Title IX: Yesterday, Today, and Tomorrow

Marianna Stepniak:

(Silence). Hi everyone. Welcome. We’re really glad you’re here. As we’re all trickling in, could you please put in the chat where you’re coming from. We’d love to hear from all of you and get a sense of who we have in the room with us today. So welcome, we’re really glad you’re here. We’re going to get started in a few minutes. We’re going to give some time for people to come in and put where they are in the chat and get a sense of who you are, where you’re coming from. If you want to share anything else beyond that, that’s fine too. We’re excited you’re here. Oh, and it looks like we have people from all over, wow. Minnesota, Maryland, North Carolina, Louisiana, Washington State, which is an important word to add, State. North Carolina, D.C., Danbury, Connecticut, New York. Wow, all over. Welcome everyone.

Marianna Stepniak:

As you’re coming in, please put where you are from in the chat, where you’re calling in from today. Michelle, good to see you. We’re going to get started in just a couple of minutes. So take your time, ease in, put where you’re from in the chat and we’ll get started momentarily. Jan, nice to see you. We are all over the place. I love this. Colorado, Ohio, North Carolina, Missouri, Minnesota, everywhere. This is phenomenal. D.C. Hi, Mariella. As you’re coming in, please put where you’re coming from today in the chat box. Welcome. We’re so excited you’re all here. We’re going to get started momentarily, so just plop where you’re from in the chat. A couple of people from Needham. That’s awesome. I’m calling from Cambridge, Massachusetts. So hey Needham people. California, Minnesota. This is fabulous. We’re going to get started pretty soon. Rhode Island. Yes, hadn’t gotten that one yet.

Marianna Stepniak:

Tulsa, Oklahoma. Welcome everyone. Hi, [inaudible 00:02:37]. I love seeing all these MAEC people come in to. Really glad you’re all here today. All right, I’m going to get started. That’s been a couple of minutes and I’m going to move to the next slide. Welcome everyone. As you’re coming in, please put where you’re from in the chat. Greetings from Georgia. Greetings right back at you. And we’re going to hop into Title IX: Yesterday, Today, and Tomorrow. And I got to get on the right screen. There we go. All right, before we get started, we’re going to review some webinar etiquette. So just a couple of points here. First, please use the chat box. As many of you are already doing to post questions and engage with the panelists and other participants here today. We recommend that you keep the chat box open the whole time. It’s either an icon on the bottom or the top of your screen. Just keep it open and we’ll see the comments as they come in.

Marianna Stepniak:

Polls will appear in the center of your screen, we’ll have a couple of polls. Please click on the appropriate button or buttons and the results will be read either by me or by someone else in our tech support staff. And there’ll be a time for Q and A towards the end of this webinar, so if during this webinar, you have questions you want specifically to be answered during that time, please put them in the Q and A box, which is a separate box from the chat box on your screen. And just for the folks who’ve just come in, we’re asking that you put in the chat box where you’re coming from so we can get a sense of whose here today, so please go ahead and do that as well. And one more note, please be respectful as we are building community here today.

Marianna Stepniak:

We’re going to be talking about Title IX as you know, gender equity and a number of different topics. And as a general rule, please be respectful with the ways that you interact within the chat, with the panelists, with other participants. So thank you in advance. Behind the scenes. This is our team today. We have Nikevia Thomas, who is our ALIVE Program Director, and she’s on top of tech support. We’ve got Jessica Lim, who is our Finance and Bookkeeping Assistant, who is in charge of Chat Box Support. If you have any particular issues, these are the people to reach out to. Jess is in the chat as M-A-E-C Chat Box Support Jessica and Nikevia [inaudible 00:05:00] but with Nikevia Thomas. And we also have Kathleen Pulupa who is our Communications Coordinator, who is monitoring our Facebook live right now. So if folks aren’t watching us through this webinar through Zoom, they can watch through Facebook.

Marianna Stepniak:

Thank you to all three of you for supporting this and to even more people who have made this day possible. I am your moderator for today. I’m Marianna Stepniak, I’m a Program & Communications Associate at MAEC. My hair has grown longer since this photo, but still the same person. And I’m really glad you’re all here with us today. MAEC, to give you some background information was founded in 1991 as an education nonprofit dedicated to increasing access to a high quality education for culturally, linguistically and economically diverse learners. Our vision is that we envision a day when all students have equitable opportunities to learn and achieve at high levels. And our mission is to promote excellence and equity in education to achieve social justice.

Marianna Stepniak:

One of our biggest projects is the Center for Education Equity or CEE, and we do this in partnership with WestEd and the American Institutes for Research or AIR. CEE is one of four regional equity assistance centers across the country funded by the U.S. Department of Education under Title IV of the Civil Rights Act of 1964. And on this next slide, we’ll show you an overview of our region. As you see, we reach all the way from Maine all the way down to Kentucky, including Puerto Rico and the Virgin Islands. And overall, just to give you some context about our work with CEE, our goals are to improve and sustain the systemic capacity of public education systems to address problems caused by segregation and inequities and to increase equitable educational opportunities for all students, regardless of race, gender, religion, and national origin.

Marianna Stepniak:

So who do we serve exactly? We provide technical assistance and training to SEA’s, LEA’s, schools and community based organizations within our region, region one at the request of school boards and other responsible governmental agencies. So we’ve talked about MAEC, time to hop into Title IX, which is what you’re all here for today. So today, just to give you a brief overview, we are going to discuss Title IX and it’s history, future, new regulations, nuances of navigating cultural differences. And our goal is that by the time you leave this webinar today, we will have increased your awareness of the new roles and responsibilities of the pre-K to 12 Title IX coordinators at the school district and State level. We will have built the capacity of pre-K to 12 Title IX coordinators, administrators, and educators to comply with Title IX regulations. And we will have worked towards developing an understanding of the spirit of Title IX and its intersections with cultural competence for pre-K to 12 schools and communities.

Marianna Stepniak:

So now it’s my pleasure to introduce our panelists for today. We don’t have their photos here, but you will see them very soon. I’m going in alphabetical order here, and I’ll be giving a brief introduction, but you’ll [inaudible 00:08:09] later on too when they give their presentations. So Bill Howe was the Connecticut State Title IX coordinator for 17 years, during which he also handled complaints based on race and other protected classes. He has conducted over 100 workshops on Title IX and gender equity, so he is a pro. He’s the past president of the National Association for Multicultural Education, otherwise known as NAME, and past chair of the Connecticut Commission on Asian Pacific American Affairs. So Bill, really got to have you here today. Next up we have Phyllis Lerner. Phyllis was the educational equity consultant for project SEE, a different SEE, which stands for Sex Equity and Education, which became the California Department of Education’s Title IX office.

Marianna Stepniak:

Phyllis was also the national trainer for GESA, Gender and Ethnic Expectation and Student Achievement. And she worked at the Educational Equity Center in Los Angeles County. Today, Phyllis is an instructor with Johns Hopkins University Graduate School of Education’s Teach for America National Partnership. And tomorrow, she put hers in yesterday, today and tomorrow, Phyllis looks forward to returning to Rwanda where she has spent five winter semesters at a post-genocide high school for vulnerable youth. Phyllis, really glad to have you here today too. Third on this list in alphabetical order, is Shiwali Patel. Shiwali is the director of justice for student survivors at the National Women’s Law Center. And she leads advocacy addressing sexual harassment in schools. Previously, Shiwali was at the U.S. Department of Education’s Office for Civil Rights, OCR, where she worked on policy and guidance, interpreting Title IX protections, including school’s responsibilities in responding to sexual harassment.

Marianna Stepniak:

Shiwali has also been a special assistant U.S. attorney in D.C. in the sex offense and domestic violence unit and a community educator at the D.C. rape crisis center. So we have people here who are coming across all different knowledge’s of Title IX, intersections with their work. I am so excited to be here with them and learning from them. So glad to have you here too Shiwali And I have already said I’m Marianna Stepniak, Program Communications Associate, MAEC. This past summer, I worked with our president Susan Shaffer and the president of We ACC, Jan Evanstaad to develop MAEC’s Title IX regulation series, which is a series of five briefs about the new Title IX final rule. My background is in gender equity research and education policy. Okay, so that’s enough about us. We’re going to hop over to everyone else.

Marianna Stepniak:

Who do we have in the audience today? So you should see a poll coming up on your screen, and that gives the following options listed on my screen as well. Please choose the options that best describe you. You have the option to choose one or more. Oh, and it’s on my screen too, excellent. So please fill out the first question. Oh, and the second question, which is, what is your familiarity with Title IX? From not at all familiar, I’ve maybe heard of it, but I don’t know what it is, all the way to extremely familiar, I could have led this webinar today. So please indicate in the poll, what best describes you. And we’ll give a couple more seconds for that, a little bit more time, and I’ll ask Nikevia or Jess to read the results once they’ve all come in. So please respond to the poll, which is in the chat or on your screen. And a little bit longer just to make sure we’ve got them coming in.

Jessica Lim:

Hey, this is Jessica from MAEC Chat Box Support. So I’m going to start reading out the results. We have about 86%, 87% voted already. 87% reporting. So I’m just going to start reading them out. So we have 23% educator, 22% Title IX coordinator. We have some students in here, so that’s 1% student, 7% parent caregiver, 9% school college administrator, 18% district administrator, 2% district lawyer, 7% nonprofit employee and 37% others. So for familiarity with Title IX, most people are under somewhat familiar. We have not at all familiar 8%, a little bit familiar, 16%. So yeah, most people are somewhat familiar with it and a few are very familiar with it, so that’s good to hear.

Marianna Stepniak:

Thank you for reading those out loud, Jess. Appreciate that. And thank you everyone for putting in the poll where you’re coming from and what your familiarity is with. That’s really helpful for us to know as we go through the presentation. So my next side was the poll question. And right before we get started, I’m just sharing a brief agenda so you know what’s coming up. So this is going to be broken into about five sections. We’re starting with Phyllis Lerner who is going to ground us in the history of Title IX. We’ll move over to Bill Howe, who will break down the structures of Title IX compliance and specifically intersections with cultural understanding and nuances.

Marianna Stepniak:

I will talk about the final rule, the new Title IX regulations, and Shiwali Patel is going to talk about what’s happening with Title IX now in terms of lawsuits, litigation implementation and the future of gender equity practices and policies. And after we each do our presentations, we’re going to move into a Q and A, and if we have time at the end, we’d really love to do a case study exercise. We’ll play that by ear to see how that goes, so that’s the plan. I’m going to stop sharing my screen now. And Phyllis is going to take over. So Phyllis, if you could. There you are. All right, all yours, Phyllis.

Phyllis K. Lerner:

Oh, I never get over the excitement of working on technology rather than having a piece of chalk in my hand. Good afternoon, whatever time zone people are in. My topic deals with the yesterday part of Title IX, and trust me, it is worth more than 10 to 12 minutes. But like Black History Month and Women’s History Month, we really are just trying to play for context to deepen our understanding. When Title IX was passed in 1972, what was the world of school like? Pretty much it existed with a paradigm where boys and girls were the opposites. And they shared very, very little in common. When the law was passed, quite frankly, most of us didn’t even know it was happening, nor did we understand what it would mean in terms of regulations and applications. It’s only 36 words. Imagine hearing back then, “No person in the United States shall, on the basis of sex,” we typically say gender now, “be excluded from participation in or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal assistance.” Breathe.

Phyllis K. Lerner:

Whoops. There’s a newer paradigm now that better describes what we know our students and ourselves to be. Instead of being boys and girls and males or females and opposition, we typically use what is sometimes called the gender bred paradigm. We understand students have a gender identity. That is what their brain thinks of themselves. They have a gender expression, how they present, and that’s not just limited to clothing and hair. They have a biological sex, which goes from genes to genitals. And then who are they romantically? What is their heart space in terms of attraction? We’ve really, really come a long way. So I’m going to do a quick check with you all and get you involved. I’m going to ask you to use a paper and to write something with a pencil, because I don’t want to put this in the chat. I want you to have your own privacy.

Marianna Stepniak:

Phyllis?

Phyllis K. Lerner:

Yes?

Marianna Stepniak:

I’m sorry to interrupt. It’s Marianna. We can’t see your screen anymore, if you’re still supposed to be screen sharing.

Phyllis K. Lerner:

Can you see it now?

Marianna Stepniak:

Nope.

Phyllis K. Lerner:

I truly don’t know why that is or isn’t happening. So I’m going to do as quick a fix as I can. They should be back on.

Marianna Stepniak:

Perfect.

Phyllis K. Lerner:

Breathe little mindfulness. Okay. Please keep me posted if that happens again. I do not understand. So I’m going to ask you to write on a piece of paper, what are the areas in education that are covered by Title IX. Speed counts, I’m only giving you a minute and your time starts now, spelling doesn’t. And the big hint for the day is you have about 12 areas that are covered by federal and typically by State law. 45 more seconds of somewhat quiet. I think I’m going to play beat the clock and only give you another 15 or so seconds. And let’s see how you did. Okay, my hope, my expectation is that absolutely everybody knew that there’s something about athletics and equitable participation as it relates to Title IX. And you also probably know that sexual harassment and criminal assault are also included as it relates to K through 12 or pre-K through 12 schools.

Phyllis K. Lerner:

The issue of athletics back when I was a high school student looked a bit like this picture. I was the girl who was smaller and when I was awarded the outstanding athlete in my high school, I got a plastic box with a pin in it. The male who received the comparable award got several trophies and two full college scholarships. As it relates to sexual harassment, I’m giving you this as a precursor to Valentine’s day weekend. “Why can’t you give those candles out at your school Valentine party?” “They say things like kiss me, hug me. I might get in trouble. These are the ’90s. Well in the ’70s, we weren’t quite there and in the ’20s we’re now far beyond. What does Title IX cover? Access to courses. Back in the day, whether you were a female or a male really impacted what you were allowed to take, be it industrial arts or home economics. Today, a career in technical education and the STEM fields are open to all students all the time.

Phyllis K. Lerner:

Admissions was a key factor, especially as it moves students beyond high school. There were quotas in med schools and law schools and women and people of color were absolutely limited. Athletics, by the way, these are alphabetical. So I think you got that one. This is a very complex issue and we’re not going to have time to dig into it. Classroom Climate often had to do with the atmosphere and the way our schools were run back. In the day they started with boys lines and girls lines and if Bill misbehaved, he could have been sent out of the room but if Shiwali did almost the same thing I would just quietly say to her, “Please, I know you can do better. I expect so much of you.” Today, we still see disparities by gender as well as by race and ethnicity. Counseling. Counseling was indeed to be equitable, but there was covert bias. When some kids were encouraged to take AP classes and other kids were told, “No, that might be tough for you and you won’t need it. So why don’t you try this class?”

Phyllis K. Lerner:

Employment practices were fascinating. When more than 80% of teachers were female, we had almost 80% of our school administrators as male, especially in high schools now we still see some bias or perhaps the patterns of inequity. And other employment practices like where did you hire teachers and where were they placed? And what other issues they had to manage as part of their day was sometimes not as subtle as one would imagine. Extracurricular activities. There were fundings run, whether it was pizza for the varsity football team or other issues where kids did not get to participate in comparable programming. Financial assistance, mostly had to do with scholarships and awards or special trips and opportunities for some kids versus others. Sexual harassment was a word that people didn’t really identify or even used in 1972. Sometimes we talked about bullying …

PART 1 OF 4 ENDS [00:23:04]

Phyllis K. Lerner:

… 1972. Sometimes we talked about bullying. Sometimes we talked about criminal assault. But the word started to gain credence as kids and the bravado and the consequences of harassment became more of a problem. Student housing, typically an issue in college where some kids given the best opportunities for housing and others far less. Student rules and policies. My gosh, I remember when I went to college, the library was open till 11:00, but I, as a female, had to be back in my dorm by 10:30.

Phyllis K. Lerner:

And finally, treatment of pregnant or parenting students. In 1972, and for many years afterwards, girls who became pregnant were considered to be problems. They were often dismissed from school, put in alternative school programs, and their partnering males were not considered part of parenting rights. In fact, if we go to employment practices on the other side, it wasn’t unusual in some states that when a female teacher, a married female teacher, was pregnant and began to show, she had to leave her teaching position, and that impacted her tenure and salary for years to come. Those are all the issues. So let’s see where we go from here.

Phyllis K. Lerner:

Lessons I’ve learned. First of all, the easy one. It’s not referred to as T9 or Title IX. I bet most of you already know that. Number two, Title IX is not just about girls. It’s about everybody. It’s not just about females. It’s about all of our students. Number three, if there is a lot of bias in your school, chances are there’s usually some discrimination. That means if we think everything is subtle, the consequences usually have crossed legal bounds.

Phyllis K. Lerner:

Number four, you can’t just open one can of worms and ignore the others. That means if you’re doing a Title IX investigation at your school, and someone has made a complaint that has to do with athletics, you really need to look at your SPED classes and your AP classes and see if indeed equity as a part of all schools, policies, and practices.

Phyllis K. Lerner:

And finally, there probably are no isolated incidents. When something happens in your school, this is a phrase that I’ve heard so many administrators say as an excuse, “Oh, it’s only one circumstance.” Our experience, for those of us that have been grounded in the law for decades, if there is an incident, there probably is a pattern.

Phyllis K. Lerner:

Okay, that’s my time. That is a run-through. And I’m grateful that this gives you the context and the grounding so we can see what’s happening today.

Marianna Stepniak:

Thank you so much, Phyllis. That was awesome. I’m going to, if you don’t mind, stop. Perfect. And I will start sharing my screen, and we’ll pass it over to Bill. All right. My screen is sharing. I’m going to turn off my camera and mute myself.

Bill:

Hello, everyone. I’m happy to be here today. I’m somewhat intimidated by the people attending. I know quite a few of you and you’re very skilled in your area. So, I’m pleased that you’re here asking questions and learning, maybe sharing some of your knowledge with us. I consider myself a journeymen Title IX coordinator. And by that, I mean I think my strengths are in doing the job, and less so interpreting the law.

Bill:

This is why we have the National Women’s Law Center and other organizations. I would often call them on a daily basis for technical assistance about the law, because as anyone working in Title IX knows that it seems to change on a regular basis. And some days when you’re think you know what the law says, something comes up in the news and you begin to wonder.

Bill:

So, I want to focus on three things. And number one, who are your constituents? Secondly, are your practices transparent? And thirdly, have you considered the role of culture? And we cannot separate out gender or sex from different kinds of culture. And by culture, we mean race, religion, national origin, your gender identity, and so on.

Bill:

All right. So let’s begin with number one if we could see the first slide. So, who are your constituents? For the 17 or so years that I was the Connecticut state Title IX coordinator, our department, since the inception of Title IX, took the position that the state department of education was responsible for all school districts in the state, the 166 school districts in Connecticut. So, we provided technical assistance and a degree of compliance over those 166 districts, and we provided training on a regular basis.

Bill:

Now about a million years ago, I did a study in conjunction with the Feminist Majority Foundation, and I tried to locate my counterparts in other states, other people who worked in state departments of education, just to see who they were and if we could begin some type of collaboration. And I was surprised to find out that a lot of my counterparts in different state departments of education were only responsible for the employees of the department of education, not for school districts.

Bill:

So, if a school district in that particular state that had an issue, instead of calling the state capitol and asking for the person in the state department of education, they would be referred to the Office for Civil Rights for assistance. And having worked with the Boston office for OCR, which was a phenomenal group when I was working there, they got very much overwhelmed. So, I think they appreciated the fact that Connecticut took a responsibility in assisting them and dealing with particular issues. So, that’s one area.

Bill:

If you are in a state department level and you only deal with your employees, I would strongly suggest that you expand your responsibilities to begin at least providing training to other districts. And it’s important, too, because sometimes it’s a Title IX issue or may not be a Title IX issue, but it can be an issue of state law. So, sometimes Connecticut state civil rights laws provide support when the federal law didn’t.

Bill:

The secondary that we got into was … I think just go back to the previous slide, thank you … was that Title IX requires a district level Title IX coordinator. Which means for back then a city like Hartford which had 36 schools, there was technically one responsible person under federal law to enforce Title IX. We just felt that was just an unreasonable and too encumbering. A child in Maple Elementary School is not going to know who the Title IX coordinator is downtown in the head office.

Bill:

So, we strongly encouraged that there’d be a timeline coordinator in every building. In fact, we started putting out a survey each year from the commissioner asking school districts to identify their district person and their local person in every building, and then they would get invitations every year to come for training. Just doing that alone greatly reduced the number of the number of complaints that we received and made a timeline much more accessible to folks.

Bill:

The third area in terms of who are constituents is looking at compliance and training. It’s important that training be offered on a regular basis. We would run five to six workshops every fall for Title IX coordinators, and often Title IX coordinators would come back over and over again. We often had groupies who would come every year. After several years of doing this, we learned from the Office for Civil Rights that they had a major concern about how investigations were conducted. So, we decided to separate that out. We would have a one-day training on Title IX, and then a second day training on just how to conduct an investigation.

Bill:

The third area then is we have to make sure that we enforce Title IX fairly. Now, I have to ask anyone who is your constituent? Who do you hold your allegiance to? Are you responsible for protecting the agency, the school district, or the state department of education? Is that your primary responsibility? Or are you responsible for protecting those people who need services under Title IX? Because sometimes those come into conflict. And it’s important to understand that despite the political pressure that I know we all get, that we have to be open and enforce Title IX fairly with everyone who calls in and conduct investigations and follow through on Title IX policies regardless of who the individual is or the pressure that we get.

Bill:

Okay, second area. Are your policies transparent? Are your practices transparent? Meaning does everyone know who you are, and does everyone know what Title IX is? I remember conducting an investigation of a school district. And I always look through the student handbook and the employee handbook, because in both of those, required by law is a non-discrimination statement, a statement regarding sexual harassment, but also a complaint procedure. And in this particular school, I could not find the complaint procedure. I look back and forth, and it wasn’t easy to find it. I often find student handbooks, they don’t make it easy to find things. There’s no table of contents, no index. So, you often have to read the entire thing to try to find it.

Bill:

So, I confronted the principal and said, “I’m sorry, maybe I’m not seeing it, but I don’t see your complaint procedure.” And her response was, “Oh, our attorney asked us not to put one in.” I asked her, “Why would you not put a complaint procedure in your handbook?” And she said, “Well, our attorney said that if you put a complaint procedure in, people are going to complain.” So, I think people are missing the point here. You want to be as transparent as possible. You need to be, next to the superintendent, the most famous person in the school. People need to know who you are. They need to know what the policies are.

Bill:

I’ve suggested this frequently that we have a call in day. And then this is something that I suggest you might want to do is someday call from home, unless you’re like the rest of us working from home, disguise your voice, and call the schools in your district and ask, can you tell me the name of your Title IX coordinator? And if they don’t immediately give you your name, or if they ask what is Title IX, you know that there needs to be much more work done.

Bill:

Websites are extremely important, particularly now in the era of the pandemic. Go to your search box and type in Title IX. Where does that go? Type in sexual harassment. Type in sexual assault. Type in complaint procedure. All of those searches should go to one particular site where people can get help in not only sexual harassment, but also Title VI, Title VII, 504, all the other protected classes. So, it must be as transparent as possible.

Bill:

Another issue is make yourself available. Go to meetings, attend board meetings periodically and work the room. By that, I mean just walk around, introduce yourself to people so they know who you are. It’s important to make yourself as accessible as possible. You should be able to walk down a high school hallway and ask a student what is Title IX and who is your Title IX coordinator, and they should be able to give you name.

Bill:

And then the last point I want to raise is have you considered the role of culture? Now, my other area is in multicultural education, ethnic studies. And it’s important to understand culture affects learning, culture affects how students act and interact and how parents do, too. So, it’s important to have an understanding of different cultures, particularly within your district, and also what their perspectives are around different issues, but in this case particularly around Title IX and gender issues.

Bill:

Now, it’s important to understand, whenever we talk about any particular culture, we have to be careful about stereotyping. Now in our state we have a large Italian-American population. Now, if you were to ask 10 Italian-Americans what are Italian-Americans like, you’re liable to get 10 different responses. Not everyone’s going to agree. All right? So, just be careful about stereotyping particular cultures. But it’s important to understand in different cultures, whether it’s race or religion and so on, that gender roles are interpreted differently. That in our society, men and women are considered equal and they play out equal roles in work, but also in society. That’s not always the same in other cultures. So, issues that affect boys aren’t always taken the same as issues that affect girls. So, sometimes we have to work with parents and communities to help them understand that.

Bill:

Second issue is regarding sex. In my classes I always ask students, did your parents sit down with you to tell you about the birds and the bees? And often we got a lot of, “Nope, never did.” So, some folks aren’t particularly comfortable talking about sex. And in other cultures, it’s even less so than Americans who we’re talking about sex all the time in a variety of ways and openly. And in other cultures it’s often buried, it’s often much more subtle. So, we have to understand that it’s important to help people work with those particular cultures.

Bill:

And lastly, just reluctance and the fear of complaining. In all the years that I worked in handling civil rights compliance, the great majority of the complaints that I received were from the suburbs. Very few were from the inner cities. And it weighs heavily on my mind about why do people who are in the inner city, many who are people of color, have a reluctance of complaining. And we could go into a whole different workshop just on that, but it’s important to understand that different cultural groups will be much more reluctant to file complaints. Let me stop there.

Marianna Stepniak:

That’s perfect, Bill. Thank you so much for that presentation and for getting us up to speed, bringing these two things together and thinking about what being a Title IX coordinator looks like and those roles and responsibilities. So, we’re going to move into the next part of the presentation, which is I’m going to hop in and talk to you about the Final Rule, understanding the new Title IX regulations. So, I’ve already introduced myself. My name is Marianna. I am a program and communications associate from MAEC, and I’m honored to be on this panel with these incredible folks.

Marianna Stepniak:

So before I get started, I want to start with a disclaimer to say that the information provided here is not and should not be treated as legal advice. I am not a lawyer. I don’t have a law degree. This presentation is an overview of the changes released on August 14, 2020 Title IX. If you have specific legal questions, you should consult with your school district or state’s legal counsel as to how your district or state plans to implement the regulations. I’m not going to pretend to have that knowledge because I don’t, and just wanted to say that from the start.

Marianna Stepniak:

So, what is the Final Rule? On August 14th, 2020, the U.S. Department of Education amended Title IX to determine how schools navigate incidents of sexual harassment, and these amendments are now called the Final Rule. As Bill and Phyllis have talked about, Title IX is not just about sexual harassment. I’m sure that was made very clear for beginning by Phyllis. But this discussion around the Final Rule is going to be centering around sexual harassment because that’s what this piece of the pie covers.

Marianna Stepniak:

And I also want to say that my review of the Final Rule in this presentation sticks pretty closely to the amendments as they were written, rather than providing any kind of interpretation about how to implement them. Again, that’s not within my purview. But Shiwali Patel who will go after me, who is counsel at the National Women’s Law Center, she’ll share some ways that schools and districts can implement the new regulations in thinking through more of what that looks like.

Marianna Stepniak:

So, why was the Final Rule created? The needs outlined here were as described by the Department of Education under the Trump administration under Betsy DeVos’s leadership. And so, I’m going to walk through them just to give us some context. Why the need? First, to clarify sexual harassment as a form of sex discrimination.

Marianna Stepniak:

Second, to ensure fairness and due process proceedings between both parties, and both parties referring to both the complainant, the person who is coming forward with the complaint, and the respondent, the person against whom the complaint is filed. And those ensuring fairness has manifested in a number of ways, looking like making sure that both parties have advisors to walk them through the process, that there are hearings mandated at the university level which involve cross-examination of both parties, and there’s an appeals process for both parties.

Marianna Stepniak:

And the third need listed is to require that schools offer survivors supportive measures to ensure educational access for both parties. So, just to ground us in some context there. MAEC developed a series of briefs this past summer in preparation of the Final Rule coming out to identify what changed for whom in what ways with the Final Rule, and it’s split into three overarching sections. The first is looking at roles and responsibilities, specifically of the Title IX coordinator, the investigator, and the decision maker. This is one, two, and three here. And the second broad category is a side-by-side then and now, identifying specifically what has changed by looking at a comparison.

Marianna Stepniak:

And number five on this list, this third category, is a flow chart that walks through the entire process. And I’m not checking the chart right now, but I’ve asked [inaudible 00:44:06] just to pop it in the chat. So, if you’d like to go check it out now or after this presentation, this is the page it brings you to. It’s a resources page. It has a brief description and each of the links beneath it.

Marianna Stepniak:

So, my presentation is going to be an overview. As Phyllis said, there is so much to cover here, and there’s no way we can cover it in this hour-and-a-half long webinar. So, I’m going to cover the biggest changes to Title IX, pulling out of the 2,000 pages just a couple of slides that indicate what I think you should know.

Marianna Stepniak:

So, definition of sexual harassment has changed. With this slide, I’m going to do a then and now sort of thing. The pre 2020 regulations gives us some context so you can identify more clearly the changes with the Final Rule. I think that context is helpful seeing where it was and where it is now, and the most important part of this page is the 2020 regulations. So, [inaudible 00:45:05] there.

Marianna Stepniak:

So, before the 2020 regulations, the Final Rule, the definition of sexual harassment was when submission to unwelcome sexual conduct explicitly or implicitly affects an individual’s employment. And there were two types, quid pro quo and hostile environment. Quid pro quo, the definition was when submitting to or rejecting participation in sexual conduct affects employment decisions, and hostile environment was when severe or pervasive sexual conduct creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. So, this is a previous definition.

Marianna Stepniak:

We’re now going to look at what it is now under the Final Rule. So, the language has changed the beginning. The definition of sexual harassment is the conduct on the basis of sex that fulfills one or more of the following categories, and there are three categories here. Quid pro quo, which with a slightly different definition, unwelcome sexual …

PART 2 OF 4 ENDS [00:46:04]

Marianna Stepniak:

Well, with a slightly different definition, unwelcome sexual harassment by a school employee. Second, unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person equal access to their education. You’ll see I’ve bolded the word and here. The second definition diverges from the Supreme Court’s workplace harassment standard of severe, pervasive, or objectively offensive behavior. So all three must be present in order for it to be perceived and examined as sexual harassment.

Marianna Stepniak:

Then the third definition listed here is an incident that meets the definition of sexual assault, dating violence, domestic violence, or stalking under the Clery Act. This definition includes language from the violence against Women’s Act amendments to the Clery Act in 2013, which effectively expand the rights afforded to survivors of these four areas. You’ll be getting these slides afterwards if you’ve registered for this webinar, so you can take more time to process this through yourself.

Marianna Stepniak:

So where does Title IX have jurisdiction? The short answer is anywhere sponsored by an educational agency or school on and off campus. But the more complex answer is there’s some new language around off-campus jurisdiction. School jurisdiction includes off-campus locations over which the school exercises substantial control. I’m not going to go into interpretations of that, but that language leaves a little bit of space, some nuance there. There are other scenarios in which Title IX explicitly has jurisdiction. I’m going to talk about one here.

Marianna Stepniak:

Title IX has jurisdiction when the complainant is participating in or attempting to participate in an education program or activity. So if they file a complaint and they are not currently participating, it can be thrown out the window unless there are other protections in place. So this means thinking about the jurisdiction that the Title IX coordinator needs to inform anyone who is involved in overseeing, supervising, funding, sponsoring, promoting, or endorsing school affiliate activities that their area is included within Title IX jurisdiction.

Marianna Stepniak:

Which brings us to federally mandated reporters. Because so many areas are under jurisdiction, there are many more people who need to become federally mandated reporters, specifically all elementary and secondary school employees are federally mandated reporters now. I have Oprah here saying, “You are a federally mandated reporter, you’re a federally mandated reporter.” Everyone. This is a huge change from before the final rule when only the Title IX coordinator was federally mandated to report allegations of Title IX violations.

Marianna Stepniak:

So for Title IX coordinators, what does this mean? Training. All district and school employees need to receive training on how to recognize potential Title IX violations and how to report them to the Title IX coordinator. So thinking of reporting these violations, previously, the Title IX process began as soon as the Title IX coordinator had knowledge of sexual harassment or assault. Now, that process can’t begin until there’s a formal complaint. A formal complaint,, as I identify here is a report of sexual harassment allegations signed by the Title IX coordinator.

Marianna Stepniak:

I’ll show the flow chart later that indicates where the formal complaint process starts. But again, the whole sexual harassment and assault grievance procedure cannot begin until a formal complaint is filed. So after the formal complaint process, there are two new roles introduced to the grievance procedure, the investigator and the decision maker. Their names are pretty self-explanatory. The investigator investigates, and the decision maker makes decisions.

Marianna Stepniak:

So the investigator investigates the Title IX complaint to determine if it fulfills the definition of sexual harassment. They must share all the information that they gathered with both parties, I’m talking about the complainant party and the respondent party, before a decision is issued. The decision maker oversees the hearing, if there is one, and delivers the verdict on sexual harassment allegations.

Marianna Stepniak:

So an important note here is that the Title IX coordinator can be the investigator, but they cannot be the decision maker. So you might only need to have two positions, investigator and Title IX coordinator and decision-maker, but there are specific responsibilities for three. The Title IX coordinator here still oversees all Title IX compliance from again.

Marianna Stepniak:

All right. Another big change made by the final rule is determining the evidence standards. So this pyramid shown on the screen describes different burdens of proof. The higher up you go on the pyramid, the higher the burden of proof. Previously, schools had to use a preponderance of the evidence standard, which aligns with the standard used by all courts in civil rights cases. This standard means that the decision maker believes that it is more likely than not that the respondent was responsible for breaking school policy under Title IX.

Marianna Stepniak:

Now, under the final rule, schools have the ability to choose whether they abide by a preponderance of the evidence standard or the clear and convincing evidence standard. So the clear and convincing evidence standard, which is now outlined in red, means that the decision maker has a firm belief or conviction, they have a higher burden of proof, that the respondent was responsible for breaking school policy under Title IX. So schools can choose, as I’ve said before, which standard they want to apply, but they have to apply the same standard to all Title IX sexual harassment cases, regardless of whether the parties involved are students or employees, which is a really important thing to remember.

Marianna Stepniak:

All right, to better understand how all of these parts work together, we created a flow chart, basically, and it might be a little hard to see on your screen, so we’re going to pop it in the chat as well. This flow chart outlines the grievance procedure from beginning to end in four overarching sections. So starting with the formal complaint process, which is overseen entirely by the Title IX coordinator, then the investigation process, which the investigator works on, the decision-making process, where the decision maker is involved, and the appeals process, overseen by an appeals decision maker. Different. That process only occurs if the parties don’t accept the written decision from the decision maker. So this, for me, is a really clear way for us to see how all these parts play together. Again, that’s in the chat, so you can access that.

Marianna Stepniak:

So the final rule includes so many changes that impact how schools, districts, and states handle Title IX, and this presentation provided a brief overview of what’s changed, for whom, and what that process needs to look like so that you can think about where you in your context need to go from here. Please reach out to me by email here or interact with us at MAEC through any of the following social media platforms or our website. Thank you so much, everyone, for your time today. I’m going to turn it over to our next speaker, Shiwali Patel. So over to you, Shiwali.

Shiwali Patel:

Okay. Before I get into the slides, I just wanted to provide a little bit of an overview where we are right now with the Biden administration and the Title IX role. So I just wanted to say thank you so much for having me participate in this webinar.

Shiwali Patel:

I’m Shiwali Patel. I’m the Director of Justice for Student Survivors and Senior Council at the National Women’s Law Center, and WLC for short, which was founded in 1972, the same year that Title IX was enacted. Since then we have been working on issues of gender equity in education. We also work on other issues impacting the rights of women and girls, including in the workplace and healthcare and income security and around childcare. We not only focus on policy and legal advocacy, but we also focus on culture change and thinking of how can we change people’s minds or get them to think about these issues in a way that they haven’t before, recognizing how culture change can also change the laws and vice versa.

Shiwali Patel:

So we get to approach this work from all angles. My work in particular focuses on gender-based harassment in schools. So I’m following Marianna’s excellent summary of the Title IX role changes. I just wanted to talk a little bit about what’s going to happen with this. As Marianna said, the rule went into effect on August 14th. It’s just been a few months and in the middle of a global pandemic. So at a time when schools are already scrambling to meet the needs of students, to change the way that they are conducting education, remote learning, and at the same time now required to completely overhaul their Title IX procedures, which is just quite as big undertaking, as you all are a lot more familiar with, being responsible, some of you, as Title IX coordinators for that change.

Shiwali Patel:

So because of the final rule being unlawful, as we claimed, the National Women’s Law Center, we and along with… I guess there have been three other lawsuits. So we had fought a lawsuit against the department of education last year, before the rule went into effect. There were three other lawsuits that were filed all challenging the rule under the Administrative Procedures Act, which basically means that we’ve challenged the process that the Department of Education used to put forward these rules. We’ve claimed that it was arbitrary and capricious, that it was contrary here as a Title IX policy, that it was unlawful. It ultimately really just turned Title IX on its head by only requiring schools to respond to a subset of sexual harassment, to not all forms of sexual harassment, and to have a chilling effect, and also to carve out unique procedures only for sexual harassment.

Shiwali Patel:

As you all know, schools are not only responding to sexual harassment. They’re responding to all forms of harassment and other types of student misconduct. But now under this Title IX rule, the Department of Education has created this unique process that really is stacked against complainants. By allowing for there to be a higher standard of evidence, as Marianna explained, for institutions of higher education requiring direct live cross-examination by a respondent’s advisor of choice… it could be anyone… requiring that there be a presumption of non-responsibility.

Shiwali Patel:

So underlying all of this, we believe, is this deep rooted skepticism of complaints of sexual harassment and disbelief of survivors in particular, which is why they’re putting forward more burdens for these types of complaints in particular. So that summarizes some of the issues that we brought forward in our complaint.

Shiwali Patel:

Two of the other lawsuits that have been filed have since been dismissed. In our lawsuit, we had a trial in November. So we are awaiting a decision any day now. We have represented four legal advocacy organizations throughout the country that provide services to student survivors in their school processes, as well as individual students themselves who are sexually harassed, some after August 14, and are subjected to the Title IX rule.

Shiwali Patel:

So we’re waiting for a decision, and that could impact what would happen. We don’t know if the judge is going to strike down part of the rule. If the judge does strike down part of the rule, if it would be limited to where we sued or if it would be for the entire nation, and that could have an impact on what the Biden Administration might do around Title IX. So as many of you know already or may have heard, Biden has, especially under the Obama Administration, has been a strong supporter of students survivors of sexual violence, and has indicated when he was campaigning that he had plans to repeal the Title IX rule.

Shiwali Patel:

Obviously that hasn’t happened yet. Once it does happen, it’s going to take a long time because just like this rule took over a year to come into place, a couple of years, actually, since DeVoss first announced that she was going to go into rulemaking on the Title IX rules in September of 2017, this would probably take at least a year. So it would be a while before the rules are undone, and we don’t know when that will be and how our litigation will impact it. So unfortunately that can’t just be undone right away.

Shiwali Patel:

So I just wanted to talk a little bit about what you can do now with the Title IX rule, and then talk about this new resource that we have recently issued called 100 School Districts. So for the Title IX rule, as Marianna covered, it imposes, and as we’ve argued in our lawsuit, many harmful requirements. However, there are still ways that schools can retain discretion to maintain a variety of survivor supportive policies while still complying with the Title IX rule. This is around responses to sexual harassment and supportive measures that schools should offer to survivors.

Shiwali Patel:

So for example, the Title IX rule allow schools to respond to sexual harassment under non-Title IX policies. So when incidents of sexual misconduct must be ignored or dismissed under the new Title IX rule, let’s say because it doesn’t meet this new narrow definition of sexual harassment that Marianna covered, the department indicated in the rule that schools can instead address that conduct. So other forms of sexual harassment that might not be considered severe enough or pervasive enough, schools can still address it under provisions of other codes of conduct. So that’s what we encourage schools to do, to have these non-Title IX policies. I know it seems odd to have two separate policies addressing sexual harassment, but that’s unfortunately what the Title IX rule, what these recent changes have created, is that to address other types of sexual harassment, whether it occurs outside of an education program activity or it’s not severe enough, it could be addressed under a non-Title IX policy.

Shiwali Patel:

Even when the sexual harassment complaint must follow the rules, the new rules, procedural requirements, schools nevertheless have the option of implementing additional protections for survivors and their investigation and hearing procedures. I’ll talk a little bit more about this when we cover the 100 School Districts resource. Then the department of education, again, this was under the last administration, provided some clarification regarding permissible school policy as to pre August 14, 2020 conduct. Remember, August 14, 2020 was the date that the rule went into effect.

Shiwali Patel:

So the department indicated that complaints of sexual harassment that occurred before August 14, 2020 are governed by the department’s policies in place at time of the incident, not by the new Title IX rule. So while the department hasn’t provided clarity on what this means, it’s suggested the schools can still… It suggests that it may require schools to address sexual harassment that occurred before then.

Shiwali Patel:

So now I’m going to talk a little bit about our 100 School Districts guidance, but before doing that, I will provide my contact information in the end if anyone would like more information about these ways of interpreting the Title IX rule to be more protective of students. We’ve dug really deep into that at the National Women’s Law Center, so I’m happy to be a resource.

Shiwali Patel:

So as we know, schools are often the first places where people experienced sexual harassment, but yet few students report it. Those who come forward, we have seen through the cases we’ve litigated and the studies and the research that we’ve done, is that they’re often ignored, disbelieved, or even punished by the schools. In fact, these are the types of cases we litigate at NWLC where, when students have come forward at their schools, typically high school students where we represented, they were punished. They were disbelieved and then punished for violating their school’s sexual misconduct policies, unfortunately. So in those instances, we have brought Title IX lawsuits.

Shiwali Patel:

So this 100 School Districts project is based on the principle that schools have a critical role to play in responding to and preventing sexual harass harassment and can really be sites of transformative change. This call to action is actually rooted in Tarana Burke’s Me Too movement, which as you know went viral in October, 2018, the hashtag #MeToo. At that time, an organization called Girls For Gender Equity and the National Women’s Law Center, along with other key partners, about 300 other organizations, we published a full page ad in the New York Times called To Those Who Seek A Better World in the Me Too Era. In that letter ad, we call for policy reform, funding, and community organizing to address and prevent sexual harassment in schools, work, homes in our communities, and to avoid policy responses that further criminalized people of color and other marginalized communities.

Shiwali Patel:

So as a follow-up to that, to our call to schools, NWLC and GGE released 11 recommendations for prevention and response, which is our 100 School Districts resource. We’re actually going to revise it and update it and add another, but I think we share the link, so we can move to the next slide.

Shiwali Patel:

So again, underlying this resource is a recognition that I, as I said earlier, that while sexual harassment is so prevalent, it’s so under reported and it affects many students. We’ve conducted one survey where we found through our Let Her Learn report series that one in five girls ages 14 to 18 have been kissed or touched without their consent, and that these statistics are often higher for students of color, especially black women and girls, pregnant parenting students, LGBTQ students, and students with disabilities.

Shiwali Patel:

Then many students don’t report their sexual harassment because of shame, self blame, fear of school discipline, fear of involving police. So it makes the school’s responses even more critical. so I’m just going to cover we have the comprehensive protection, the prevention, and response, and I have the 11 topics we’ve identified to help schools as our recommendations for how schools can be transformative. So if we can move to the next slide, we’ll start with sex education.

Shiwali Patel:

[inaudible 01:05:57]

Shiwali Patel:

So Bill mentioned this in his presentation about the comfort level and the importance of talking about sex. Sexual health education is one of the most effective tools in preventing sexual harassment. Research has shown that providing sexual health education for K-12 students that is age appropriate, developmentally appropriate, that is medically accurate, LGBTQ-inclusive, that covers consent, is one of the strongest indicator of reducing the likelihood that that student could be a victim or perpetrator of sexual harassment. So that is critical, comprehensive sex education.

Shiwali Patel:

The other, and this also touches on what Bill talked about, is to train school staff on how to recognize and respond to sexual harassment, including understanding what the signs of sexual abuse are, cleaning, grooming, and also knowing what their Title IX policies are. We have also seen that in the cases we’ve litigated, unfortunately too often school employees are not even aware of who they’re Title IX coordinator is. So how can we expect the students to know who that person is? If they don’t know who their Title IX coordinator is, they’re also unlikely to know that they have rights if they’re sexually harassed or experiencing sex discrimination.

Shiwali Patel:

When we’ve filed lawsuits, we have conducted depositions of employees, and that’s how we get that information. We’ll ask the question, “Do you know who the Title IX coordinator is?” More often than not, we get, “No, I don’t know, and I didn’t know that person existed.” So having training is absolutely critical, and to ensure also that employees understand trauma and how to respond to sexual harassment in a trauma-informed way, and how to understand how a student’s behavior to sexual harassment could be a result of the trauma, and to avoid putting great myths and other stereotypes on them.

Shiwali Patel:

So for example, if a student, after being sexually abused by another student, maybe they still communicated with them. That doesn’t mean that they were never assaulted. It just could be a response to the sexual assault. So I know we’re listing some links for our website. NWLC.org/respectstudents is our hub of all of our Title IX rule resources. So if you want to look at our fact sheets that provide and explain around the Title IX rule changes, we have that, and just other information about Title IX. Can we go to the next slide?

Shiwali Patel:

We also think it’s critical for prevention to remove police from schools and to put resources into counseling and mental health resources and to supportive measures for students. We’ve been hearing more and more about, especially over the last year, black and indigenous students are disproportionately arrested in schools and are disciplined. There is data that supports this, or the Department of Education, Civil Rights data collection, CRD-

PART 3 OF 4 ENDS [01:09:04]

Shiwali Patel:

… supports this or the department of education, Civil Rights Data Collection, CRDC Data, and girls of color in particular, often at times have faced sexual violence and harassment by the school police. And so it’s not that police actually make them safer.

Shiwali Patel:

And what we’ve seen in cases is sometimes when police have been involved in investigating sexual harassment cases, they haven’t made it better. They aren’t often trained in being trauma informed. They don’t always make students safer. So it’s much better to invest in other types of resources that are supportive of students and what their actual needs are. And that includes investing in social workers and other non police adult helpers. We can move to the next slide.

Shiwali Patel:

To wrap up, we also talk in our under school district resource about eliminating school dress codes and the role that dress codes play in promoting rape culture. So for example, what you wore, wearing that short skirt made you responsible for this attention you got, when that’s not the message we want to send to young girls.

Shiwali Patel:

We also have done studies showing that they have been disproportionately used against black girls in particular. We have reports coauthored by black girls in GC, for example, where they’ve shared their stories about how they’ve been particularly policed by their school’s dress codes and treated unfairly.

Shiwali Patel:

It’s also critical that schools collect climate surveys to understand the prevalence and the impact of sexual harassment. As we know, sexual harassment is still under reported, so collecting anonymous climate surveys is a critical tool for actually understanding what’s happening in schools. And then if we can move to the next slide.

Shiwali Patel:

We have to make it easy to report sexual harassment. I won’t repeat this, because Bill talked about the importance of doing that and also provide a wide range of supportive measures to students who report sexual harassment. Too many students are pushed out of the school once they’re sexually harassed because they’re not getting enough support.

Shiwali Patel:

They’re not getting the changes or accommodations to their classroom assignments that they need, whether it’s to change a classroom so they’re not sharing the same class as their harasser or their rapist, or they’re not given an extension on an exam or homework that they need because of the trauma from having just been harassed or assaulted.

Shiwali Patel:

And so there are many ways that schools should be supporting them in our [inaudible 01:11:31] school districts resource talks more about that. And then the last slide, please. Last few slides.

Shiwali Patel:

Don’t discipline students who report misconduct. Again, it’s critical to have amnesty policies that make it easier for students to come forward to report sexual harassment. That means not subjecting them to punishment for conduct that occurred as a result of the assault or the harassment.

Shiwali Patel:

And this could include maybe skipping class because after a student was assaulted because they didn’t want to be in the same classroom as their assailant or their assailant’s friends. And schools should also ensure that there are prompt and equitable investigations, and then the last slide last, 25.

Shiwali Patel:

And offer a restorative process that students can choose instead of a traditional disciplinary process. There’s been a lot more talk about using restorative justice for sexual harassment and that is an option that the new Title IX rule, at least with informed resolution provides more explicitly. And then my last slide.

Shiwali Patel:

So thank you. And my contact information is right there on the slide. You can email me if you have any more questions. And we also have a link to our legal network for gender equity, where we can provide the names of attorneys and take some referrals for students who’ve been sexually harassed. So thank you so much.

Marianna Stepniak:

Thank you so much Shiwali. That was, as you all can see now, there is so much to cover here, so much. And we’re providing a brief overview. That was really helpful Shiwali. All right, I’m going to stop sharing and Bill, Phyllis and Shiwali, if you can turn your cameras on, I totally agree with. Person in the chat, I can’t see your [inaudible 01:13:24] Magdalena. Thank you. So much informative, Shiwali.

Marianna Stepniak:

All right. This is the time we’re going to move into Q&A. So I’ve seen that there are some questions popping into the Q&A box, and I’m going to start with the first question that came in. And so our role here is I’m going to read the question out loud and then whoever from our team wants to hop in and answer it, just hop right in and we’ll get going there.

Marianna Stepniak:

All right. The first question here is, where does unwanted and persistent verbal or communication fit in when it’s not sexual in nature, but harassment to an individual? Where does this fit in when creating a persistent unwelcome environment? Perhaps you were defining sexual to mean against gender, not just to sexual conduct. And I’m going to put that in the chat for the panelists so you can read it, if that’s helpful because it’s a bit of a long question. Where does unwanted and persistent verbal or communication fit in if it’s harassment, but not sexual in nature?

Bill:

Let me take a step at that. When we do Title IX training in Connecticut, it’s actually called Title IX equity coordinator, which means not only do we cover Title IX, but we cover Title VI, 504, ADAs, Title VII, all the alphabet soup of laws and also state law.

Bill:

So there’s an expression that when all you have is a hammer, everything looks like a nail. Is that how the expression goes? So you have your Title IX hat on, and you’re thinking Title IX, Title IX, Title IX. You also have to remember, sometimes harassment is based on race. Sometimes it’s based on religion. Sometimes it’s based on the protected classes. Sometimes it’s just bullying. Sometimes it’s just a criminal activity.

Bill:

So we have to be able to look at the behavior and then think about all the different categories it could fall under. So widen your hat from not just being Title IX, but also all the other protected classes. And don’t forget, sometimes state law is more powerful than federal law. So state law may actually be a response.

Phyllis K. Lerner:

I just want to thank Bill for that answer. As someone who works in schools all the time, most kids are not just one part of their package.

Shiwali Patel:

I’m going to share a resource from the department of education’s office for civil rights. It’s a dear colleague letter that has now been [inaudible 01:16:14] addressing as Bill said, other forms of discriminatory harassment. So harassment based on race and discipline. But however, the information based on sexual harassment in there is now outdated by the Title IX rule.

Shiwali Patel:

And the title IX rule doesn’t just cover sexual harassment, it also does cover other forms of sex based discrimination. It does require that schools have prompt and equitable grievance procedures. That has not changed for all forms of sex discrimination, and that would also include harassment that’s not sexual in nature. And I put the link to the guidance and the chat. Oh, I sent it to all panelists instead, sorry.

Marianna Stepniak:

Yeah, it’s tricky figuring out. All right, that’s really helpful. Thank you all three of you. I see there are more questions coming in, which is really great. I’m going to go to this one. This person says, from my understanding, trans kids that are harassed on the basis of gender identity are not protected under Title IX. Are there efforts to change that? Do you anticipate that the new department of education will reframe their definition? And if they do, will that automatically include trans kids in Title IX protection or will there need to be additional policy change? I’m going to send this to all of you again so you can read it to help you process.

Shiwali Patel:

I can start the response. So trans kids are protected. They are discriminated based on their gender identity under Title IX. And the Biden administration a few weeks ago issued an executive order affirming the Supreme Court’s decision in Bostock that held that discrimination based on gender identity and sexual orientation is discrimination based on sex, which is prohibited under anti-sex discrimination laws, in that case it’s Title VII.

Shiwali Patel:

But the Biden administration indicated that it was going to fully enforce Bostock and its implementation of other civil rights laws, and mentioned the rights of transgender students. And so I think hopefully we will see more clarification if there is rulemaking on Title IX to clarify what the protections are under sexual harassment. Our organization, NWLC as well as others have also asked that the department of education clarify how Title IX specifically protects LGBTQ students.

Phyllis K. Lerner:

One of the areas where the complexity of trans issues is evident is in sports and athletics. And in both the Olympic level and the professional world, and some other areas, there are people of equitable consciousness really discussing and debating this topic.

Phyllis K. Lerner:

What I would ask is that we don’t let the complexity of us lock us out from the openness and availability of opportunities for everybody else right now. So let’s not eliminate kids and eliminate programs, let’s look for the greater level of participation for all kids.

Phyllis K. Lerner:

If it’s only about one person winning the marathon, there are a lot of losers and we need to reevaluate the way we see winning and losing in athletics as part of our greater educational goal. Most kids don’t choose to be transgendered just so they can beat somebody in the high jump.

Marianna Stepniak:

That’s helpful framing. The idea of if one kid, if we’re focused on winning the marathon, a lot of people lose. And this came up last week with the department of education hearing as well. The hearing of the new secretary.

Marianna Stepniak:

Okay, so another question that’s come in, which I think is one that I’ve thought about and really want to hear Shiwali’s thoughts too is, what about cases pre-August 2020? Any retro application? What happens with Title IX?

Shiwali Patel:

Yeah, so the department of education indicated in the last administration through some TA document, ironically were so against sub-regulatory guidance, but issued a lot of clarification through what I would call a regulatory guidance, but in one of those clarifying documents, they stated that for complaints of sexual harassment, so incidents that occurred before August 14, 2020, a school’s response would be governed by the department’s policies that were in place at the time.

Shiwali Patel:

And they specified in those documents the 2001 Dear Colleague Letter, and the 2017 Q&A. I think they didn’t mention the 2011 or 2014 guidance documents because they were rescinded in 2017. They haven’t provided much more clarity other than that they would be guided by other standards.

Shiwali Patel:

If you get a report today of something that occurred a year ago, February, 2020, the Title IX standards would not have to apply. So let’s say it was an off-campus incident of sexual harassment, you should, based on this post rule guidance that had come out from the department, be able to analyze it under a Title IX framework. I know is confusing, and that’s part of the issue with these rules.

Marianna Stepniak:

It is very confusing. Thanks for clarifying a little bit there Shiwali. The next question which I’m popping in the chat for the panelists is, for Bill specifically, Bill, you mentioned that your prior SEA role was in support of your districts. Beyond training and awareness, did you provide investigation assistance to districts?

Bill:

We used to do title IX training when we first started in three days. And because of time and people saying, I just can’t get out of class for three days, we eventually weaned it down to one day of title training. It was tight, but it was doable.

Bill:

OCR indicated to us that they’re concerned about poor investigations done by my schools of course because I didn’t go to law school either, and I didn’t know that lawyers didn’t get training in conducting investigations in law school. I thought that was something that happened because I watch Law and Order all the time so I figured every lawyer knew how to conduct an investigation. Apparently that’s not true.

Bill:

So we found a person in Washington who was not only an amazing former educator, she was a high school principal about she’s also a lawyer trained in Title IX. So I would strongly suggest that you bring in someone with that kind of training, and that’s what we did. We offered two days back to back for the kind of training, but we would also answer generic questions too about conducting an investigation.

Bill:

The other source that’s sometimes helpful is the police department. But just keep in mind the police department, they conduct interrogations. They don’t conduct investigations. So in terms of interviewing techniques, if you have a youth service officer in your district, it might be helpful. Ask them, can you give me some tips on when you conduct an investigation how to do it, questions to ask and so on? Short answer, yes.

Marianna Stepniak:

Thanks Phil. The next question I’m going to send to the panelists is, if our school district’s Title IX coordinator doesn’t have the knowledge to train staff, parents and students, where would we look? Where should we look perhaps for someone to do the training? Good question.

Shiwali Patel:

I’ll get started, but I’m sure Bill and Phyllis will have some thoughts on this. I think one thing is to look at outside organizations like the training you’re doing right now. And if it’s about specific issues, maybe not directly related to like what the Title IX requirements are, but maybe about understanding sexual harassment, the dynamics of it, how to respond in a trauma informed manner, maybe there’s a local crisis center or advocacy organization that’d be willing to provide that type of training given the work that they do.

Shiwali Patel:

So I think there are resources. When I was at the DC Rape Crisis Center years ago, we would do trainings at schools. We would go into school and also talk to young people about these issues because they’re not talked to enough about it even though they experience it at such high rates and levels and with educators as well.

Bill:

I just want to throw out too. The equity assistance centers are an excellent source for doing this training. This is what they do. They’re just on the road doing Title IX training, so I’m pleased talk to them. Just a word of caution, if you have a lawyer come in, just keep in mind that they’re often focused on Title VII and not on Title IX. So they’re more often focused on employment law than education law.

Bill:

And also if you’re using a law firm, a law firm needs understand school culture. Because the K-12 school culture is different than higher-ed. And that’s the other issue is that some of the training that’s available out there is excellent if you’re in higher-ed but if you’re in K-12, you’re going to spend the entire time saying, “Oh, that doesn’t apply to where I work because we don’t do those kinds of things in K-12.” So there are resources out there, just to make sure you know what you’re getting.

Phyllis K. Lerner:

I just want to reinforce both of my colleagues or all three of us. It’s very, very typical that the school district will turn to its legal attorney and that individual may not have a grounding in the classroom since they left it. So you really want to have a blend, and we’ve had the privilege over decades of working with each other’s organizations and really focusing on what benefits and support students’ wellbeing.

Bill:

Well, Phyllis brings up a great point too. When you use your school board attorney or the state attorney, I always ask the question, who are their constituents? Because are they there to protect the school district and protect the state board? Or are there to look after your interest? And I, for example, when parents ask me, what are my legal rights? What can I do? One of the things I would often frequently bring up and say, you have the right if you feel a teacher or an administrator has not followed their duties as a professional, you can ask for the revocation of their certificate to teach. You can file a complaint at the same point and say, this person should not be teaching. They’ve ignored my complaints around sexual harassment.

Bill:

Now lawyers would squirm every time they would say that. And it is a high bar to reach, but you have to stop and think when you ask for assistance from folks what their perspective is. And I tend to be out there saying, you deserve to know everything, whether I think you have a case or not, these are all your options.

Marianna Stepniak:

Thank you, all three of you. And I plugged my email in the chat. So if [inaudible 01:28:13] equity assistance center, MAEC houses an equity assistance center so please reach out if you are a person who had that question in your head. We are at 3:29 East Coast Time, and I’m going to say, thank you so much to our panelists. Thank you to everyone who’s joined us today. Thank you, [Nikivia 01:28:38], Jess and Kathleen behind the scenes, and please everyone who’s attended, please respond to the feedback survey, which has just been plugged in the chat.

Marianna Stepniak:

And if you have any questions, we plugged our emails here when we sent the follow-up email and the presentation. You will have access to the resources we put together, which also include our emails. And please feel free to reach out. We’re genuinely saying we are here for you as resources, so thank you so much everyone. Really appreciate your time and energy today, and thank you especially to Bill, Phyllis and Shiwali. Awesome job. Really glad to be up here with you.

Shiwali Patel:

Thanks everyone.