Angela Redmond Debro, General Counsel Alabama A&M University Title IX Update Angela Redmond Debro, General Counsel Alabama A&M University

What is Title IX? Title IX is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private colleges and universities which receive any Federal funds must comply with Title IX.

Avalanche of Interest

What is Gender Equity? An athletics program can be considered gender equitable when the participants in both the men's and women's sports programs would accept as fair and equitable the overall program of the other gender. No individual should be discriminated against on the basis of gender, institutionally or nationally, in intercollegiate athletics.  NCAA Gender Equity Task Force

The most important 37 Words for an Educational Institution 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.

From These 37 Words: 34 CFR Part 106 Dear Colleague Letters Considered “significant guidance documents” for how OCR evaluates whether covered entities are complying with legal obligations. Office of Civil Rights Guidance including FAQs Voluntary Resolution Agreements White House Task Force Recommendations Related Legal Requirements: Campus SaVE, Clery Act, Title VII A lot of information to disseminate Title IX coordinators Student Affairs Health and Wellness Legal

Who Interprets & Enforces the Law? The US Department of Education/Office for Civil Rights Develops and implements Regulations Manages Complaints Investigation & Enforcement Education 12 Regional Offices US Court system – federal or state law Binding in that jurisdiction

Quick History - The 1970’s Passed in 1972 -- Compliance Date of 1978 Multiple Attempts to Weaken the law in Committee Fail Assigned to Department of Education/OCR NCAA Lawsuit attempting to restrict application to athletics – 1976. Dismissed in 1978. 1979 – Key OCR Regulations for athletics issued Participation and sponsorship go UP for Men and Women since Title IX became law; including the last two years. 32,000

The 1980’s Suspended Operation 1984-1988 – Grove City v. Bell Civil Rights Restoration Act of 1988 NCAA Women’s Championships & AIAW – 1981-83 74,000

The 1990’s Courts Find a Private Right of Action & Monetary Damages for Intentional Violations Cohen v. Brown University – key case ’96 and ’98 Clarification Letters Issued ‘96 EADA – federal disclosure 96,000 186,000

2000+ ‘02 Commission on Opportunity in Athletics ’03 Further Clarification & ’05 Clarification Battle Retaliation Supreme Court Decision – ’05 2010 OCR Clarifications 186,000 249,000

Athletics Compliance Areas Sexual Harassment Generally Title IX campus Coordinator Athletics Specific Participation Financial Aid Treatment of student-athletes Plus – EADA & Fundraising Under the EADA, 20 U.S.C. § 1092(g), co-educational universities receiving federal funding and participating in intercollegiate athletics must report certain data, including student enrollment and student athletic participation, annually to ED. The EADA, however, was not promulgated under Title IX, and the two statutes serve different purposes. Thus, while OCR may examine EADA numbers, it does not rely on EADA data to determine if a school is in compliance with Title IX. Instead, OCR makes an independent determination of the number of athletic participation opportunities and evaluates the data related to the factors outlined above to determine if the university is offering genuine opportunities.

What is Sex Discrimination? Under Title IX sex discrimination includes sexual misconduct such as: • sexual harassment • sexual violence - rape, sexual assault, sexual battery and sexual coercion

Who does Title IX apply to? Students Faculty Staff Visitors Any University activity -- on or off campus

Jurisdiction Title IX applies to all of our educational programs and activities Not limited by “Clery maps” – on or close to campus Applies on and off campus Any conduct that would exclude someone from participation, deny them the benefit of, or subject them to discrimination re: our programs

Investigation Requirements School has a duty to investigate Promptly Thoroughly Impartially Three Tricky Areas: Even if police are investigating, school still has a duty. Interference can be an issue. Complainant requests confidentiality. Have to generally respect that request, BUT . . . What if the rest of the community is at risk? Resources. Options. Document. Investigators are becoming specialized.

Equitable Procedures Sanctioning the offender is not the only purpose – there is also prevention PREPONDERANCE OF THE EVIDENCE STANDARD Same appeal rights for each party Time frames OCR set a benchmark at 60 days (did not specify calendar or business) Parties are entitled to status updates Equal, written notification of the outcome There is an exception to FERPA Campus SaVE requires that the notice be “simultaneous” Equity is a major theme

University Remedies Immediate measures to eliminate a hostile environment End what’s occurring Prevent reoccurrence Remedy effects Interim measures during investigation Examples of University Resources: No Contact directives Modification of housing for either the complainant or respondent Safe housing for the complainant Academic support Employment support Modification of class schedules for either the complainant or respondent Counseling, health and mental health services Safety planning Legal services

Preventative Measures Publishing of the Notice of Nondiscrimination policies Designation of a Title IX Coordinator Adoption and Publishing of Grievance Procedures Education and Training Programs Training More Training!

DCL – May 13, 2016 (Transgender Students) Significant guidance Defines terminology Gender Identity Sex assigned at birth Transgender Gender Transition New Guidance in regards to the following: Safe and Nondiscriminatory Environment Identification Documents, Names and Pronouns Sex-Segregated Activities and Facilities Privacy and Education Records

Questions? Credits: NCAA, FGCU and SUNY