Legal and Ethical Issues Title IX and Responsible Employee by Jennifer Roberts https://padlet.com/jroberts372/88tdl3wk6qg6ucrp Module 7: Legal and Ethics "Title IX and Responsible Employee" en-us 2022-12-05 15:32:02 UTC 2022-12-07 00:59:28 UTC hello@padlet.com Slide #1: Professional Perspective/Audience/Topic jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2409860052 Student Affairs Perspective:
As a student affairs professional working within academic and student support services, students are viewed through the lens of understanding based on the knowledge that the environment shapes human growth and development. 

The development of students will always be a priority to help teach conflict resolution and advocate for the rights of the students in and outside of class. 

Audience:
The intended audience of this legal guide is fellow student affairs professionals and graduate students studying to enter the profession.  As an employee of higher education institutions, student affairs educators face legal liabilities and are responsible for understanding institutional policies and laws at the county, state, and federal levels.

Topic:
Title IX of the Education Amendments of 1972 (Title IX, 1972) and the expanded classification of a "responsible employee" now mandates the required reporting of sexual misconduct without the consent of the victim.  If a student affairs professional does not report, they will be terminated and face criminal action.

Reasons:
Student affairs professionals who work in student services need to understand the various types of laws and institutional policies concerning Title IX  and "responsible employee" due to interacting with students daily.  

(A perspective on student affairs, 1987; Title IX, 1972). ]]> 2022-12-05 23:06:52 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2409860052 Slide #2: Governing Agency jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2409860516 Federal Agency:
The Office for Civil Rights (OCR) at the U. S. Department of Health and Human Services has jurisdiction over (Title IX, 1972) to ensure institutions that receive federal financial support comply with the law.

State Agency:
Texas Higher Education Coordinating Board (THECB) is the state's highest authority of public education and was created in 1965.  THECB works in partnership with the legislature, businesses, and other stakeholders to ensure the state’s higher education goals and educational strategic plans are aligned with the state’s economic needs.  THECB administers programs and funds for financial aid and other grants as directed by the Texas Legislature.   

Governing Bodies:
Institutions of higher learning are required to comply with the laws and policies of both the federal and state level. The OCR enforces federal civil rights laws that prohibit discrimination. Whereas, THECB's role is to regulate compliance with the laws that fall under its authority. For example, (Title IX, 1972), requires that "responsible employees" are required to report sexual misconduct to the Title IX Coordinators on campus.  The State of Texas then added onto (Title IX, 1972) and if a "responsible employee" does not report, they will not only be terminated, but they can also face criminal charges.  

(Title IX, 1972; Rights (OCR), 2019; Board Commissioner, n.d.)  ]]> 2022-12-05 23:07:40 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2409860516 Slide 3: Sources of Law jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2409976493 Federal Law is the constitution:
Title IX of the Education Amendments of 1972  Federal Regulation
  • Any public college or university that receives federal funding must protect all students, faculty, and staff from sex-based discrimination.  
  • Schools are required to have a Title IX Coordinator to ensure compliance and all "responsible employees" are required to report all relevant information that is known to the Title IX Coordinator whether the alleged victim agrees to it or not. 
  • No individual making a report or complaint may be intimidated, threatened, coerced, or discriminated against.  

Statute (formal written law passed by the Texas Legislature and becomes a state law): 
(Tex. SB 212, 2020)
  • Texas State Law (passed in the 2019 legislative session) that requires all employees (both faculty and staff) at a public or private post-secondary institution to promptly report any knowledge of any incidents of sexual assault, sexual harassment, dating violence, or stalking "committed by or against a person who was a student enrolled at or an employee of the institution at the time of the incident". 
  • Reports are required to be made to the campus Title IX Coordinator.
  • Employees failing to report incidents of sexual assault can be charged with a Class B Misdemeanor and terminated. If the person intentionally tries to cover up the incident, they could also face a Class A misdemeanor charge. Furthermore, the university itself could also face disciplinary action for a failure to comply with the bill’s requirements and could incur as much as a $2 million penalty.

(Title IX, 1972; Policy/Title IX, n.d.; Nondiscrimination on the basis of sex in education programs or activities receiving federal financial assistance, 2020; Tex. SB 212, 2020)
]]> 2022-12-06 01:33:19 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2409976493 Slide 4: Statute and Administrative Law jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2410020355 Texas Statute: (Tex. Educ. Code § 51.255)
Under (Tex. Educ. Code § 51.252) an employee of a postsecondary institution is required to make a report to the Title IX Coordinator if the employee witnesses or receives information the employee reasonably believes constitutes sexual misconduct.
  • According to  (Tex. Educ. Code § 51.255), if the employee knowingly fails to make a report or if the employee makes a false report with the intent to harm or deceive will face termination of employment. 
  • This statute goes a step further than the Title IX of the Education Amendments of 1972, and not only is a "responsible employee" required to report the sexual misconduct to the Title IX Coordinator but will also face termination and charged with a Class B misdemeanor. 

Texas Administrative Law: (Tex. Admin. Code § 3.14)
Each postsecondary educational institution will designate responsible and confidential employees. 
  • At least one employee will act as a responsible employee who is required to report to a Title IX Coordinator without the consent of the alleged victim.
  • At least one employee will act as a confidential employee and is only able to report with the consent of the alleged victim.
  • All enrolled students will be informed of the differences between a responsible employee and a confidential employee.

(Tex. Educ. Code § 51.252; Tex. Educ. Code § 51.255; Title IX, 1972; Tex. Admin. Code § 3.14 )
]]> 2022-12-06 02:19:30 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2410020355 Slide #5: Case Law jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2410146491 Two Supreme Court Cases helped establish liability in a private right of action to seek damages from an educational institution. 
  • Gebser v. Lago Vista Independent School District, 1998, (Case Law) 
    • Although the plaintiff lost this case and then the appeal, the Supreme Court and lower courts have ruled damages could not be recovered unless an appropriate person such as an official of the school district, could institute corrective measures on the district's behalf had actual notice of the harassment and was deliberately indifferent to the information. who had actual knowledge of discrimination 

  • Davis v. Monroe County Board of Education, 1999, (Case Law)
    • Court ruled if the person committing the harassment is under the school's disciplinary authority, federal funding may be liable for its deliberate indifference to the harassment.
    • School Board can be held liable for student-on-student harassment.
    • In the creation of (Title IX, 1972), Congress attached to its school funds obligating all recipient schools to comply or face legal action. 
    • To not be sued, school districts began to publicize an effective policy and grievance procedures for sexual harassment claims. 

(Gebser v. Lago Vista Independent School District, 1998; Davis v. Monroe County Board of Education, 1999; Title IX, 1972; Gebser v. Lago Vista Independent School District., 524 U.S. 274 (1998), 2021; Davis v. Monroe County BD of ED., 2021)
]]> 2022-12-06 04:39:07 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2410146491 Slide #6: Federal Regulations jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2410164801
Federal Regulation:  34 CFR § 106.30
https://www.law.cornell.edu/cfr/text/34/106.30
  • "Notice" basically means reported to Title IX Coordinator.
  • Higher education employees including vocational colleges that are receiving federal financial assistance are required to respond promptly if alleged sexual harassment occurred under an education program or activity in the United States. 
  • A reasonable person would determine unwelcome conduct to be so severe and pervasive that it denies a person/alleged victim equal access to an educational program.
  • Regulation defines "sexual harassment" as any of the following:  sexual assault, dating violence, domestic violence, and stalking.
  • No longer is it acceptable to not report sexual misconduct or simply tell the alleged victim how to report the sexual harassment. 
  • Title IX Coordinator is required to discuss supportive measures and what they entail.   

(34 CFR § 106.30 - Definitions,,n.d.; 34 CFR § 106.30)


]]> 2022-12-06 05:00:53 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2410164801 Slide # 7: Local Policy jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411263482 Administrative Law: Brazosport College Board Policy Manual  Brazosport College provides a "Legal Framework" and the "Local Policy" that:
  • Relates the term "mandatory employee reporting" to every employee of Brazosport College who, in the scope of their employment, observes and receives information regarding an incident of sexual misconduct and is required to report to the Title IX Coordinator.
  • Employees with confidential obligations are defined and are only required to report the type of incident but no other information. 
  • Methods of reporting are via email, telephone, or the College District's website portal. 
  • Employees who fail to make a mandatory report to the Title IX Coordinator are subject to termination.
  • Board policy lists two employees as Title IX Coordinator and Deputy Title IX Coordinator.
(Policy code DIAA- Freedom from discrimination, harassment, and retaliation: Sex and sexual violence- Brazosport College Board Policy Manual, 2022)
]]> 2022-12-06 20:36:46 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411263482 Slide # 8: Risk Management Strategies jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411338612 Mitigating Risk: In the words of Benjamin Franklin, "If you fail to plan, you are planning to fail."

Under (Tex. Educ. Code § 51.252), "responsible employees" under Title IX of the Education Amendments of 1972 are legally responsible to report sexual misconduct and can be charged with a misdemeanor under the law and termination of employment if they do not report.
 
Risk management strategies allow employees of higher education to identify, access, treat, and monitor potential risks for the institution and themselves.  By creating a more "risk-aware" culture on campus,  managing risk is embedded into the institution's culture, ensuring policies, laws, and regulations are known and applied appropriately.

  •  Involve stakeholders in the risk management process, including identifying, accessing, and treating the risk.

  • Conduct risk profiling and disruption workshops throughout the campus more than once a year to identify and review potential threats.

  • Integrate strategic planning and risk planning.

(Tex. Educ. Code § 51.252; Title IX, 1972;  Higher Education Risk Management/The Change Leader, n.d.)

]]> 2022-12-06 22:07:51 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411338612 Slide #9: Ethical Principle jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411378123 The Council for the Advancement of Standards in Higher Education (CAS) has set ethical standards for decades for professionals in over 35 active professional associations. 

As "responsible employees", student affairs professionals must follow the law and report sexual misconduct allegations; otherwise, the alleged perpetrator could continue and hurt more people if not reported to the appropriate person.

  • Non-malfeasance is an ethical principle that dictates student affairs professionals will do no harm and will create environments that are educational and supportive of the growth and development of the whole person. Deciding guilt or innocence or if an investigation is necessary is not the job of the "responsible employee", so reporting the incident to the Title IX Coordinator to begin the investigation is creating a supportive and inclusive environment even though consent might not be given.   
  • Fidelity is another ethical principle that dictates the need to be faithful to an obligation, trust, or duty.  Student affairs professionals who are also "responsible employees" must honor commitments made within the guidelines of established policies and procedures and will demonstrate loyalty and commitment to the institution that employs them.  As a "responsible employee" under federal and state laws, loyalty to the university/employer should guide decisions. 

(CAS ethics/Council for the Advancement of Standards in Higher Education, n.d.)
]]> 2022-12-06 23:09:58 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411378123 Slide #10: Personal Connection jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411390470 As someone who has taught teenagers and now college students my entire adult life, students often need and want to connect and talk to adults or mentors about personal and confidential information.  Throughout my life, without knowing it, the ethical principle of affiliation which is promoting connected relationships and fostering community has always been the reason I was drawn to the life of an educator.  Title IX of the Education Amendments of 1972 and now the new provisions of "responsible employees" and potential termination of employment are needed to ensure all educators do what is right by the student even if the student might feel differently. 

(Title IX, 1972; CAS ethics/Council for the Advancement of Standards in Higher Education, n.d.)




]]> 2022-12-06 23:30:59 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411390470 Slide # 11: Recommendations jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411400065 Student affairs professionals and (Title IX, 1972) compliance: 

  • Having a deep understanding of federal and state laws, regulations, and policies is essential to ensure safety for students, co-workers, society, and the institution of higher education. 

  • Continuous and ongoing communication via workshops, orientations, first-year seminar classes, academic advising, in-class discussions, and outside-of-class activities with students and professionals in higher education on the topic of sexual misconduct and the reason for having "responsible employees" to keep everyone accountable, safe, and aware will alleviate many issues. 

  • Ongoing active risk management strategies need to be made a priority to be able to identify, access and mitigate any issues with compliance.  

  • Watching a video once a year over sexual misconduct and required reporting or receiving board policy is not enough professional development for college employees. 

  • Consulting with other student affairs professionals on campus and being a member of educators or professional associations mitigates the potential risk of non-compliance.

  • Practicing ethical decision-making strategies and risk-management strategies are a couple of ways to bring attention to the risk of sexual misconduct issues and the importance of following the laws, policies, and regulations. 

]]> 2022-12-06 23:47:03 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411400065 Slide # 12: References jroberts372 https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411438484 2022-12-07 00:33:57 UTC https://padlet.com/jroberts372/88tdl3wk6qg6ucrp/wish/2411438484