Education Lawyers | Leasor Crass, P.C.

Welcome to Leasor Crass, P.C. Leasor Crass, P.C. is a boutique law firm located in Mansfield, Texas, with a main focus on the representation of public schools. The firm is managed by Mike Leasor and Rhonda Crass, seasoned attorneys with …

By

Sex Discrimination 2.0

by Felicia Webb

One year ago, the United States Supreme Court handed down their decision in Bostock v. Clayton County. In making its decision, the Supreme Court found that employers who discriminate against employees based on sexual orientation and/or gender identity are inherently treating employees differently because of their sex, the exact practice Title VII prohibits in all expressions. The full Bostock opinion can be read here.

Since the Bostock decision was handed down, the public school community has been waiting and expecting the Department of Education to issue guidance on the decision’s applicability to Title IX and public schools. As of June 16, 2021, the wait is over. The Department of Education’s Office for Civil Rights (OCR) issued a Notice of Interpretation yesterday clarifying that it will enforce Title IX’s prohibition on discrimination on the basis of sex including (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.

In its Notice, OCR explains it has long recognized Title IX protects all students, including students who are homosexual, bisexual, and transgender, from harassment and other forms of discrimination. Further, OCR has acknowledged Title IX prohibits discrimination against all students who may not conform to stereotypical ideas of masculinity and femininity. However, OCR admitted that it has at times stated Title IX’s prohibition on discrimination based on sex stopped short of prohibiting discrimination based on sexual orientation and gender identity. As a result, OCR issued its Notice of Interpretation to make clear that the Department of Education “interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on sexual orientation and gender identity.”

OCR gleaned its interpretation by following the analysis of the Supreme Court in Bostock and identifying the textual similarities between Title VII and Title IX. Noting both statutes prohibit sex discrimination, with Title IX utilizing the phrase “on the basis of sex” and Title VII using “because of” sex and acknowledging the Supreme Court has used both phrases interchangeably. Further, various federal courts, including the 4th and 11th Circuit, have relied on Bostock in determining that Title IX’s prohibition against discrimination based on sex includes discrimination based on sexual orientation and gender identity. Lastly, OCR concluded the interpretation provided in its Notice “is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of sex discrimination.”

In other, but related news, Lieutenant Governor Dan Patrick asked Governor Greg Abbott to call a special legislative session in June to address three bills that died in the Texas House of Representatives last month. One of the bills concerned banning transgender students from playing on sports teams based on their gender identity. As of today, Governor Abbott has not acted on the Lieutenant Governor’s request to put the three bills, including the gender-related bill, on the agenda for a special session, but has expressed disappointment that the bills did not survive the regular session. It is unclear whether OCR’s Notice of Interpretation will spur any action on the part of the Texas Legislature.

If you would like to read the full Notice of Interpretation, click here.

If you have any additional questions about this Notice or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

By

COVID-19 UPDATE

Below are today’s updates regarding COVID-19 and its impact on Texas public schools.  For additional resources, please visit our COVID-19 page.

Title IX: Questions and Answers Regarding the Final Rule
Dean Micknal, Partner and Victoria Elliott, Associate

On May 6, 2020, the US Department of Education issued an extensive update to the Title IX regulations (the “Final Rule”).  As the new regulations take effect on August 14, 2020, districts do not have much time to digest the information and prepare for implementation.  In an effort to assist our districts in learning the new material, Leasor Crass will be providing guidance and training over the next few months, beginning with the answers to what we expect to be some common questions listed below.

Please click here to continue reading.

TEA’s Updated Guidance on Graduation Ceremonies (*Updated 5.27.2020*)
Holly James, Senior Associate

On May 18th, TEA updated its guidance pertaining to graduation ceremonies.  Districts now have four options for ceremonies:

  1. Completely virtual ceremonies are approved and may proceed without the need for any further action on the part of the district.
  2. “Hybrid ceremonies” (those involving a compilation of pre-recorded videos of students filmed individually or in small groups) are now permitted to take place effective May 5th (moved up from May 15th).
  3. Vehicle ceremonies may proceed effective May 15th.
  4. Outdoor in-person ceremonies may take place in any county on or after May 29th.

a. Between May 15 and May 28, outdoor ceremonies are permitted in rural counties that have filed the required attestation form regarding five or fewer COVID-19 cases.

Indoor ceremonies are not permitted yet.

TEA’s guidance contains detailed conditions and restrictions for each of the different types of ceremonies currently allowed.  Note that the permissions and guidelines are subject to change at any time depending on changes to the public-health situation.

Note: Recommendations specific to Dallas County are available here.

TEA Special Education Updates for the Week of May 4, 2020
Dean Micknal, Partner

The Texas Education Agency updated the COVID-19 Special Education Q&A last week to address a number of issues relating to evaluations and graduating students.

First, TEA clarified that the expiration of Governor Abbott’s Stay at Home Order does not give LEAs the green light to start performing face to face evaluations.  Rather, districts will need to continue adhering to the statewide school closure requirements.

TEA also addressed several important issues that implicate ARD committee authority and duties:

  • Question 12 reiterates that ARD committees will need to make individualized determinations with respect to what additional or alternative services might be needed to meet transition goals when IEP prescribed transition services are not able to be provided due to the COVID-19 pandemic response.
  • Question 13 addresses how ARD committees should proceed in making determinations about graduation for a student with modified curriculum when the student was unable to complete all activities required by the IEP.
  • Question 14 discusses how ARD committees should approach the provision of compensatory services to students who are graduating in the Spring of 2020.
  • Finally, Question 15 explains that federal regulations still require any decision to exit a student from special education services to be “informed by a complete evaluation of all relevant areas of student performance”, meaning that ARD committees are not allowed to move forward with exiting a student if they have not been able to complete an evaluation.

Please contact one of the attorneys at Leasor Crass in the event you need additional guidance on any of these issues pertaining to special education.

By

Title IX: Questions and Answers Regarding the Final Rule

On May 6, 2020, the US Department of Education issued an extensive update to the Title IX regulations (the “Final Rule”).  As the new regulations take effect on August 14, 2020, districts do not have much time to digest the information and prepare for implementation.  In an effort to assist our districts in learning the new material, Leasor Crass will be providing guidance and training over the next few months, beginning with the answers to what we expect to be some common questions listed below. As you develop additional questions, please reach out to us.  As always, we are here for you!

  1. What is Title IX?

A law that prohibits discrimination on the basis of sex in educational institutions that receive federal funding.

  1. What is the purpose of the recently issued revision?

As provided for in the Summary of the Final Rule, the primary purpose of the newly issued regulation is to:

[e]ffectuate Title IX’s prohibition against sex discrimination by requiring recipients to address sexual harassment as a form of sex discrimination in education programs or activities. The final regulations obligate recipients to respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims.

Additionally, Secretary DeVos’ Summary states that the regulations “clarify and modify Title IX regulatory requirements regarding”:

  • remedies the Department may impose on recipients for Title IX violations;
  • the intersection between Title IX, Constitutional protections, and other laws;
  • the designation by each recipient of a Title IX Coordinator to address sex discrimination including sexual harassment;
  • the dissemination of a recipient’s non-discrimination policy and contact information for a Title IX Coordinator;
  • the adoption by recipients of grievance procedures and a grievance process;
  • how a recipient may claim a religious exemption; and,
  • prohibition of retaliation for exercise of rights under Title IX.
  1. Who is protected by Title IX?

Any person in the United States who is involved in an educational program or activity that receives Federal financial assistance.

  1. What is the definition of sexual harassment for purposes of the revised regulations?

Any instance of quid pro quo harassment by a school’s employee, any unwelcome conduct that a reasonable person would find so severe, persuasive, and objectively offensive that it denies a person equal educational access, and any instance of sexual assault, dating violence, domestic violence, or stalking.

  1. What is “quid pro quo” harassment?

Pursuant to the Final Rule, Section 106.30(a) of the implementing regulations now defines quid pro quo harassment as “[a]n 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.”

  1. What does the school’s education program or activity include?

Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred. Title IX applies to all of a school’s education programs or activities, whether such programs or activities occur on-campus or off-campus.

  1. Does a district have to have a Title IX coordinator?

Yes.

  1. Who does the district have to notify of the Title IX coordinator’s contact information?

Applicants for admission and employment, parents or legal guardians of elementary and secondary school students, and all unions.

  1. What Title IX contact information is a district obligated to give out?

The name or title, office address, e-mail address, and telephone number of the Title IX coordinator.

  1. Does the district have to display the Title IX coordinator’s contact information anywhere else?

Yes.  Districts must display the contact information for the Title IX coordinator on their website.

  1. What triggers an obligation to respond to allegations of sexual harassment?

K-12 schools must respond whenever ANY employee has actual notice of sexual harassment, including allegations of sexual harassment. Previously, districts had actual knowledge when an official with authority to take corrective action was notified.

  1. Who can report sexual harassment?

As stated above, any person may report sexual harassment, either directly to the Title IX coordinator or to any other employee who is then responsible for forwarding the information to the Title IX coordinator.

  1. When does a report of sexual harassment have to be made to require a district to act?

At any time, including during non-business hours.

  1. What must a Title IX coordinator do after receiving a report of sexual harassment?

As revised, the regulations include specific obligations that the Title IX coordinator must undertake upon receiving a report of sexual harassment.  These include:

  • promptly contacting the complainant confidentially to discuss the availability of supportive measures;
  • considering the complainant’s wishes with respect to supportive measures;
  • informing the complainant of the availability of supportive measures with or without the filing of a formal complaint; and,
  • explaining to the complainant the process for filing a formal complaint.
  1. What must a district do after receiving a report of sexual harassment?

The district must follow the grievance process that aligns with the new regulations.

  1. After a report of sexual harassment is made, can the district discipline the alleged respondent?

No. The district must complete the grievance process and cannot impose any disciplinary sanctions or other actions against the student if the conduct in question arose out of the same facts of circumstances as a report of sexual harassment. However, the district may impose supportive measures against the respondent.

  1. What are supportive measures?

Individualized services reasonably available that are nonpunitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.

  1. How does a school determine what supportive measures are appropriate?

A school’s selection of supportive measures and remedies should be based on what is not clearly unreasonable in light of the known circumstances.

  1. Is the district required to investigate all reports of sexual harassment?

No. Either the complainant or the Title IX coordinator determines whether the report of sexual harassment is to be investigated. A complainant’s wishes with respect to whether the school investigates should be respected unless the Title IX coordinator determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances.

  1. Does the district have to investigate the report if the report does not meet the definition of sexual harassment or did not occur in the school’s education program or activity?

No. If the allegations in a formal complaint do not meet the definition of sexual harassment in the Final Rule, or did not occur in the school’s education program or activity against a person in the United States, the Final Rule clarifies that the school must dismiss such allegations for purposes of Title IX but may still address the allegations in any manner the school deems appropriate under the school’s own code of conduct.

  1. When must a district investigate a report of sexual harassment?

The school must investigate the allegations when any formal complaint is filed.

  1. What should the district do immediately after receiving a formal complaint?

The district must send written notice to both parties (complainant(s) and respondent(s)) of the allegations upon receipt of a formal complaint.

  1. Are hearings required, as part of the investigation, for K-12 schools?

While the Final Rule makes hearings mandatory at the post-secondary level, hearings are optional for purposes of K-12. However, the rule does require schools to provide an equal opportunity for both parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence during the investigation.

  1. Does the district have to afford each party the opportunity to question the opposing party?

Yes. The district must afford each party the right to question the opposing party. For postsecondary institutions, the school’s grievance policy must provide for a live hearing.  For K-12 schools, the grievance process may but need not provide for a live hearing.  With or without a hearing, after the school has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.

  1. Who issues the written determination of the investigation?

The decision maker, who cannot be the same person as the Title IX coordinator or the investigator.

  1. How does a district conclude an investigation?

The decision-maker (who cannot be the same person as the Title IX coordinator or the investigator) must issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. The written determination must be sent simultaneously to the parties along with information about how to file an appeal.

  1. Do the complainant and respondent have the right to an appeal of a district’s decision?

Yes. A school must offer both parties an appeal from a determination regarding responsibility, and from a school’s dismissal of a formal complaint or any allegations therein, on the following bases:

  • Procedural irregularity that affected the outcome of the matter;
  • Newly discovered evidence that could affect the outcome of the matter; and/or
  • Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.
  • A school may offer an appeal equally to both parties on additional bases.
  1. Can a district informally resolve a complaint?

Sometimes. A school, in its discretion, can choose to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution. Any person who facilitates an informal resolution must be well trained. At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. However, schools must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

  1. What requirement does the Final Rule impose with respect to retention of information related to Title IX incidents?

The final rule requires schools to document and keep records of all sexual harassment reports and investigation changes for seven years.

For more information, please see the following resources:

 

By

Baby You Can Drive My Car: How to Conduct a Sexual Harassment Investigation – Part 1

This post is the first in a two-part series that will provide guidance and strategies to district and campus administration and HR personnel on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.

In February 2017, a former Uber employee published a detailed, horrific story of alleged structural sexual harassment at the company. The article described an office culture in which members of an almost entirely male staff were routinely and openly hostile to female employees, from instances of verbal abuse and belittlement to job-based “blackmail” by HR and extensive sexual harassment. Among other things, the author recalls being suggestively coached on her appearance by her manager, his frequent use of striking racial slurs and his disparagement of business “ethics.” The author also described a habit among male employees of creating sexually explicit narratives about female peers and superiors in online group chats. The author alleges that she was propositioned for sex over company chat. When she reported the incident to Human Resources, she says, he did not lose his job because she was told the man was a “high performer” and it was his first offense. She says she later discovered this was untrue: Other women had reported the same manager to HR for similar offenses.

Whether or not the allegations are true, this case is a perfect example of a ‘Human Resources failure’ for how to deal to harassment claims. Here are some basics to a district’s obligations to investigate when an employee complains of harassment.

  1. Districts have a duty to conduct investigations. Districts have an affirmative duty to maintain a working environment free of harassment on the basis of a federally protected characteristic, such as race, color, or national origin, religion, sex, disability, age, or genetic information. 42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information).  Districts can be held liable for failing to take the steps necessary to prevent such harassment from occurring or for failing to promptly correct any harassing conduct about which it knew or should have known was occurring.  29 CFR 1604.11(d), (e), (f); 1606.8(d), (e).
  2. Districts may have to take action before conducting the investigation. Based on the allegations and facts of the case, as a precautionary measure, a district should consider whether immediate action is warranted.  The EEOC set forth examples of precautionary steps that may be necessary include:  “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, districts need to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
  3. The investigation must be immediate. How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), the employer’s response was held to be prompt where it began its investigation on the day the complaint was made, conducted interviews within two (2) days, and fired the harasser within ten (10) days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after the plaintiff filed a charge with the state Fair Employment Practices agency, even though the harasser was eventually terminated.  In Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993),  the court found that the investigation was prompt when it started one (1) day after the complaint was made and a detailed report was completed two (2) weeks later.  In Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5th Cir. 1993), the court held that an investigation was prompt when it was completed with one (1) week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992) found that an investigation was adequate when it was completed within four (4) days.
  4. The investigator must be experienced, unbiased, and trustworthy. There is no legal prohibition that internal employees, such as Human Resources personnel, cannot conduct investigations into employee complaints.  The investigator does not have to have investigation experience or meet any certain training requirements.  However, districts should take the time to thoroughly train an in-house person who can conduct harassment investigations.  First, the person needs to be able to conduct appropriate investigations in order to limit the liability of the district.  Second, the person’s experience and training will likely be closely examined, if not challenged, by opposing counsel if the case develops into litigation.  Training for potential district investigators could include the law and district board policies regarding harassment, selecting the appropriate investigative process for different types of investigations (i.e., who to interview first), assessing credibility of witnesses, and workplace investigative techniques and report writing.

The investigator cannot have a conflict of interest or bias towards the alleged victim or alleged harasser, so it is very important to select a person who does not have any personal involvement with any of the parties who are a part of the investigation. To avoid the appearance of any undue influence, the investigator must not be subject to any control or supervisory control of the alleged harasser. This means that for some smaller districts or in cases where the assistant superintendent or superintendent is alleged to have harassed someone, it is recommended that an outside third-party or law firm be hired to conduct the investigation.

If you need assistance with a workplace investigation, please feel free to contact me or any other attorney at Leasor Crass, P.C. The next post in this series will be How to Conduct a Sexual Harassment Investigation (Part 2).

Leasor Crass

LEASOR CRASS, P.C.

OFFICE LOCATION

302 W. Broad Street
Mansfield, Texas 76063
tel. 682.422.0009
fax. 682.422.0008