Presented by:
Gloria Williams, Staff Attorney
Tennessee Department of Education

Which Civil Rights Statutes Apply to Local Education Agencies?
 Title VI of the Civil Rights Act of 1964
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Title IX of the Education Amendments of 1973
§
504 of the Rehabilitation Act of 1973
 The Age Discrimination Act of 1975
 Title II of the Americans with Disabilities Act of 1990

State/Federal Obligations
Enforced by TOCR

TITLE VI OF THE CIVIL RIGHTS ACT OF 1964,
42 USC
§
2000d
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Title VI requires acts of intentional discrimination against a Title
VI covered class.
In the landmark case Regents of the University of California v. Bakke the
Court stated “in view of the clear legislative intent, Title VI must be held to proscribe only those…classifications that would violate the Equal
Protection Clause or the Fifth Amendment."

The Equal Protection Clause of the V and XIV Amendment prohibit intentional discrimination against a “discrete and insular minority
 Discrete and insular minorities are generally those who when a classification is made based on their minority status a suspicion of discrimination exists.
 The US Supreme Court has held that:
 “Traditional indicia of suspectness occurs where the class is subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the political process.” majoritarian

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Persons of Descent or Origin from one of the several African nations;
Persons of Descent or Origin from Mexico, or other Latin or Hispanic nations;
Persons of Descent or Origin from Japan, China, Korea or other country or nation of Asia;
Person classified as Pilipino, Vietnamese, Indian, or other Southeast Asian descent or origin;
Persons classified as Iraqi, Kurdish, Iranian, or another race descending from one of the Arab nations;
Native or Indigenous Americans;
Jews have been declared a discrete and insular minority for purposes of Title VI;
And any other group who has historically suffered discriminatory practices due national origin.
to their race, color, or

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Has the Complainant established that he/she is a member of the protected class of persons under Title VI?
Has the Complainant alleged that differential treatment occurred because of his race, national origin, or color?
Was the Complainant otherwise qualified and eligible?

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Can Recipient articulate a legitimate nondiscriminatory reason for the challenged action?
If so was the reason pre-textual?
 Pre-textual: When the reason for the action the goal of the program or activity does not relate to
Was there a more narrow way of accomplishing the goal without violating the rights of the Complainant?
 Applies only to disparate impact questions and not treatment

LEA’s have a duty to students, faculty or any other employee protected under Title VI to take action when a their civil rights have been violated even if the offender is a student
Failure to act when students behave in manners that violate the civil rights of other students, faculty or other employee of an LEA, could result in perceived complacency or support for the discriminatory practice.

 A high school teacher who wore blackface at a student-faculty basketball game resigned, stating "it was poor judgment and will never happen again”. Photographs from the High School game on March 25 showed the teacher wearing an exaggerated, Afro-style wig with brownish makeup covering his face and arms. Another student was also pictured wearing brown makeup on his face and arms. The teacher had previously been accused of making sexually inappropriate comments to female student.
 Prior to the resignation, the school had offered to renew his contract for the fall, contingent upon his being suspended without pay and being barred from school property and events for the rest of the current academic year.

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

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A complainant must show s/he was “subjected to sexually hostile environment; quid pro quo (something for something) sexual harassment or a
That s/he provided notice of the harassment or environment to an appropriate person who was at minimum an official of the educational entity with authority to take corrective action or put an end to the discrimination;
 What this means is that you must notify someone within the LEA who has the power to end the discrimination before an investigation can be commenced with this office
 This is very different than Title VI of the CRA
And the [LEA] response to the harassment amounted to deliberate indifference. Gebser v. Lago Vista Indep. School
District, 524 US 274, 289-91 (1998).
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An official decision by the recipient not to remedy the violation.
The LEA Response is what is important here. If a Principal is informed of harassment and deliberately does nothing, or what is done is insufficient to end the harassment, then that has established the notification requirement. Our office will evaluate what the LEA does once it is informed of the harassment to determine the Deliberate Indifference standard.

 LEA’s are not required to grant preferential or disparate treatment to the members of one gender on account of a gender imbalance that exists in the federally funded program or activity, unless the amount of that gender in the program or activity is disproportional to the amount of that gender in the community, or within the school as applicable.

 Title IX does not limit a school’s ability to maintain separate sports for women and men
 However, it does require equal treatment, financial support, and facilities for the male and female teams
 If there is a sport that has traditionally been limited to male students and there is no female team of the same sport then schools are required to allow the female students to try-out except as to contact sports.
 However, if a school allows a female student to participate in a male contact sport the school may not discriminate against her once on the team. Mercer v. Duke University

Annie and Barbie, both female cheerleaders, went into the stands to lead a wave. Annie is the cheer captain. As they finish and begin to return to the sidelines, Annie lifts up her own skirt and with her other hand she lifts the skirt of Barbie so as to show her briefs to the young men sitting their in the crowd. The young men hoot and holler and Barbie is embarrassed. The Monday following the football game Barbie reports the incident to the cheerleading sponsor and she tells her she’ll take care of it. The next game, Annie, does not select Barbie to go up into the stands. Barbie observes Cookie go into the stands to lead the wave along with Annie. As they leave the stands Barbie observes Annie lift her own skirt and
Cookie’s skirt in the same manner which she had done to her the week before. The very next week Barbie observes Annie enter the stands with
Dora and she lifts the skirt of Dora as well. Barbie approaches the cheerleading sponsor again and informs her of what she saw. She also inquires as to why she is no longer being picked to enter the stands. The coach informed Barbie that she should speak with Annie regarding why she is no longer being picked to enter the stands. So Barbie approaches Annie about this issue and Annie informs her that she hasn’t been picked because she is a little sensitive and complains to the sponsor too much. Barbie was very upset. She informed her parents and they filed a grievance with the principal. The parents of Barbie continuously called the school and they were told that the school was taking care of it. Ultimately, the season ended and it was time for cheer tryouts. Barbie tried out again for the cheer team and she wasn’t selected. Annie, Cookie, and Dora all were selected again. Barbie was informed by the cheer sponsor she was not selected because she wasn’t a good fit for the team. Barbie’s parent contacts the Director of Schools and he states that he is well aware of the incident and says that schools cannot supervise the students at all times of day. He also informs them that he will not require the cheer team to accept a student that they did not feel was good for the team. However, he did state that he would admonish Annie to no longer lift the skirts of the girls as they pass the boys. The parents file a complaint with the TOCR. Has the
LEA violated Title IX?

The Age Discrimination Act, Title II of the Americans with Disabilities Act and
§
504 of the Rehabilitation
Act

Prohibits age discrimination in the provision of services by federally funded programs, NOT the employment practices of such programs

 Regulations enforcing the Age Discrimination Act do not apply to:
 An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body that:
 (i) Provides any benefits or assistance to persons based on age;
 (ii) Establishes criteria for participation in age-related terms; or
 (iii) Describes intended beneficiaries or target groups in age-related terms;
OR
Employment Practices

Unlawful Discrimination in
Employment Practices, based on Age, is governed by the
Age Discrimination in Employment Act

TOCR does not enforce the Age Discrimination Act as against
LEA’s other than State Schools
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TOCR will conduct a preliminary evaluation of any complaints received by the office and will forward all documents that fall under the definition of complaint established by the
TOCR CRIM.
All correspondence that is received that does not fall under the definition of complaint established by the TOCR CRIM shall be returned to the complainant along with contact information for USOCR and explanation that they should file their complaint with that office.

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LEAs are required by Federal Law to have an Age Discrimination Act
Coordinator;
To have grievance procedures;
And to provide notice to beneficiaries (students/parents) of their rights under the Age Discrimination Act.
LEA Board Attorneys and/or of Counsel should consult 34 C.F.R 110 for further information on statutory requirements. Please also feel free to contact
TOCR for technical support with the Age Disc. Act.

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State schools shall be obligated to implement the Age Discrimination Act compliance policy and/ or implementation plan established by TOCR for the Department of Education, unless the schools implement their own policies.
 Age Discrimination Act Policies and/or implementation plans established by State Schools must be annually submitted to the TOCR for review.
 Once reviewed TOCR will issue a letter of satisfaction to the State Schools if the policies and/or implementations plans are deemed satisfactory.
 If a plan or policy is deemed unsatisfactory, the State school shall be subject to the policy and/or implementation plan of the Tennessee Department of Education and its requirements for the given year.
Upon completion of the year the State school will have an opportunity to re-submit a policy and/or implementation plan for the new school year.

Title II of the Americans with Disabilities Act and §504 of the
Rehabilitation Act of 1973
 Title II:
 Prohibits a “public entity” from discriminating against a qualified individual with a disability, or excluding such an individual from participation in, or denying the individual the benefits of any of the entity's services, programs or activities.
 §504
 No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

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Title II applies to all State and Local Government activities
§ 504 applies only to those entities in receipt of federal funds

 One way a public entity may violate is by discriminating in the provision of services, activities or programs as opposed to a violation based on a failure to provide services.
 §504 differs in that the violation may occur where there is a failure to provide services for a child with a disability.

 LEA’s who in employ 50 or more employees must have:
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An ADA policy which is made available to all employees;
A designated employee responsible for implementing an ADA policy;
A Grievance Procedure which provides for prompt an equitable resolution of complaints alleging any action prohibited by the ADA; and
 The LEA must conduct a self –evaluation as defined under part 35.105.

 LEA’s who employ 15 or more employees must have:
 A 504 policy which is made available to all employees;
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A designated employee responsible for implementing the 504 policy;
A Grievance Procedure which provides for prompt an equitable resolution of complaints alleging any action prohibited by 504; and
 The LEA must conduct a self –evaluation as defined under the regulations

TOCR does not enforce Title II or §504 as against LEA’s other than State Schools
 TOCR will conduct a preliminary evaluation of any complaints received by the office and will forward all documents that fall under the definition of complaint established by the TOCR CRIM.
 All correspondence that is received that does not fall under the definition of complaint established by the TOCR CRIM shall be returned to the complainant along with contact information for USOCR and explanation that they should file their complaint with that office.

 State schools shall be obligated to implement the ADA/ §504 compliance policy and/ or implementation plan established by TOCR for the Department of Education, unless the schools implement their own policies.
 ADA/ §504 Policies and/or implementation plans established by State Schools must be annually submitted to the TOCR for review.
 Once reviewed TOCR will issue a letter of satisfaction to the State Schools if the policies and/or implementations plans are deemed satisfactory.
 If a plan or policy is deemed unsatisfactory, the State school shall be subject to the policy and/or implementation plan of the Tennessee
Department of Education and its requirements for the given year. Upon completion of the year the State school will have an opportunity to re-submit a policy and/or implementation plan for the new school year.
 State Schools Include:
 Alvin C. York Agricultural Institute
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Tennessee School for the Deaf
Tennessee School for the Blind
West Tennessee School for the Deaf

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Legal Evaluation
Investigation
Investigative Determinations
Letter of Findings
Request for Review
Post-Investigation Corrective Action Plan
Monitor Post-Investigation Corrective Action Plan

 Conduct a full investigation into the allegations
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Make sure you interview the Complainant and his/her parent(s) outside of the presence of the person who they alleged to behaved discriminatorily.
Make sure all interviews with the complainant and any witnesses are documented either by use of an audio or video recording machine, the presence of a typist who is required to take notes, or by any other method in which a clear record can be established.
 Take congruent and proportional action against the party who violated the rights if a finding is made that they had in fact behaved in an unlawful manner.
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Make sure you not only take action that is congruent and proportional to the offense, but also implement some type of policy to prevent the act in the future.
Additionally, if the act was committed in the presence of other students you should take some action that explains to the students that such behavior is inappropriate and will not be tolerated by the staff or students.