Title IX and Gender Equity

 

Federal Title IX of the Education Amendments of 1972 (“Title IX”), implemented at 34 C.F.R. § 106.31, subd. (a), provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives federal financial assistance. Title IX requires that schools take immediate and appropriate action to address any potential Title IX violations that are brought to its attention.

Sexual harassment includes, but is not limited to, unwelcome sexual advances, unwanted requests for sexual favors, or other unwanted verbal, visual, or physical conduct of a sexual nature made against another person of the same or opposite sex in the educational setting, under any of the following conditions: (Education Code 212.5; 5 CCR 4916)

 

  1. Submission to the conduct is explicitly or implicitly made a term or condition of a student’s academic status or progress.
  2. Submission to or rejection of the conduct by a student is used as the basis for academic decisions affecting the student.
  3. The conduct has the purpose or effect of having a negative impact on the student’s academic performance or of creating an intimidating, hostile, or offensive educational environment.
  4. Submission to or rejection of the conduct by the student is used as the basis for any decision affecting the student regarding benefits and services, honors, programs, or activities available at or through any school program or activity.

 

Any prohibited conduct that occurs off campus or outside of school-related or school-sponsored programs or activities will be regarded as sexual harassment in violation of school policy if it has a continuing effect on or creates a hostile school environment for the complainant or victim of the conduct.

For purposes of applying the complaint procedures specified in Title IX of the Education Amendments of 1972, sexual harassment is defined as any of the following forms of conduct that occurs in an education program or activity in which a school exercises substantial control over the context and respondent: (34 CFR 106.30, 106.44)

 

  1. A school employee conditioning the provision of a school, aid, benefit, or service on the student’s participation in unwelcome sexual conduct
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a student equal access to the school’s education program or activity
  3. Sexual assault, dating violence, domestic violence, or stalking as defined in 20 USC 1092 or 34 USC 12291

 

Title IX Coordinators

 

In the event of a complaint regarding gender equity or sexual harassment, or discrimination, including harassment, intimidation and bullying because of actual or perceived disability, sex, gender, gender identity, gender expression, nationality, race, ethnicity, color, ancestry, religion, sexual orientation, age, marital or parental status, or association with a person or group with one or more of these actual or perceived characteristics, contact the Title IX Compliance Coordinators:

 

For complaints against employees:

 

Andrew Yau
Director of Academic Support and Alumni Services
(408) 723-1839 ext: 5145
ayau@upatoday.com

 

For student against student complaints:

 

Samantha Hu
Restorative Practices Counselor
(408) 723-1839 ext: 5141
samhu@upatoday.com

 

Mailing address for both Title IX Coordinators: 2315 Canoas Garden Ave, San Jose, CA 95125

Filing a Title IX Complaint with UPA

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is also the alleged victim), in person, by mail, by telephone or by e-mail, using the contact information listed for UPA’s Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.  Such reports may be made at any time, including during non-business hours, by using the telephone number or e-mail address, or by mail to the office address, listed for the Title IX Coordinator.

Student complaints alleging a Title IX violation should be submitted in written form no later than six months from the date of the alleged incident, or six months from the date the complainant first obtained knowledge of the facts of the alleged incident.  If the complainant is unable to prepare the complaint in writing, administrative staff shall help the complainant to do so.  The time for filing may be extended up to 90 days by the Executive Director or the Executive Director’s designee, for good cause, upon written request by the complainant setting forth the reasons for the request for an extension of time to file a written complaint.  For complaints over six months, please report and UPA will determine the manner in which it will be processed. To qualify as a Title IX complaint, the complainant/victim must also be participating in or attempting to participate in the recipient’s education program or activity.  The length of time elapsed between an incident of alleged sexual harassment, and the filing of a formal complaint, may, in specific circumstances, prevent a recipient from collecting enough evidence to reach a determination, justifying a discretionary dismissal under Title IX.

UPA will process all formal complaints in accordance with Title IX and District Board Policy which includes the option of informal resolution for certain matters.  Under Title IX, a formal complaint means a document filed by a victim, or signed by the Title IX Coordinator, that alleges sexual harassment against a respondent and requests that the school district investigate the allegation of sexual harassment.  Complaints that do not rise to the level of a Title IX complaint will be processed in accordance with UPA School Policies.

All investigations will be conducted as confidentially as possible.  Upon receipt of any formal complaint, UPA will provide all known parties with adequate notice of UPA’s complaint process and the underlying allegations.  During the course of the investigation, UPA will provide the complainant and respondent (or “the parties”) with an equal opportunity present witnesses and evidence. UPA will not restrict the ability of the parties to discuss the allegations under investigation, and it will allow parties to utilize an advisor of their choice.  Prior to the conclusion of the investigation, the complainant and respondent will have the opportunity to inspect and respond to evidence directly related to the allegations in the complaint that was gathered during the course of the investigation.  Thereafter, and prior to any final decision being made, the parties will receive a copy of the investigation report that fairly summarizes relevant evidence, and they will have an opportunity to submit written, relevant questions to be asked of the other party.  Next, a determination regarding responsibility will be made and issued to both parties.  Under Title IX and UPA policy, the responding party is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the end of the complaint process. Any party not satisfied with the final determination will have the option to appeal the final determination.

Additionally, any complainant who is dissatisfied with UPA’s determination may file an appeal in writing with the California Department of Education within 30 calendar days of receiving UPA’s final written decision.  Complaints made by or on behalf of students may also be filed with the U.S. Department of Education, Office of Civil Rights within 180 calendar days of the date of the alleged discrimination, unless the time for filing is extended by the Office of Civil Rights for good cause shown under certain circumstances.

Definition of Discrimination and Harassment Based on Sex (Education Code Section 230)

Harassment and other discrimination on the basis of sex include, but are not limited to, the following practices:

a. On the basis of sex, exclusion of a person or persons from participation in, denial of the benefits of, or subjection to harassment or other discrimination in, any academic, extracurricular, research, occupational training, or other program or activity.
b. On the basis of sex, provision of different amounts or types of student financial aid, limitation of eligibility for student financial aid, or the application of different criteria to applicants for student financial aid or for participation in the provision of student financial aid by others. Nothing in this subdivision shall be construed to prohibit an educational institution from administering, or assisting in the administration of, scholarships, fellowships, or other forms of student financial aid, established pursuant to domestic or foreign wills, bequests, trusts, or similar legal instruments or by acts of a foreign government, which require that awards be made to members of a particular sex; provided, that the overall effect of the award of these sex-restricted scholarships, fellowships, and other forms of student financial aid does not discriminate on the basis of sex.
c. On the basis of sex, exclusion from participation in, or denial of equivalent opportunity in, athletic programs. For purposes of this subdivision, “equivalent” means equal or equal in effect.
d. An educational institution may be found to have effectively accommodated the interests and abilities in athletics of both sexes within the meaning of Section 4922 of Title 5 of the California Code of Regulations as that section exists on January 1, 2003, using any one of the following tests:
• (1) Whether interscholastic level participation opportunities for male and female pupils are provided in numbers substantially proportionate to their respective enrollments.
• (2) Where the members of one sex have been and are underrepresented among interscholastic athletes, whether the school district can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interest and abilities of the members of that sex.
• (3) Where the members of one sex are underrepresented among interscholastic athletes, and the institution cannot show a history and continuing practice of program expansion as required in paragraph (2), whether the school district can demonstrate that the interest and abilities of the members of that sex have been fully and effectively accommodated by the present program.
e. If an educational institution must cut its athletic budget, the educational institution shall do so consistently with its legal obligation to comply with both state and federal gender equity laws.
f. It is the intent of the Legislature that the three-part test articulated in subdivision (d) be interpreted as it has been in the policies and regulations of the Office of Civil Rights in effect on January 1, 2003.
g. On the basis of sex, harassment or other discrimination among persons, including, but not limited to, students and nonstudents, or academic and nonacademic personnel, in employment and the conditions thereof, except as it relates to a bona fide occupational qualification.
h. On the basis of sex, the application of any rule concerning the actual or potential parental, family, or marital status of a person, or the exclusion of any person from any program or activity or employment because of pregnancy or related conditions.
(Amended by Stats. 2003, Ch. 660, Sec. 1. Effective January 1, 2004.)

Student Rights Pursuant To Education Code Section 221.8

In addition to federal law, the California Education code similarly prohibits schools from discriminating against its students on the basis of sex. Education Code section 221.8 provides as follows:

The following list of rights, which are based on the relevant provisions of the federal regulations implementing Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.), may be used by the department for purposes of Section 221.6:

a. You have the right to fair and equitable treatment and you shall not be discriminated against based on your sex.

b. You have the right to be provided with an equitable opportunity to participate in all academic extracurricular activities, including athletics.

c. You have the right to inquire of the athletic director of your school as to the athletic opportunities offered by the school.

d. You have the right to apply for athletic scholarships.

e. You have the right to receive equitable treatment and benefits in the provision of all of the following:
• Equipment and supplies.
• Scheduling of games and practices.
• Transportation and daily allowances.
• Access to tutoring.
• Coaching.
• Locker rooms.
• Practice and competitive facilities.
• Medical and training facilities and services.
• Publicity.

f. You have the right to have access to a gender equity coordinator to answer questions regarding gender equity laws.

g. You have the right to contact the State Department of Education and the California Interscholastic Federation to access information on gender equity laws.

h. You have the right to file a confidential discrimination complaint with the United States Office of Civil Rights or the State Department of Education if you believe you have been discriminated against or if you believe you have received unequal treatment on the basis of your sex.

i. You have the right to pursue civil remedies if you have been discriminated against.

j. You have the right to be protected against retaliation if you file a discrimination complaint.

Sexual harassment Under Title IX

Sexual harassment under Title IX means conduct on the basis of sex that satisfies one or more of the following:

 

  1. An employee of the school district conditioning the provision of an aid, benefit or service of the school district on an individual’s participating in unwelcome sexual conduct (quid pro quo);
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
  3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

 

Alleged conduct that does not rise to the level of the sexual harassment under Title IX will be addressed in accordance with other District policies that prohibit sexual harassment and/or sex-based discrimination, or other forms of inappropriate conduct, as is deemed appropriate.

Frequently Asked Questions

What is sexual harassment? 

Sexual harassment is doing or saying anything sexual that makes someone else feel uncomfortable. This includes name-calling, starting rumors, or making sexual jokes or gestures. It also includes unwanted touch and unwanted communication like sexual comments, texts, or messages on social media.

 

What are my rights regarding sexual harassment in schools?

Title IX of the Education Amendments of 1972 is a federal law prohibiting sexual discrimination in schools. It protects people from sexual discrimination and harassment. Teachers and students have the right to participate in all educational programs and activities without fear of sexual harassment. Faculty, staff, and students all have a duty not to engage in sexual conduct that is obscene or unwanted by others. They also have a right to be protected from such conduct.

 

What can I do if I am being harassed?

People who believe they have been sexually harassed on school grounds or at a school-sponsored or school-related activity by another person, or who have experienced off-campus sexual harassment that has a continuing effect on campus should do either of the following:

  • Report the offensive behaviors to a teacher, guidance counselor, school-based therapist or administrator; or
  • Report the offensive behaviors to the Title IX Coordinator at UPA: Sam Hu, Restorative Practices Counselor.

 

What happens after sexual harassment has been reported?

University Preparatory Academy (UPA) has an obligation to respond to all known allegations of sexual harassment. This means the school must review and appropriately respond to all complaints in accordance with school policy. The school must provide a prompt response, treat everyone fairly and offer supportive measures to all parties. Once you file a complaint, you will receive confirmation it has been received. For those complaints that are investigated, a “preponderance of the evidence” standard will be applied to determine if a violation of school policy occurred. In most cases a written response to your complaint will be provided within 60 days. UPA must inform both the reporting party/victim and responding party/accused of the outcome of the investigation and findings.

 

What happens while an investigation of sexual harassment is conducted? 

During the time of an investigation UPA must put in place what are called “interim measures”. These could include a “no contact contract” in which the parties agree in writing that they will not be in touch in person, via social media or other electronic means, or through other people; designated routing on campus to ensure, to the degree practicable, that the individuals involved do not cross paths within their school day; and meeting with a school-based therapist.

 

What might be the outcome of an investigation of sexual harassment?

In the event that it is determined that school policy has been violated UPA will put in place “corrective actions”. These could include ongoing implementation of a “no contact contract” and designated routing on campus, a change in schedule for the responding party, and/or other disciplinary measures. UPA must inform both the reporting party/victim and responding party/accused of the outcome of the investigation and findings.

 

Could Reporting Sexual Harassment Affect My Academics?

Reporting harassment and receiving the support that you need will not affect your academics or other standing at the school. Support will be provided to ensure that you are safe at school and free from retaliation.

 

Will a School Adult Tell My Parents After I Report Sexual Harassment? 

The school adult will support you in talking with your parent/guardian. A school-based therapist can provide support as well.

 

Will the Police Get Involved?

Sexual harassment can take different forms and will be addressed by school administration. Police are contacted for incidents that could be criminal such as cyber sexual bullying and assault. You may request a school-based therapist to be with you and provide support when giving your report.

 

What Do I Do If I See Sexual Harassment Occur?

Report sexual harassment that you see because you could help another person. Report the incident to a trusted adult, either verbally or in writing. This person can be a teacher, academic counselor, school-based therapist or administrator.

 

What Do I Do If A Friend Tells Me They Are Being Sexually Harassed?

Your friend has the right to file a complaint. Encourage them to report the incident to a trusted adult, either verbally or in writing. This person can be a teacher, academic counselor, school-based therapist or administrator. You could offer to go with your friend to talk with a trusted adult. You may also choose to stand up for your friend and talk with a trusted adult yourself.

 

What Are Some Reasons People Who Experience Sexual Harassment Do Not Report It? 

Sometimes people do not report sexual harassment because they fear that they will not be believed or that there will be retaliation by the person who has harassed them. Part of the reporting and investigation process is ensuring the safety of the person reporting the harassment.