records: document parent requests on name/gender on records and review carefully before responding, check with counsel. Most records used during school are not ‘official’.

Dress Code § School should enforce dress code uniformly, regardless of which clothing any

Dress Code § School should enforce dress code uniformly, regardless of which clothing any student wears. Students who wear a dress, or athletic gear, or any item that appears to be specific to a gender are still held to the dress code. Districts would be in violation of Title IX, if policies or practices were applied differently to males or females, transgender or not. § The conversation with the parents would be that the school policy is enforced, the district does not enforce a family dress code or choice, and that is a family discussion or decision.

Outside Resources § School employees should not engage in providing outside resources or counseling,

Outside Resources § School employees should not engage in providing outside resources or counseling, or referrals to advocacy groups to students or parents regarding their transgender status. § Take the position that the school provides supports for its students in the educational environment; staff do not engage in family discussions, choices, or advocacy. § There are many advocacy groups, and a wide spectrum of positions on these issues. In this era, families or students can easily identify resources on their own that meet their needs.

Athletics § OSAA Regulated: See OSAA rules § Options for the student’s participation are

Athletics § OSAA Regulated: See OSAA rules § Options for the student’s participation are not school choice, it will depend on OSAA rules § Non-OSAA regulated: do not discriminate by gender

Sex v. Gender § Sex is the “anatomical and physiological processes that lead to

Sex v. Gender § Sex is the “anatomical and physiological processes that lead to or denote male or female”; based on ‘external sex at birth genitalia’ § Gender is a “broader societal construct which encompasses how “society defines. . male or female in cultural context” § Dallas HS transgender male asked and was allowed to use male restrooms § Safety Plan created

“Sexual Orientation” § OAR 581 -21 -0045(1)(c) – Broad Definition § “Sexual orientation” means

“Sexual Orientation” § OAR 581 -21 -0045(1)(c) – Broad Definition § “Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

“Sexual Harassment” Oregon § ORS 342. 704(1)(b) defines “Sexual harassment” as including: § A

“Sexual Harassment” Oregon § ORS 342. 704(1)(b) defines “Sexual harassment” as including: § A demand for sexual favors in exchange for benefits; or § Unwelcome conduct of a sexual nature that: § Has the purpose or effect of unreasonably interfering with a student’s educational performance or a staff member’s ability to perform their job; or § Creates an intimidating, offensive or hostile educational or work environment.

ORS 659. 850 and Oregon Rules § A person may not be subjected to

ORS 659. 850 and Oregon Rules § A person may not be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity or in any higher education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly. § “[D]iscrimination” means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on race, color, religion, sexual orientation, national origin, marital status, age or disability. § OAR 581 -21 -0045(1)(c) § “Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

Scope of Title IX; money damages based on sexual harassment § Follows SCOTUS (Supreme

Scope of Title IX; money damages based on sexual harassment § Follows SCOTUS (Supreme Court of the United States) § Damages may only be awarded in a teacher/student sexual harassment case when a school official with authority to institute corrective measures has actual notice of the harassment but is deliberately indifferent to it. Gebser v. Lao Vista S. D. , 524 US 274 (1998). § For student/student harassment cases, school must be deliberately indifferent to known acts of student-on-student sexual harassment, the harasser is under the school’s disciplinary authority, and the behavior is so severe, pervasive and objectively offensive that it denies its victims the equal access to education.

Previous “Dear Colleague” Letters and USDOE Guidance re: sexual harassment rescinded. § September 22,

Previous “Dear Colleague” Letters and USDOE Guidance re: sexual harassment rescinded. § September 22, 2017 USDOE rescinded guidance documents that had never had the benefit of the public notice and comment process § Questions about whether Guidance documents were or were not legally binding § USDOE guidance that all schools and colleges use the preponderance of evidence standard and the prohibition of mediation in Title IX sexual assault cases generated criticism and controversy

USDOE Proposed Regulations for Sexual Harassment § Define the conduct constituting sexual harassment for

USDOE Proposed Regulations for Sexual Harassment § Define the conduct constituting sexual harassment for Title IX purposes; § Specify the conditions that activate a recipient's obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient's response; § Specify situations that require a recipient to initiate its grievance procedures; and § Establish procedural safeguards that must be incorporated into a recipient's grievance procedures to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a sexual harassment complaint. § Prohibit requiring a recipient to pay money damages as a remedy for a violation of any Title IX regulation.

USDOE Federal Regulations– 34 CFR Section 106 § 106. 31: In providing aid, benefit

USDOE Federal Regulations– 34 CFR Section 106 § 106. 31: In providing aid, benefit or service to a student, a recipient shall not, on the basis of sex: § Treat one person differently from another in satisfying any requirement or condition for the provision of aid, benefit or service § Provide different aid, benefits or services in a different manner. § Deny any person any such aid, benefit or service § Subject any person to separate or different rules § Apply any rule about residency differently § Perpetuate discrimination by providing assistance to an organization that discriminates on the basis of sex § Otherwise limit any person in the enjoyment of any right, privilege or opportunity

Section 106. 34. Access to classes and schools Districts must have a Title IX

Section 106. 34. Access to classes and schools Districts must have a Title IX Coordinator designated to train staff in procedures, oversee investigations, coordinate and annual climate survey, and build awareness of Title IX protections.

Current Title IX definitions in Section 106. 2 § No definition of “sex” §

Current Title IX definitions in Section 106. 2 § No definition of “sex” § No reference to gender issues, including LGBTQ identification § No definition of “sexual harassment”

Proposed Title IX definitions in Section 106. 3 § No definition of “sex”. §

Proposed Title IX definitions in Section 106. 3 § No definition of “sex”. § No reference to gender issues, including LGBTQ identification. § Includes definition of “Sexual Harassment”.

Definition of Sexual Harassment: Section 106. 44(e)(1) § An employee of the recipient conditioning

Definition of Sexual Harassment: Section 106. 44(e)(1) § An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct; § Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or § Sexual assault as defined in the Clery Act (rape, fondling, incest or statutory rape).

Proposed Section 106. 44(a) § A recipient with actual knowledge of sexual harassment in

Proposed Section 106. 44(a) § A recipient with actual knowledge of sexual harassment in an educational program or activity must respond in a manner that is not deliberately indifferent. § Actual knowledge means “notice of sexual harassment or allegations of sexual harassment to an official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to a teacher in the elementary and secondary context with regard to student-on-student harassment. ” § 106. 44(a)

“Actual Knowledge” in K-12 Education “Thus, the Department believes that teachers in elementary and

“Actual Knowledge” in K-12 Education “Thus, the Department believes that teachers in elementary and secondary schools should be considered to impart actual knowledge to the recipient regarding student -on-student conduct that could constitute sexual harassment to trigger a recipient’s obligations under Title IX. ”

USDOE Acknowledges: § Proposed section 106. 44(a) regarding actual knowledge “would adopt standards that

USDOE Acknowledges: § Proposed section 106. 44(a) regarding actual knowledge “would adopt standards that depart from those set forth in prior guidance and OCR enforcement of Title IX. ” § “The [former] guidance’s constructive notice standard made funding recipients liable for conduct of which they were unaware. ” § “The guidance arguably exceeded the text of the statute by requiring institutions to respond to conduct less severe than that proscribed by Title IX. ”

Deliberate Indifference standard: Section 106. 44(a) § A recipient acts with deliberate indifference only

Deliberate Indifference standard: Section 106. 44(a) § A recipient acts with deliberate indifference only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. § All reports, complaints or allegations of sexual harassment must be taken seriously be school administration. § It is “clearly unreasonable” to ignore the complaint, whether verbal or in writing and simply do nothing.

What to do when school has actual knowledge of allegation of sexual harassment? §

What to do when school has actual knowledge of allegation of sexual harassment? § Is there a formal complaint in writing from either the complainant or Title IX coordinator? § If multiple complainants submit complaints constituting a sexual harassment violation about the same respondent, a formal complaint must be filed.

Informal Complaint § If complaint is not in writing, no investigation required. § But

Informal Complaint § If complaint is not in writing, no investigation required. § But school must still respond to complaint. § School must inform complainant of formal complaint process. § Must provide “supportive measures” § § Non-disciplinary individualized services; No-contact orders; Changes in class schedules; Counseling.

Formal Complaint § If complaint is in writing school must investigate. § Signed by

Formal Complaint § If complaint is in writing school must investigate. § Signed by complainant or Title IX Coordinator. § Must request initiation of school’s grievance procedures. § School must follow grievance procedure in regulations. § If school follows grievance procedure, this is a safe harbor against a finding of deliberate indifference.

Basic Requirements of Grievance Process: Sec. 106. 45(b)(1) § Treat parties equitably § Objective

Basic Requirements of Grievance Process: Sec. 106. 45(b)(1) § Treat parties equitably § Objective evaluation § For complainant: remedies when a finding is made against respondent § For respondent: must include due process before disciplinary sanctions are imposed § Non-biased investigator and decision-maker § Presumption of innocence during process § Reasonably prompt timelines § Describe range of sanctions § Notice requirements

Enhanced Due Process: Section 106. 45 § Live hearings when conducting investigations of formal

Enhanced Due Process: Section 106. 45 § Live hearings when conducting investigations of formal complaints § Objective evaluation of relevant evidence § Presumption of non-responsibility throughout grievance process § Decisionmaker at hearing must be separate from investigator § Burden of proof is preponderance of the evidence or clear and convincing evidence § Equal opportunity for both parties to be accompanied by an advisor of their choice through full grievance process § Opportunity to test credibility of parties and witnesses through cross examination by parties’ advisors (no personal confrontation allowed) Equal opportunity to present evidence and review access to all the evidence

Live Hearing: Sec. 106. 45(b)(3)(vi) § For elementary and secondary schools, the recipient’s grievance

Live Hearing: Sec. 106. 45(b)(3)(vi) § For elementary and secondary schools, the recipient’s grievance procedure may required a live hearing § If no live hearing, there must be a process for each party to submit questions for witnesses, receive answers to those questions and be able to respond

At conclusion of investigation § Written conclusion whether respondent is responsible or not, supported

At conclusion of investigation § Written conclusion whether respondent is responsible or not, supported by facts and evidence § Must be sent to both parties § Each party may object in writing to the outcome and appeal to a new decisionmaker if the school permits an appeal process

Informal Resolution Process: Section 106. 45 § At any time before final determination, school

Informal Resolution Process: Section 106. 45 § At any time before final determination, school may facilitate an informal resolution process: § Mediation § Restorative justice § Parties must both consent in writing

Scope of Title IX and money damages § Follows SCOTUS (Supreme Court of the

Scope of Title IX and money damages § Follows SCOTUS (Supreme Court of the United States) § Damages may only be awarded in a teacher/student sexual harassment case when a school official with authority to institute corrective measures has actual notice of the harassment but is deliberately indifferent to it. Gebser v. Lao Vista S. D. , 524 US 274 (1998). § For student/student harassment cases, school must be deliberately indifferent to known acts of student-on-student sexual harassment, the harasser is under the school’s disciplinary authority, and the behavior is so severe, pervasive and objectively offensive that it denies its victims the equal access to education.

Brawley Elementary v. Minor § Brawley Elementary school “defendants” 1 -10 § School yard

Brawley Elementary v. Minor § Brawley Elementary school “defendants” 1 -10 § School yard games with sexualized physical contact § Male student continued ‘touching’ in lunch line, female student responded to by kicking boy in the groin § Staff saw but no intervention, recess games widespread but no ‘corrective action’ § Both students suspended

Brawley continued § Principal, staff, aware of schoolyard games § Both students subject to

Brawley continued § Principal, staff, aware of schoolyard games § Both students subject to 1 day ‘in school’ suspension § Female student’s family protested, ‘self defense’ § Female student also initially told she was removed from honor roll and was not allowed to participate in ceremony, but was allowed to make up school work missed § Parent protested and student reinstated on honor roll

Brawley Lawsuit (2016) Claims: negligence, negligent infliction of emotional distress, violation of TIX due

Brawley Lawsuit (2016) Claims: negligence, negligent infliction of emotional distress, violation of TIX due to peer-peer harassment, retaliation Standards: 1. “Deliberate Indifference” : response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances” Davis v. Monroe County Bd. Of Educ. , 526 U. S. 629 (1999) 2. Actual knowledge 3. Educational access so severe, pervasive, objectively offensive it was a deprivation of access to the educational opportunities or benefits of school” Result: § Failed on third prong, one incident not sufficiently severe

Tacoma School District § Female student reports classmate stalked and raped her in HS

Tacoma School District § Female student reports classmate stalked and raped her in HS bathroom § Asserts District had knowledge that classmate was a threat to her § Failed to prevent rape, and claims for discrimination and negligence. § Both are special ed students with cognitive impairments, victim ‘befriended’ other student. § Teachers noted increased ‘infatuation’ of male and emotional response that was concerning and Parents told school of the need to cut off relationship.

Tacoma School District § Often addressed at summary judgement level or with a motion

Tacoma School District § Often addressed at summary judgement level or with a motion to dismiss on a combined fact/law analysis, § Student established a “prima facie” case, § Staff had knowledge, including need for separation of the 2 § Student was emotionally impacted and § “Suffered as a result” § Extreme case, but consider implications for Students with cognitive impact, protections under other federal laws such as IDEA and 504

Oregon’s Legal Standards

Oregon’s Legal Standards

Definitions of Bullying and Harassment ORS 339. 351 §Harassment, intimidation or bullying means any

Definitions of Bullying and Harassment ORS 339. 351 §Harassment, intimidation or bullying means any act that substantially interferes with a student’s educational benefits, opportunities or performance §Cyberbullying is the use of any electronic device to harass, intimidate or bully § Location: takes place on or immediately adjacent to school grounds, at any schoolsponsored activity, on school-provided transportation or at any official school bus stop

State Definitions for Harassment, Discrimination § Protected class: Group of persons distinguished or perceived

State Definitions for Harassment, Discrimination § Protected class: Group of persons distinguished or perceived to be distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, familial status, source of income, or disability. § Sexual orientation: an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth. ORS 174. 100(6)

Sexual Harassment ORS 342. 704 § Prohibits sexual harassment, requires policy and posting of

Sexual Harassment ORS 342. 704 § Prohibits sexual harassment, requires policy and posting of policy § Sexual harassment of students includes: § A demand for sexual favors in exchange for benefits; § Unwelcome conduct of a sexual nature that has the purpose or effect of unreasonably interfering with a student’s educational performance or that creates an intimidating, offensive or hostile educational environment § By staff or students

Sexual Harassment Policy Requirements OAR 581 -021 -0038 § § For all staff and

Sexual Harassment Policy Requirements OAR 581 -021 -0038 § § For all staff and students States definition, quoting law Requires complaint investigation Notification of student and parents that initiated complaint following investigation § Name and position of employee to report to and how to contact § Posting in all grade 6 through 12 schools § No retaliation

OAR 581 -021 -0038(9)(d) § (d) Procedures to address sexual harassment of students or

OAR 581 -021 -0038(9)(d) § (d) Procedures to address sexual harassment of students or staff by third parties. “Third party” means a person who is not directly subject to district control (i. e. a person who is not a student or an employee of the district) when the person is engaged in a school sponsored activity. § Examples of third parties include but are not limited to audiences at interdistrict or intradistrict athletic competitions or other school events, service contractors, school visitors, and employees of businesses or organizations participating in cooperative work programs with the district.

OAR 581 -021 -0045 Discrimination Prohibits any act “that unreasonably differentiates treatment, intended or

OAR 581 -021 -0045 Discrimination Prohibits any act “that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, color, marital status, religion, sex or sexual orientation”

Oregon Law alignment with Title IX Sexual Harassment Policies § ORS 342. 704 (Revised

Oregon Law alignment with Title IX Sexual Harassment Policies § ORS 342. 704 (Revised by HB 4150) § Title IX Established Minimum District policy requirements: § Applies to all staff and students and persons at District events. § “Sexual Harassment” as defined by statute. § Notice will be provided to complainant or parent. § All complaints alleging policy violation will be investigated. § A good faith complaint will not adversely impact the employment or educational environment of the complainant. Notice Requirements: § Rights of the complainant (including privacy rights) & information about internal complaint process. § Notice that civil and criminal remedies are not available through the District, but may be available through the legal system and may be subject to statutes of limitation. § Information about services through the District including counseling services, nursing or peer advising & information about community-based services. § Be plainly written and easy to read & made available on District website. Establishes Obligations of District: § Applicable to all persons in an educational program or activity. § Defines Sexual Harassment § Distinction between Formal and Informal Complaints and investigatory requirements. § Notice must be provided to all parties about investigation results § A good faith complaint will not adversely impact the employment or educational environment of the complainant. Notice Requirements: § Response (with supportive measures) required for informal complaint, not investigation. § Formal complaint requires investigation § Notice to both parties which includes: § § § Notice of grievance procedures Allegations constituting potential policy violation Presumption of non-responsibility Notice of availability of evidence for inspection Written determination sent to parties, which may include opportunity to appeal.

Questions? Kelly D. Noor 1011 Commercial St. NE • Salem, Oregon 97301 -1049 (503)

Questions? Kelly D. Noor 1011 Commercial St. NE • Salem, Oregon 97301 -1049 (503) 581 -1501 • 1 -800 -581 -1501 • Fax (503) 581 -5891 • www. ghrlawyers. com