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Title IX

Title IX SectionContact PersonContact Number
Title IX for EmployeesIsrael Jimenez(830) 582-1536
ADA/504 for EmployeesIsrael Jimenez(830) 582-1536
Title IX for StudentsDr. Cathy Lauer(830) 582-1536
ADA/504 for StudentsDr. Cathy Lauer(830) 582-1536

NSCISD non discrimination policies:    Employee Welfare    Student Welfare

In compliance with Title IX, 34 C.F.R. 106.45(b)(10), including Title IX of the Education Amendments of 1972 and Fourteenth Amendment to the United States Constitution. Nixon-Smiley CISD has provided training to all Title IX personnel including the District's Administrators.  Policy and procedures of nondiscrimination on the the basis of sex are contained in annual training materials such as:

Board Policy (Title IX excerpts contained herein). 

HR Recruiting and Hiring Policy (excerpts contained herein).

Sexual Harassment of Students by Employees (excerpt contained herein).

Board policy:

A district shall not fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of any of the following protected characteristics:0)

1.Race, color, or national origin;

2.Sex;

3.Religion;

4.Age (applies to individuals who are 40 years of age or older);

5.Disability; or

6.Genetic information [see DAB].

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, Subch. H (genetic information)

Title VII proscribes employment practices that are overtly discriminatory (disparate treatment), as well as those that are fair in form but discriminatory in practice (disparate impact). Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)

Disparate Treatment
Disparate treatment (intentional discrimination) occurs when members of a protected group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants. 29 C.F.R. 1607.11
Disparate Impact
Disparate impact occurs when an employer uses a particular employment practice that causes a disparate (disproportionate) impact on a protected group and the employer fails to demonstrate that the challenged practice is job-related and consistent with business necessity. 42 U.S.C. 2000e-2(k)(1)(A); Labor Code 21.115, .122
Bankruptcy Discrimination
A district may not deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under federal bankruptcy laws. A district may not discriminate against a person with whom a bankrupt or debtor has been associated, solely because the bankrupt or debtor is or has been a debtor under federal bankruptcy laws; was insolvent before the commencement of a bankruptcy case or during the case but before the debtor was granted or denied a discharge; or has not paid a debt that is dischargeable in the bankruptcy case or that was discharged under the bankruptcy laws. 11 U.S.C. 525(a)
Job Qualification
A district may take employment actions based on religion, sex, national origin, or age in those certain instances where religion, sex, national origin, or age is a bona fide occupational qualification. 42 U.S.C. 2000e-2(e); 29 U.S.C. 623(f); Labor Code 21.119
Employment Postings
A district shall not print or publish any notice or advertisement relating to district employment that indicates any preference, limitation, specification, or discrimination based on race, color, religion, sex, disability, or national origin, unless the characteristic is a bona fide occupational qualification. 42 U.S.C. 2000e-3(b); Labor Code 21.059
Harassment of Employees
A district has an affirmative duty to maintain a working environment free of harassment on the basis of a protected characteristic. 42 U.S.C. 2000e et seq.; 29 C.F.R. 1606.8(a), 1604.11 [See DIA]
Retaliation
A district may not discriminate against any employee or applicant for employment because the employee or applicant has opposed any unlawful, discriminatory employment practices or participated in the investigation of any complaint related to an unlawful, discriminatory employment practice. 29 U.S.C. 623(d) (ADEA); 42 U.S.C. 2000e-3(a) (Title VII); 34 C.F.R. 100.7(e) (Title VI); 34 C.F.R. 110.34 (Age Act); 42 U.S.C. 12203 (ADA); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX); Labor Code 21.055 [See DIA]
Notices
A district shall post in conspicuous places upon its premises a notice setting forth the information the Equal Employment Opportunity Commission deems appropriate to effectuate the purposes of the anti-discrimination laws. 29 U.S.C. 627; 42 U.S.C. 2000e-10
Section 504 Notice
A district that employs 15 or more persons shall take appropriate steps to notify applicants and employees, including those with impaired vision or hearing, that it does not discriminate on the basis of disability.

The notice shall state:0.

1.That the district does not discriminate in employment in its programs and activities; and

2.The identity of the district’s 504 coordinator.

Methods of notification may include:0.

1.Posting of notices;

2.Publication in newspapers and magazines;

3.Placing notices in district publications; and

4.Distributing memoranda or other written communications.

If a district publishes or uses recruitment materials containing general information that it makes available to applicants or employees, it shall include in those materials a statement of its nondiscrimination policy.

34 C.F.R. 104.8

Age Discrimination
The prohibition against discrimination on the basis of age applies only to discrimination against an individual 40 years of age or older. Labor Code 21.101
Bona Fide Employee Benefit Plan
A district may take an employment action on the basis of age pursuant to a bona fide seniority system or a bona fide employee benefit plan. However, a bona fide employee benefit plan shall not excuse the failure to hire any individual and no such benefit plan shall require or permit the involuntary retirement of any individual because of age. 29 U.S.C. 623(f); Labor Code 21.102
Sex Discrimination Gender Stereotypes

A district may not evaluate employees by assuming or insisting that they match the stereotype associated with their group. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Pregnancy
The prohibition against discrimination on the basis of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. A district shall treat women affected by pregnancy, childbirth, or related medical conditions the same as other employees for all employment-related purposes, including receipt of benefits under fringe benefit programs. 42 U.S.C. 2000e(k); 29 C.F.R. 1604.10; Labor Code 21.106
Equal Pay
A district may not pay an employee at a rate less than the rate the district pays employees of the opposite sex for equal work on jobs the performance of which require equal skill, effort, or responsibility and which are performed under similar working conditions. This rule does not apply if the payment is pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any other factor other than sex. 29 U.S.C. 206(d) (Equal Pay Act); 34 C.F.R. 106.54 (Title IX)
Religious Discrimination
The prohibition against discrimination on the basis of religion includes all aspects of religious observances and practice, as well as religious belief, unless a district demonstrates that it is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship to the district’s business. “Undue hardship” means more than a de minimus (minimal) cost. 42 U.S.C. 2000e(j); 29 C.F.R. 1605.2; Labor Code 21.108

A district may not substantially burden an employee’s free exercise of religion, unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Civ. Prac. & Rem. Code 110.003

A person employed or maintained to obtain or aid in obtaining positions for public school employees may not directly or indirectly ask about, orally or in writing, the religion or religious affiliation of anyone applying for employment in a public school of this state. A violation of this provision is a Class B misdemeanor. A person who violates this provision is subject to civil penalties. Education Code 22.901

Disability Discrimination
A district may not discriminate against a qualified individual on the basis of disability in job application procedures, hiring, advancement, or discharge of employees, compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. 12112(a); 29 C.F.R. 1630.4(b); Labor Code 21.051

In addition, each district that receives assistance under the Individuals with Disabilities Education Act (IDEA) must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted by the IDEA. 34 C.F.R. 300.177(b)

Discrimination Based on Lack of Disability
The Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act do not provide a basis for a claim that an individual was subject to discrimination because of the individual’s lack of disability. 42 U.S.C. 12201(g); 29 C.F.R. 1630.4(b); Labor Code 21.005(c)
Definition of Disability
“Disability” means:0.

1.An actual disability: a physical or mental impairment [see definition, below] that substantially limits one or more of an individual’s major life activities;

2.A record of having such an impairment; or

3.Being regarded as having such an impairment.

An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

“Regarded as” Having an Impairment
An individual meets the requirement of being “regarded as” having an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
Transitory and Minor
The “regarded as” prong of the definition does not apply to impairments that are transitory or minor. A transitory impairment is one with an actual or expected duration of six months or less. The “transitory” exception does not apply to the “actual disability” or “record of disability” prongs of the definition.
Mitigating Measures
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies, low-vision devices, prosthetics, hearing aids, mobility devices, oxygen therapy, assistive technology, or learned behavioral or adaptive neurological modifications.

The ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses and contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error.

42 U.S.C. 12102(1), (3), (4); 29 C.F.R. 1630.2(g), (j)(1); Labor Code 21.002, .0021

Other Definitions Physical or Mental Impairment

“Physical or mental impairment” means: 0.

1.Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

2.Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. 1630.2(h)

Major Life Activities
“Major life activities” include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.“Major life activities” also include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within the body system.

42 U.S.C. 12102(2); 29 C.F.R. 1630.2(i); Labor Code 21.002

Qualified Individual

“Qualified individual” means an individual who:0.

1.Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and

2.With or without reasonable accommodation, can perform the essential functions of such position. Consideration shall be given to a district’s judgment as to what functions of a job are essential. A written job description prepared before advertising or interviewing applicants for the job is evidence of the job’s essential functions.

42 U.S.C. 12111(8); 29 C.F.R. 1630.2(m)

Reasonable Accommodations
A district is required, absent undue hardship, to make a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” or “record of disability” prongs. A district is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong. 42 U.S.C. 12112(b)(5); 29 C.F.R. 1630.2(o)(4), .9; 29 U.S.C. 794; 34 C.F.R. 104.11; Labor Code 21.128 [See DBB regarding medical examinations and inquiries under the Americans with Disabilities Act]“Reasonable accommodation” includes:0.

1.Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

2.Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. 12111(9); 29 C.F.R. 1630.2(o); 34 C.F.R. 104.12(b)

“Undue hardship” means an action requiring significant difficulty or expense when considered in light of the nature and cost of the accommodation needed, overall financial resources of the affected facility and the district, and other factors set out in law. 42 U.S.C. 12111(10); 29 C.F.R. 1630.2(p); 34 C.F.R. 104.12(c)

Discrimination Based on Relationship

A district shall not exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social, or other relationship or association. 42 U.S.C. 12112(b)(4); 29 C.F.R. 1630.8; 34 C.F.R. 104.11

Illegal Drugs and Alcohol
The term “qualified individual with a disability” does not include any employee or applicant who is currently engaging in the illegal use of drugs, when a district acts on the basis of such use.
Drug Testing
A district is not prohibited from conducting drug testing of employees and applicants for the illegal use of drugs or making employment decisions based on the results of such tests.

42 U.S.C. 12114(c), (d); Labor Code 21.002(6)(A) [See DHE]

Alcohol Use
The term “qualified individual with a disability” does not include an individual who is an alcoholic and whose current use of alcohol prevents the employee from performing the duties of his or her job or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others. 42 U.S.C. 12114(a); 29 U.S.C. 705(20)(C); 29 C.F.R. 1630.3(a); 28 C.F.R. 35.104; Labor Code 21.002(6)(A)
Qualification Standards
It is unlawful for a district to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the district, is shown to be job related for the position in question and is consistent with business necessity. 29 C.F.R. 1630.10(a)
Direct Threat to Health or Safety
As a qualification standard, a district may require that an individual not pose a direct threat to the health or safety of other individuals in the workplace. “Direct threat” means a significant risk to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation. 42 U.S.C. 12111(3); 29 C.F.R. 1630.2(r); Labor Code 21.002(6)(B)
Vision Standards and Tests
A district shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the district, is shown to be job-related for the position in question and consistent with business necessity. 42 U.S.C. 12113(c); 29 C.F.R. 1630.10(b); Labor Code 21.115(b)
Communicable Diseases
A district may refuse to assign or continue to assign an individual to a job involving food handling if the individual has an infectious or communicable disease that is transmitted to others through handling of food. 42 U.S.C. 12113(e); 29 U.S.C. 705(20)(D); 29 C.F.R. 1630.16(e); Labor Code 21.002(6)(B)
Service Animals
A district that is subject to the jurisdiction of Title I of the ADA (employment discrimination) or to section 504 of the Rehabilitation Act (employment discrimination) shall comply with the reasonable accommodation requirements of those laws with respect to service animals. [See Reasonable Accommodations, above]

A district that is not subject to either Title I or section 504 shall comply with Title II of the ADA (discrimination by public entity). An employer that is subject to Title II shall comply with 28 C.F.R. part 35, including the requirements relating to service animals at 28 C.F.R. 35.136 [see FBA].

28 C.F.R. 35.140

Military Service
A district shall not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of membership in a uniformed service, performance in a uniformed service, application for uniformed service, or obligation to a uniformed service. A district shall not take adverse employment action or discriminate against any person who takes action to enforce protections afforded by the Uniformed Services Employment and Re-employment Rights Act (USERRA). 38 U.S.C. 4311 [See also DECB]
Grievance Policies Section 504

A district that receives federal financial assistance and that employs 15 or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504 of the Rehabilitation Act. 34 C.F.R. 104.7(b), .11

Americans with Disabilities Act
A district that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by the ADA. 28 C.F.R. 35.107, .140
Title IX
A district that receives federal financial assistance shall adopt and publish grievance procedures providing for prompt and equitable resolution of employee complaints alleging any action prohibited by Title IX. 34 C.F.R. 106.8(b); North Haven Board of Education v. Bell, 456 U.S. 512 (1982)
Compliance Coordinator
A district shall designate at least one employee to coordinate its efforts to comply with Title IX, Section 504, the Age Act, and the ADA. The district shall notify all employees of the name, office address, and telephone number of the employee(s) so designated. 34 C.F.R. 104.7(b), .11; 28 C.F.R. 35.107, .140; 34 C.F.R. 106.8(b)
Student Loan Repayment

A district that issues a license may not take disciplinary action against a person based on the person’s default on a student loan or breach of a student loan repayment contract or scholarship contract including by:0.

1.Denying the person’s application for a license or license renewal;

2.Suspending the person’s license; or

3.Taking other disciplinary action against the person.

Occupations Code 56.001, .003

HR recruiting and Hiring policy

Unlawful Discrimination
Types of Discrimination Avoiding Discrimination Enforcement
Hiring Process To protect the district against unlawful discrimination charges, interviewers must understand what practices are against the law and what pre-employment questions to avoid. Too often employers become involved in lawsuits as a result of unlawful employment discrimination even though they did not intentionally violate the law.
Discrimination Laws All persons involved in the employment process should be aware of the federal laws prohibiting discrimination. The following list identifies federal laws and the types of discrimination that are prohibited.

FEDERAL LAWS
Federal Law Common Name Category or Personal Characteristic
Title VII of the Civil Rights Act of 1964
Title VI and Title VII Race; color; religion; sex, including sexual orientation and gender identity; pregnancy; and national origin
Age Discrimination in Employment Act
ADEA Age (40 or older)
Title IX of the Education Amendments of 1972
Title IX Sex, including sexual harassment in educational programs or activities (receiving federal financial assistance)
Rehabilitation Act of 1973 Section 504 Qualified individuals with disabilities
Americans with Disabilities Act ADA Qualified individuals with physical or mental impairments, past records of impairment, or who are perceived as having disabilities
Equal Pay Act EPA Forbids different wages for men and women for equal work

FEDERAL LAWS (CONTINUED)
Federal Law Common Name Category or Personal Characteristic
Uniformed Services Employment and Reemployment Rights Act
USERRA Military obligation and status
Pregnancy Discrimination Act Same Pregnancy, childbirth, or related medical conditions
Genetic Information Nondiscrimination Act
GINA Genetic information

The Equal Employment Opportunity Commission (EEOC) reports that the selection process is the cause of most legitimate charges of unlawful discrimination. Therefore, any person who interviews job applicants must be aware of and avoid areas of questioning which can leave school districts open to costly and time-consuming charges of unlawful discrimination.
Types of Discrimination First it is important to understand and accept the fact that any selection process involves rational discrimination. The interviewer must know the difference between rational or lawful discrimination and irrational or unlawful discrimination. Rational discrimination is based on factors directly related to successful performance of the job. Unlawful or irrational discrimination is based on factors unrelated to successful performance of the job.

There are two primary types of unlawful discrimination. One is discrimination by specific intent, where employment practices are knowingly and deliberately designed to exclude a protected class of individuals. The second is discrimination by adverse impact, whereby employment practices result in unequal treatment of one or more of the protected groups, regardless of intent.

An example of a hiring practice the courts have found to have adverse impact is questioning applicants about their arrest records. This practice has resulted in a disproportionate number of racial minorities being screened out of the selection process. Statistically, racial minorities are arrested at a higher or disproportionate rate than nonminorities. Furthermore, arrest records are independent of conviction rates, indicating that many innocent people are arrested.

The only exception that can outweigh individual rights protected under federal law is known as a bona fide occupational qualification (BFOQ). A BFOQ is a qualification necessary for successful
HR Library Recruiting and Hiring Unlawful Discrimination
© 6/5/2020 Texas Association of School Boards, Inc. All rights reserved.
performance of a job. For example, a BFOQ for a school would be restricting applications for a locker room attendant to the same gender as the students serviced.
Avoiding Discrimination To avoid discrimination claims, a district should follow these three guidelines to conduct lawful and effective interviews:  Ask only job-related questions. Eliminate all areas of personal inquiry not related to prospective job performance.  Be consistent with all applicants interviewed. Ensure that all applicants are asked the same questions.  Document all phases of the hiring process. Retain all documents considered including applications, interview questions, and rating forms. Interviewers need to be aware that when they ask unacceptable questions, they are increasing the risk of complaints of unlawful, discrimination. The HR Library document EEOC Preemployment Inquiry Guidelines illustrates acceptable and unacceptable inquiries under EEOC. This guide should be provided to interviewers to assist them in avoiding inappropriate inquiries.
Enforcement Discrimination complaints may be filed with the Civil Rights Division of the Texas Workforce Commission (http://www.twc.state.tx.us) or the EEOC (http://www.eeoc.gov). Both of these agencies provide information on discrimination laws and complaint processes. 

Sexual Harassment of Students by Employees

Sexual Harassment of Students by Employees
Texas Law Federal Law Preventive Action Investigating Sexual Harassment Charges Reporting Sexual Harassment or Abuse
Introduction Employee-to-student sexual harassment is unlawful discrimination on the basis of sex and is prohibited by both state and federal law.* Sexual harassment of students includes any welcome or unwelcome sexual advances, requests for sexual favors, and other oral, written, physical, or visual conduct of a sexual nature. Other prohibited conduct includes:  Engaging in sexually-oriented conversations for the purpose of personal sexual gratification  Telephoning students at home or elsewhere for inappropriate social relationships  Engaging in physical contact that reasonably would be construed as sexual in nature  Enticing or threatening students to engage in sexual behavior in exchange for grades or other school-related benefit Sexual abuse of a student by an employee is a form of sexual harassment. Sexual abuse may include fondling, sexual assault, or sexual intercourse. Romantic relationships between district employees and students are prohibited, even if they are consensual.
The prohibition against sexual harassment does not extend to legitimate nonsexual touching or other nonsexual conduct. For example, an athletic coach’s hugging a student who made a goal or a kindergarten teacher’s consoling hug for a child with a skinned knee will not be considered sexual harassment.
Texas Law Criminal law prohibits sexual relationships between adults and minors in any context, even if the relationships are consensual. In the education context, criminal law also prohibits sexual relationships between school employees and students of any age.
* This article addresses harassment of employees on the basis of sex. The same principles extend to harassment of employees on the basis of other protected characteristics such as race, age, religion, or disability, although claims relating to other types of discrimination may arise under different laws.
A district employee commits a criminal offense if the employee has sexual contact with a student, including a student who is 18 years of age or older, and one of the following conditions exists (Tex. Penal Code §21.12):  Any district employee: the student is enrolled in the school where the employee works;  A school employee who holds a position described by Texas Education Code section 21.003(a) or (b) regardless whether that person holds the appropriate certificate, permit, license or credential: the student is enrolled in any public or private primary or secondary school, other than a school at which the employee works.  A school employee who holds a position described by Texas Education Code section 21.003(a) or (b) regardless whether that person holds the appropriate certificate, permit, license or credential: the student is enrolled in any public or private school and the student participates in an educational activity sponsored for students by any public or private school. Again, these prohibitions apply even to consensual relationships among consenting adults. In addition to potential criminal penalties, an educator who solicits or engages in sexual conduct or a romantic relationship with a student or minor is subject to disciplinary action by the State Board for Education Certification (SBEC). 19 Tex. Admin. Code §249.15.
Federal Law Sexual harassment of students is prohibited by Title IX of the Education Amendments of 1972 and the Fourteenth Amendment to the United States Constitution. Title IX prohibits discrimination on the basis of sex in educational programs. 20 U.S.C. § 1681; 34 CFR § 106.11. This law has been interpreted to prohibit sexual harassment of students by school employees. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). In addition, an employee who engages in a sexual relationship with a student deprives the student of his or her constitutional right to bodily integrity. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994). Consequently, the employee can be held liable for the constitutional injury via Title 42 U.S.C. § 1983. As outlined below, the district, individual supervisors, and the harassing employee may be held liable.
A district that fails to address sexual harassment of students risks liability under both Title IX and Section 1983. A district may be liable under Title IX if a district official with authority to institute corrective measures on the district’s behalf had actual notice of, and was deliberately indifferent to, an employee’s misconduct. A district may be liable under Section 1983 if the student demonstrates:  A policy, custom, or practice of misconduct on the part of the district, or that the district’s policymaking officials demonstrated deliberate indifference by failing to act to prevent known inappropriate conduct; and  The student was injured by the district’s ineffective handling of the misconduct.
An administrator who fails to address the abuse of a student by a subordinate risks liability under Section 1983. An administrator may be liable if: The administrator was aware of facts or a pattern of inappropriate sexual behavior by a subordinate that pointed clearly to the conclusion that the subordinate was sexually abusing a student; The administrator failed to take action obviously necessary to stop the abuse, thereby showing deliberate indifference to the constitutional rights of the student; and The administrator’s failure to act caused constitutional injury to the student.
Preventive Action Districts have a responsibility to take steps to eliminate sexual harassment of students, including creating an environment that encourages students who believe they have been subjected to sexual harassment to come forward. The district’s exposure to liability can be reduced by taking the following steps:  Establish a written policy prohibiting sexual harassment of students. The policy should include a description of the types of conduct that constitute sexual harassment of students and an effective reporting procedure. (See Policy FFH (LOCAL))  Clearly and regularly communicate the policy, including the sexual harassment grievance procedure, to students and parents.  Train administrators and employees:  Train administrators to recognize, investigate, and resolve sexual harassment claims.  Train employees to understand appropriate and inappropriate interaction with students.  Train employees to recognize and report sexual harassment and any incidents that a student might misinterpret as sexual harassment.  Respond promptly to all complaints and take appropriate investigatory and disciplinary action.  Protect the rights of complainants and witnesses and take steps calculated to prevent retaliation.  Maintain documentation of complaints, investigations, and disciplinary action related to allegations of sexual harassment.
Investigating Sexual Harassment Charges All allegations of sexual harassment should be promptly investigated. TASB Legal Services offers the following recommendations as starting points in the development of a local process to investigate charges of sexual harassment between employees and students.
Designate an investigator. A designated investigator, such as a principal or Title IX coordinator, should work closely with the district’s attorney to analyze and investigate sexual harassment complaints. The investigator is likely to be a key witness if legal action results, so it is important that he or she possess strong interpersonal skills, convey sensitivity, and be articulate, detailed, and thorough in the questioning of witnesses.  Take all complaints seriously. Follow up immediately on all complaints, even anonymous tips. Do not expect or require a student to use legal terms such as “harassment” or “abuse.” It is the district’s responsibility to recognize when a student is voicing a complaint.  Make the complainant feel comfortable. Thank the complainant for coming forward and assure him or her that the district prohibits retaliation against anyone who participates in a complaint or investigation. Provide the complainant with a copy of the district’s sexual harassment policy and let him or her know that the district does not tolerate such conduct. Advise the complainant regarding what steps to take if he or she experiences any further sexual harassment or retaliation. Explain that the district will maintain confidentiality to the extent possible and request that the complainant not discuss the matter with other students or district employees so that the district may conduct an effective investigation.  Document the complaint. Document the time, date, and details of the complaint. The emphasis at this point is on documenting that a complaint was made. A full interview of the student should be postponed until the appropriate parties are notified and a determination is made as to whether to involve law enforcement. As discussed below, the district should involve law enforcement before interviewing a student if the allegations rise to the level of criminal conduct.  Notify appropriate persons. Notify the district’s Title IX coordinator listed at FB (LOCAL). If the allegations rise to the level of conduct prohibited by the district’s policy, notify the student’s parents. See FFH (LOCAL). If the allegations rise to the level of child abuse, notify Child Protective Services (CPS). See FFG (LEGAL). School districts must provide notification to a parent or guardian of a student with whom an educator allegedly engaged in abuse or other committed an unlawful action or was involved in a romantic relationship with or solicited or engaged in sexual contact as soon as feasible after the district becomes aware that the alleged misconduct may have occurred. See FFF (LOCAL).  Take appropriate interim measures. Take any action necessary to protect the student from the alleged harasser. In some cases, this may include taking steps to ensure that the student does not have contact with the alleged harasser. It may also be appropriate to suspend the alleged harasser pending the outcome of the investigation.  Ensure that an investigation is conducted.  Investigations involving allegations of criminal conduct. Allegations of illegal activity should be investigated primarily by law enforcement and, if appropriate, CPS. Involve law enforcement or CPS immediately if allegations involve criminal conduct, even if that conduct is not subject to the mandatory child abuse reporting
requirements. An investigation by law enforcement or CPS will not absolve the district of its responsibility to conduct an investigation into the matter, however. Coordinate efforts with that of law enforcement and CPS to ensure that the district does not impede the criminal investigation but that it gathers the information necessary to determine if steps should be taken to address past harassment and to lessen the probability of future incidents.  Investigations that do not involve allegations of criminal conduct. To the extent the district is going to conduct its own investigation: • Interview the complainant. Interview the student to obtain specific names, places, and dates. If appropriate, taking into consideration the student’s age and emotional state, ask the student to reduce his or her concerns to writing. If the student is unwilling or unable to do so, prepare a summary of interview notes and review the summary with the student for accuracy. At any point in the process, if the investigation indicates criminal conduct may have occurred, the district should suspend its investigation and contact CPS and law enforcement. • Interview the employee and any witnesses identified during the investigation. In each case, solicit a written statement or, if appropriate, reduce interview notes to writing and ask the individual to read, edit, and sign the notes. Provide each individual with a copy of the district’s sexual harassment policy and advise the individual regarding the prohibition against retaliation. Instruct each individual to maintain confidentiality. • Gather physical evidence. Review personnel files, student information, timecards, email, and other evidence indicated by the investigation.  Take remedial action. Determine whether alleged sexual harassment or other violation of district policies occurred.  No corroboration. In many cases, the investigator may be unable to determine whether sexual harassment occurred. The investigator should explain the outcome to the complainant, assure him or her that the district takes allegations of sexual harassment seriously, reiterate the district’s policy against retaliation, and encourage the complainant to notify the district if he or she has any further concerns. The investigator should also explain the results of the investigation to the alleged harasser and remind him or her of the policy against sexual harassment and retaliation. In some cases, follow up training regarding appropriate employee-student boundaries may be indicated.  Allegations corroborated. If the investigator determines that sexual harassment or other violation of policy occurred, the district should take appropriate remedial action, including disciplinary action or termination of the employee and any other appropriate actions reasonably calculated to end the sexual harassment. Documents gathered or created in the course of sexual harassment investigations, including student complaints and witness statements that include identifying information about students, become part of the students’ education records. As such, they are subject to the confidentiality requirements of the Federal Educational Rights and Privacy Act (See Policy FL).
Reporting Sexual Harassment or Abuse The principal of a school district, district of innovation, or open enrollment charter school is required to notify the superintendent or director of an educator’s misconduct following an alleged incident of misconduct. The report must be made not later than the seventh business day of the termination or resignation following an alleged incident of misconduct or when the principal knew about the educator’s criminal record.

Superintendents, directors of a school district, district of innovation, open-enrollment charter school, regional education service center, or shared service arrangement are required to report the misconduct or criminal history of a certified applicant, certified employee, or individual applying for certification or permit to SBEC. The dismissal or resignation of an educator must be reported whenever there is evidence the employee was involved in certain conduct (see Termination of Contract Employees, Notice to Texas Education Agency.).
In addition, a superintendent or director of a district of innovation, regional service center, shared service arrangements, school district, and open enrollment charter school is required to complete an investigation based on evidence that an educator may have engaged in misconduct involving abuse or other unlawful acts with a student or minor. If the employee resigns under these circumstances, the superintendent should inform the employee of the legal obligation to complete an investigation and to make a report to SBEC.

Eichelbaum Wardell Hansen Powell & Muñoz P.C.’s “New Title IX Rules and Regulations” series. Materials from this series in compliance with Section 106.45(b)(10)(i)(D) of the regulations can be found here: http://www.edlaw.com/materials/new-title-ix-rules-and-regulations-materials.aspx.