Department of Education and Sexual Assault/Harassment

On September 22, 2017, the Department of Education issued new guidance on Title IX. Given that the the person who received the majority of electoral college votes bragged about sexual assault, it is no surprise that the guidance appears to weaken interpretations of Title IX.

Before getting into the Dear Colleague Letter, it’s important to set the stage. When I hear people talk about Title IX and sexual assault in schools there seems to be a considerable amount of confusion about when Title IX comes into play.

Violating Codes of Conduct vs. Violations of Title IX

All schools, colleges, and universities have Codes of Conduct. These Codes of Conduct are supposed to have guidance for how to handle allegations of sexual harassment and sexual assault. They also include a variety of other components, they may include civility requirements, explicit prohibitions on plagiarism, dress codes, and attendance policies. The University of Washington Code of Conduct is captured in the WACs (Washington Administrative Code, the state version of the CFR). A sampling of the items included are: academic misconduct, acts of dishonest, alcohol violations, computer abuses, creating a public nuisance in neighboring communities, discriminatory harassment, harassment or bullying, hazing, indecent exposure, sexual assault, theft, and unauthorized recording. The Burden of Proof in “brief adjudicative proceedings” as well as “Full hearings” is the “Preponderance of evidence standard.”

As long as a school, university, or college has a (working) system where students can file complaints and those complaints are resolved in a timely fashion, Title IX likely will not come into play with regard to individual allegations of sexual assault.

Title IX is a ban on sex discrimination in education. This means that it is attempting to address the systemic issues. Title IX complaints are lodged when a educational institution appears to be failing to address the issues in a way that can lead to a situation where the educational institution knew or should have known that problems existed. (The ACLU-WA has a great guide that goes into more detail.) In an individual setting, a complaint is often filed when a person tries to pursue the educational institution’s complaint process and there are significant hurdles (the educational institution having unclear or contradictory methods of complaining, not providing a method of appeal, etc.) Title IX can also be implicated if there is a hostile environment that the school should have known existed. For example, if a significant number of complaints of sexual assault occur during football recruiting and the school does nothing to address student safety, the school could be liable for a Title IX violation. This means that in addition to many other claims students could file against the university, they could include an allegation of a Title IX violation, which allows for monetary damages. It also means, though in the history of Title IX it has never happened, that the Federal Government could rescind federal funding to the educational institution (the entire educational institution, not just the area where the discrimination occurred).

Understanding the Reason for the Recent Dear Colleague letter 

Sexual assault has long been an area where there is a misguided belief that people make false reports at substantially higher rates than other crimes and therefor anyone who claims a sexual assault happened must be looked at suspiciously. In addition, those accused of sexual assault (especially privileged white young men) should be given extra leniency so as to protect the harm that could befall them from a proper punishment. Proponents with this view point believe that anything involving sexual assault allegations should have to reach the highest burden of proof, the standard used in a criminal trial (beyond a reasonable doubt or as it’s labeled in a civil setting “clear and convincing”) even when not there is no deprivation of life or liberty at stake.

The new Q&A issued in connection with the Dear Colleague Letter rescinding the 2011 Dear Colleague letter is a nod towards heading in the direction of the heightened standard because it revokes the preponderance standard articulated in the 2011 Dear Colleague Letter.

Relevant Comparison of the Dear Colleague Letters 

The 2011 letter stated (Note the Department of Education appears to have removed it from the general summary, but it can be found on the archived site :

Title VII prohibits discrimination on the basis of sex.26 OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

(emphasis added)
Footnotes referenced:

26 See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (noting that under the “conventional rule of civil litigation,” the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex discrimination case) (plurality opinion); id. at 260 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment). The 2001 Guidance noted (on page vi) that “[w]hile Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.” See also Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.”).

 

27 OCR’s Case Processing Manual is available on the Department’s Web site, at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.

 

28 The Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act of 1964. See 34 C.F.R. § 106.71 (“The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference.”). The Title VI regulations apply the Administrative Procedure Act to administrative hearings required prior to termination of Federal financial assistance and require that termination decisions be “supported by and in accordance with the reliable, probative and substantial evidence.” 5 U.S.C. § 556(d). The Supreme Court has interpreted “reliable, probative and substantial evidence” as a direction to use the preponderance standard. See Steadman v. SEC, 450 U.S. 91, 98-102 (1981).

The new regulations state:

The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.19

(Emphasis added).

Referenced footnote:

19 The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases. In a recent decision, a court concluded that a school denied “basic fairness” to a responding party by, among other things, applying a lower standard of evidence only in cases of alleged sexual misconduct. Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (“[T]he lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove—and thus more difficult to defend, both for guilty and innocent students alike. It retained the higher standard for virtually all other forms of student misconduct. The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”). When a school applies special procedures in sexual misconduct cases, it suggests a discriminatory purpose and should be avoided. A postsecondary institution’s annual security report must describe the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking. 34 C.F.R. § 668.46(k)(1)(ii).

Impact of the Dear Colleague letter

This particular Dear Colleague letter will likely have minimal impact. It doesn’t require schools to use a clear and convincing standard. In fact, it requires a consistent standard and educational institutions are unlikely to want to have a “clear and convincing” standard for all the discipline proceedings that come before them.

The real damage with the change in administration of the Department of Education is a regular problem that occurs are the shift of values when there is a Republican president. The President appoints people and outlines priorities that shift away from enforcement of sex discrimination. They do not diligently pursue Title IX complaints, at least not to the same extent as those appointed by Democratic presidents. If they take a Title IX complaint, they are far more likely to pursue a complaint that alleges the educational institution’s practices were unfair to the accused than the vastly greater number of complaints of the unresponsiveness of educational institutions towards targeted students. Knowing that the Office of Civil Rights is likely not going to pursue Title IX complaints often means people are less willing to file them (this is also a trend with the EEOC and sex discrimination claims in the workforce).

It seems odd that ensuring that students are not sexually assaulted is a partisan issue, but for some inexplicable reason Republican administrations actively work to weaken protections against sexual assault, sexual harassment and efforts to overcome sex discrimination as this recent Dear Colleague Letter demonstrates.

More concerning than this particular Dear Colleague letter, which allows educational institutions to use a clear and convincing standard if that’s the standard for all other violations of their codes of conduct, is that the Department of Education is exploring changing the regulations. Nevertheless, the regulations cannot rescind the law, nor can regulations overturn court decisions. While federal enforcement can be weakened administratively and that can have a big impact, Title IX is not going anywhere any time soon.

 

Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

The Bainbridge Island Police Department has arrested 26-year-old teacher Jessica Fuchs for illegal sexual conduct with a 16-year-old sophomore (based on the charges, the student was likely 16 when all incidents occurred). I blogged about this case here. Inside Bainbridge has several articles regarding the case and the arrest. Bainbridge Islander also has articles as does the Kitsap Sun.

According to Inside Bainbridge she was charged with Sexual Misconduct with a Minor in the 1st Degree, a class C felony (RCW 9A.44.093, makes it a crime for a teacher to have sex with a student who is at least 16 years old, when the teacher is at least 60 months older than the student, a Class C felony is a maximum of 5 years in prison); Communication with a Minor for Immoral Purposes, a gross misdemeanor (maximum of 364 days), and Tampering with a Witness, also a Class C felony.  If the student had been 15 when some of the incidents occurred other criminal laws would have also applied regarding rape of child or molestation of a child.

» Read more

Mercer Island School District v. Office of the Superintendent of Public Instruction and parents of B.W.

On April 13, 2015, Division I issued its decision in the Mercer Island racial discrimination case that I previously wrote about here. Division I found that in the the administrative context (i.e., working with the school district and OSPI as opposed to filing a civil suit for damages in court), school districts that have actual or constructive notice (also known as the knew or should have known standard) of racial harassment, the school must take immediate and appropriate action to investigate or otherwise determine what occurred. It further requires that every investigation should be prompt, thorough, and impartial. Finally, it imposes upon the school the duty to take prompt and effective steps reasonably calculated to end harassment, eliminate any hostile environment and its effects, and prevent harassment from recurring.

The knew or should have known standard is a lower standard than the deliberate indifference standard. The court noted that even though the deliberate indifference standard creates a lower burden for a school district, to avoid administrative liability the school district still failed to meet the deliberate indifference test. The court likely went into this discussion to make sure that if the case was appealed to the State Supreme Court that the justices would not doubt how Division I would have ruled. This would mean if the State Supreme Court eventually reverses the knew or should have known standard, the overall holding of this case will not be reversed, because the court of appeals clearly demonstrated that they would have ruled the same way using the higher threshold.

Mercer Island School District, Res. V. N.W. And R.W., On Behalf Of B.w., Apps., Docket No. 71419-8-I, File Date: April 13, 2015; Opinion: Dwyer, Concurrence in part: Verellen; Counsel for Appellant: Ernest Saadiq Morris; Counsel for Respondent Parker a Howell and Jeffrey Ganson Counsel for OSPI and Amicus on behalf OSPI: Justin Kjolseth; Amicus on behalf of the ACLU: Sara Dunne and La Rond Baker

Oversimplified facts: A student targeted B.W., calling him names on multiple occasions. B.W. The targeted student’s grades dropped in that class. Part of the reason the grade dropped was that instead of writing on topic, he submitted two papers describing a random and violent accident happen to the aggressor student. Once the targeted student transferred out of the class, he began earning “A’s” and there were no more concerns about his behavior.

The court first focused on the deliberate indifference standard. In order to satisfy the deliberate indifference standard, the parents were required to establish: (1) racial discrimination; (2) knowledge by an appropriate person of the discrimination; (3) deliberate indifference by the district; and (4) discrimination that was sufficiently severe, pervasive, and objectively offensive that it can be said to have deprived the targeted student of access to the educational opportunities or benefits provided by the school.

Per the opinion, the school made several mistakes in dealing with this situation. Based on the deliberate indifference standard, these include:

  • The school district looked at the incidents involving the harassment separately instead of holistically. A school district acts with deliberate indifference when it responds to report of a discriminatory act that is clearly unreasonable in light of all of the known circumstances. 
  • The  school failed to properly investigate the claim of discrimination, which resulted in a clearly unreasonable response to the harassment. 
    • Failed to have compliance coordinator/officer and failure to update its policies to reflect the nondiscrimination law and OSPI’s May 2011 regulations.
    • Co-principals conducted inadequate investigations, failing to follow even their own out-of-date policy and doing the following:
      • The school and the District only interviewed two of the four students working on the group project where the racial harassment incidents occurred. The reasons for not interviewing additional students were not credible, specifically that an Apserger’s diagnosis would have made B.W. mishear the racial comment. The District didn’t provide any any evidence to support that conclusion that an Asperger’s diagnosis would make B.W. unable to accurately hear and report a racial epithet.
      • The school failed to discover basic information that contextualized B.W.’s complaint and gave further credence to B.W.’s allegations.
      • The school continued to informally investigate the report after the parents told him they wished to file a formal complaint, which would have been handled by the District as opposed to the school.
      • The District did not discuss B.W.’s essay. The teacher expressed concern that if the parents saw the essay, the parents would see it as confirming the racial harassment allegations.
    • Formal investigation by the school’s frequently used outside counsel was “fraught with inadequacies.”
      • Attorney investigator did not ask B.W. about the two essays, nor did she ask the teacher or co-principals to explain why they withheld the existence of the essays from the parents. The reports weren’t even included in the text of the report, but they were appended to the report, which is the first time the parents learned of the existence of one of the essays.
      • She did not account for the conspicuous discrepancy between B.W.’s grades in other classes and his grades in the class he shared with his harasser.
      • She did not address the ostensible connection between the discussion of Mexico and the racially charged comments between two students and B.W.
    • District failed to meaningfully and appropriately discipline the aggressor student. He was only told not to use race as the basis for angry comments and to sign an “anti-harassment contract.”
    • District refused to consider any scenario in which B.W. was not to blame for the conflict with the aggressor student, believing the conflict was due to B.W.’s social deficits. Apparently the school was frustrated because shortly after entering this school district, B.W.’s IEP was withdrawn at the parent’s request.

Having satisfied the first three prongs of the deliberate indifference test, the next question is whether it was sufficiently severe, pervasive and objectively offensive so that it can be said to have deprived B.W. of access to educational opportunities or benefits provided by the school. The court said the racial comments were beyond simple teasing and name-calling, the student made it clear that it wasn’t that his skin color made him different, but that it made him stupid. It was also done in the context of group setting, increasing the humiliation B.W. felt. B.W. was new to this school, he cried in public, he wrote disturbing essays, and he received uncharacteristically low grades in this class.

Based on that, the court held that harassment was sufficiently severe. Then the question is – did it interfere with equal access to educational opportunities or benefits? The “dropoff” in grades can provide “necessary evidence of a potential link between” a students diminished educational opportunities.” B.W. was also forced to remain in the class with the harassing student. Once B.W.’s parents transferred him out of the class, his grades immediately went up to match his high achievement in his other classes.

Lower Standard Analysis 

After stating that the facts support a finding that the school district failed to meet the deliberate indifference standard, the court turned its discussion to the question of whether in the administrative context deliberate indifference applies. The Office of Civil Rights (of the U.S. Department of Education, the administrative agency tasked with enforcement of the Federal counterparts to the Washington nondiscrimination laws) requires “upon receiving actual or constructive notice of racial harassment, the school ‘take immediate and appropriate action to investigate or otherwise determine what occurred.'” Then the  District is required to take “prompt and effective steps” to end the harassment.” Applying this more lenient standard the court found that “it is abundantly clear that the District’s response violated the EEOL.” (EEOL is the Equal Education Opportunity Law prohibits discrimination on a several protected classes, including race.)

Concurrence

Verellan concurs that the District failed to meet the deliberate indifference standard in addressing the discrimination. Verellan would not take the next step and determine whether the OCR know or should have known standard should have been applied.

Take Away Points

When parents complain to the school district, or the school district knew or should have known about discrimination based on any of the of the protected classes identified in RCW 28A.642.010:

  • race,
  • creed,
  • religion,
  • color,
  • national origin,
  • honorably discharged veteran or military status,
  • sexual orientation including gender expression or identity,
  • the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.
  • Sex (is covered under the Sex Equity Law RCW 28A.640)

a school must take immediate and appropriate action to investigate or otherwise determine what has occurred. The investigation should be prompt, thorough, and impartial. If discrimination exists (including harassment) the District must take prompt and effective steps to end the harassment.

Missing Parts of the Opinion

Difference between Federal and State Laws

I would have liked to see a greater discussion on state vs. federal law and whether or not the deliberate indifference standard is truly required in state discrimination cases. The other case decided by Division I on this issues, S.S. v. Alexander, 143 Wn. App. 75, 177 P3d 742 (2008) also did not discuss this issue. The court mentioned Title IX and Title IX, which are interpreted consistently with each other. Both are based on the Congress’s power under the Spending Clause. Basically compliance with nondiscrimination rules are ensured because the federal government can place conditions on the receipt of federal funds. If schools take federal funding, they agree to abide by the rules, in “what amounts essentially to a contract between the Government and the recipient of funds.”  (Citing Gebser v. Lago Visto Indep. Sch. Dist. 524 U.W. 274, 286 (1998). 

There is no express right to a private suit in Title VI or Title IX, but the Supreme court has held that both statutes are enforceable through an implied right of action. The Supreme Court clarified that this private right of action is only available when a school acts with deliberate indifference. It would be inconsistent with the SPending Clause origins of Title IX and Title CI to impose damages liability unless a school authority with the power to remedy the discrimination had actual notice of and was deliberately indifferent to the conduct.

Despite discussing the above reasoning and pointing out that Title IX and Title VI require a deliberate indifference standard, the court doesn’t discuss the state statues and how they are not based on the Spending Clause. States get to tell schools what kind of nondiscriminatory standards they must comply with without basing it on any condition of funding. Plus our state statutes have express rights to pursue actions in civil courts. It’s not implied. Schools are on constructive notice that the must not discriminate and if they discriminate there may be administrative and judicial consequences. This distinction seems very important but it isn’t discussed. (See Pages 32-34 of the court’s decision for more discussion on this).

Multiple Identities 

The court likely limited its discussion to race because that was the issue before it, but since there was so much discussion about the targeted student’s Asperger’s diagnosis, I would have like to have the court point out that the failure of the school district to believe the targeted student because of his Asperger’s diagnosis was also a form of discrimination. Students who have multiple identities are often targeted for bullying because of the fact that they have multiple identities and the decision was remiss to spend so much time discussing the way the Apserger’s diagnosis interfered with the District’s handling of the case without stating that was also discriminatory.

Distinction between harassment, intimidation and bullying (HIB) and discrimination.

I was disappointed that there was no discussion about the difference between harassment, intimidation and bullying (“HIB”) and discrimination. There has been a lot more emphasis put in schools about HIB, there are state model policies and procedures. On Page 12, the court noted that the District’s November 4 decision was pursuant to the District’s Harassment, Intimidation, and Bullying policy. This flags for me that it was the wrong policy as it is in connection with a different law. The distinction between generalized HIB and HIB targeted at a student based on one of the protected classes identified in the state statue trigger different requirements for action. HIB targeted based on a protected class is likely going to be discrimination. Generalized HIB require individualized responses. HIB against a student because of a protected class requires schools to address the school atmosphere/climate and review their policies and procedures to make sure the school is not contributing to the issue of discrimination. HIB based on federally protected classes may overlap with federal nondiscrimination laws and may require a concurrent Title VI or Title IX investigation.

 

Federal Guidance on Title VI vs. OSPI WACs

On October 1, 2014, the U.S. Department of Education Office for Civil Rights issued a Dear Colleague Letter. Dear Colleague letters are the Office of Civil Rights’ efforts to provide guidance for schools on what is needed to comply with federal laws. In this case, the letter focused on legal obligations under Title VI of the Civil Rights Act of 1965, which prohibits discrimination on the basis of race, color, or national origin.

The timing of this letter is interesting for in Washington, OSPI just went through a rule-making process on our state law that corresponds with the federal law. The proposed WACs are discussed in this blawg. So how do our state regulations compare to the federal guidance? As I noted in the prior blawg, the WACs are woefully inadequate to address remedying the discrimination that exists in our public schools. The Dear Colleague letter and guidance provide clear examples of the issues the WACs should have addressed (technology, teaching, etc.)

The Dear Colleague Letter starts by setting the stage, identifying history and present of unequal access to educational resources. It also discusses some of the factors that can be hard to measure that impact school success, including quality of building, experienced level of teachers, instructional materials and technology, and differences in teacher salaries. The WACs do not discuss this, although arguably that is what was discussed in the law and the WACs do not need to discuss this.

Then the Letter discusses intentional discrimination and identifies the following analysis for determining whether a school district intentionally discriminated in the allocation of its resources:

  1. Did the school district treat a student, or group of students differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin (a prima facie case of discrimination)?
  2. Can the school district articulate a legitimate, nondiscriminatory, education reason for the different treatment? If not, OCR could find the district has intentionally discriminated on the basis of race. If yes, then:
  3. Is the allegedly nondiscriminatory reason a pretext for discrimination? If so, OCR would find the district has intentionally discriminated on the basis of race.

Then the letter discusses disparate impact. School districts also violate Title VI if they adopt facially neutral policies that are not intended to discriminate based on race, color, or national origin, bud do have an unjustified, adverse disparate impact on students based on race, color, or national origin. OCR applies the following analysis for disparate impact:

  1. Does the school distract have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?
  2. Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask:
  3. Are there comparably effective alternative policies or practices that would meet the school district’s state educational goal with less of a discriminatory effect on the disproportionately affected racial group; or is, the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school disctrict had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.

One of the major distinctions between this commentary and the proposed WACs is that several changes in the WACs make it sound like OSPI was trying to eliminate the disparate impact standard. That seems contrary to the intent of the state law to create a system that has fewer protections than the federal law.

Then the Letter goes on to discuss school funding. Again, the letter provides more guidance then the WACs.

A. Courses, Academic Programs, and Extracurricular Activities

The WACs have a limited discussion saying that no district shall provide any coursework based on a protected status. The Dear Colleague Letter requires that students have access to, and enroll in rigorous courses are more likely to go on to complete postsecondary education. It also notes that OCR will assess the types, quantity, and quality of programs available to students across a school district to determine whether students of all races have equal access to comparable programs both among schools and among students within the same school.

The Dear Colleague Letter discusses extracurricular activities, especially those that have been shown to support college and career readiness and high academic rigor, and states they must be offered on a nondiscriminatory basis. It notes that there will be a quantitative and qualitative review. The WAC only discusses recreational and athletic activities and states that no one be denied participation in based on a protected class. The focus in the WAC is based on athletics and demonstrates that it is the holdover from the state version of Title IX and providing equal athletic opportunities for girls.

The Dear Colleague Letter captures the intent of the legislation that was passed in Washington, it shows a demonstrated effort to outline for schools how to view their programs and make sure they are provided on a nondiscriminatory basis. It is not detailed and it won’t provide all the answers, but unlike the WACs, it makes an effort.

B. Strong Teaching, Leadership, and Support

The WACs don’t address the problem of the impact of teachers on education. The Dear Colleague Letter does and it notes that ensuring that schools have effective and stable teachers is a major component of ensuring that a school district does not discriminate based on race, color, or national origin. They will oook at turnover rates, teach qualifications, and experiences, school leadership, and support staff.

C. School Facilities 

Again because the WACs use as a starting point the Sex Discrimination WACs and did not actually try to examine the issue of what it means to address discrimination based on additional factors, the only reference to facilities is with regard to recreational and athletic activities. The Dear Colleague Letter addresses school facilities in terms of (1) physical environment – schools should be structurally sound and well-maintained; (2) Types and Design of Facilities – laboratories, auditoriums, and athletic facilities – must be provided on an equal basis.

D. Technology and Instructional Materials

When the WACs were originally written technology was a not an issue, the internet didn’t exist. So when they were simply modified by tacking on the additional protected classes to the existing sex discrimination regulations, there was no consideration of technology – so it’s no surprise the WACs are silent on the issue of technology. The Dear Colleague letter provides guidance that OCR will consider the number, type, and age of educational technology devices will be assessed in determining whether they are provided without regard to race, color, or national origin. They will also look at the size, content and age of a schools library collection considering quantity and quality of materials.

Prevention 

The WACs essentially limit proactive surveys and monitoring to athletics and recreational activity. The guidance of the Dear Colleague Letter notes that the assessment must be broader than recreational and athletic facilities – school districts need to compare how educational benefits and burdens are allotted.

Conclusion

The Dear Colleague letter makes it clear that OSPI is not providing sufficient guidance to assist schools in creating nondiscriminatory schools. A school that relied on the understanding that our state tries to go further in the protection of students than the federal government and relied on the WACs would fail to meet the federal standards.