An attorney from Shipman and Goodman joined the Board of Education meeting on Thursday to advise on a proposed policy that would codify Title IX on a local level for students and staff.
Title IX of the Education Amendments of 1972 prohibits sex discrimination in any education program or activity receiving federal financial assistance.
Title IX specifically includes protections against discrimination on the basis of sexual orientation and gender identity, and schools are not permitted to exclude transgender athletes from teams.
There were actually two policies presented – 4000.1, which relates to staff, and 5145.44, the policy that protects students – and both were drafted by Shipman and Goodman.
Andreana Bellach of Shipman and Goodman said her firm represented the majority of school districts in Connecticut and she was not aware of any that had not adopted a policy in compliance with the current Title IX law.
The policy relating to staff passed unanimously, but the policy on students divided the board along party lines.
Christina Downey, a Democrat who chairs the BOE Policy Governance Committee, explained why the policy was needed.
“It came about because PGC, in the process of reviewing various policies and procedures, looked at required and recommended policies from the CT Association of Boards of Education (CABE) and realized Title IX policies were not in proper form despite being required by law,” Downey said.
Attorney Bellach explained that all boards of education are required by law to adopt a policy that is compliant with Title IX.
Bellach said approving the policy boiled down to codifying state and federal law at the local level, and that her firm represented the majority of school districts in Connecticut, and all other districts in the state had passed the policy as drafted.
Republican Karen Kowalski took issue with the policy.
“This reads so broad as to allow for students that are born biological male and transitioning, and playing on girls sports teams,” she said.
With her voice rising, she continued, “As a woman, and as a woman who played sports her entire life, and mother of three daughters who play sports, I have problems with this.”
“Title IX was intended to protect women,” she continued. “(The proposed policy) gives the opportunity for young girls in sports to lose out on opportunities they would otherwise have been afforded, and also denies them the opportunity to win and achieve college scholarships.”
“We’re experiencing it now with respect to the NCAA swimmers,” she continued. “Today, the NCAA has come back and said it needs a policy, a program, and more rules governing this because women are being sidelined.”
On Jan 19, the NCAA Board of Governors announced updates to their transgender participation policy. The change gives transgender student-athletes the chance to play sports while “balancing fairness, inclusion and safety for all who compete.” – NCAA announcement, Jan 19, 2022
“We have fought so long to be treated as equals. And now all of a sudden we are not,” Kowalski added, with her voice rising. “I’m not going to stand for it. I don’t care if it is Connecticut law.”
“I do not think in good conscience we can move forward with a policy that allows for biological boys to compete on female athletic teams who are biologically stronger, bigger, faster, until there is some other guidance,” she added. “I cannot get behind this.”
“I am sympathetic to the under represented, but I agree withe Karen on this topic,” said Republican BOE member Joe Kelly, who coached GHS rugby for many years.
“I have three daughters. I spoke to my wife about this and she was so passionate against this topic,” he said. “I always thought it was unfair.”
“I understand this group is under represented, but I don’t think it’s safe and fair,” Mr. Kelly added.
“This policy is way beyond what we’re talking about. It’s also sexual harassment and addresses a number of things. It’s not purely an athletic policy,” Ms Downey said.
Ms Bellach said the policy was not a statement of the values of individual members.
“To not have a policy could be problematic legally, either with the state or federal authorities, including the US Dept of Education, the state Board of Education, and the office of Civil Rights of the US Dept of Education,” Bellach said. “There have been times the office of Civil Rights engages the Dept of Justice with concerns about enforcement.”
“To clarify the current law, Title IX is interpreted and enforced by the US Dept of Education Office of Civil Rights, with an interpretation in 2021 that the non discrimination clauses protects transgender students,” Bellach continued.
There was reference to a 2019 lawsuit brought in federal court by cisgender athletes Chelsea Mitchell and Selina Soule against the Connecticut Interscholastic Athletic Conference (CIAC) for their policy allowing transgender female athletes to compete in girls high school sports. According to Transathlete, Connecticut is one of 16 states that allow transgender high school athletes to compete without restrictions.
In Soule et al v. CT Association of Schools et al, the ACLU represented Connecticut transgender student athletes Andraya Yearwood and Terry Miller. According to the ACLU,”Transgender women and girls have been competing in sports at all levels for years, and there is no research supporting the claim that they maintain a competitive advantage.” Their statement continued: “…women should be concerned whenever an alleged concern for ‘protecting’ our wellbeing is invoked to justify exclusion. We’ve seen these arguments play out with the harmful and debunked “bathroom predator” myth, where false concerns for cis girls and sexual harassment have been used to promote legislation banning transgender people from public restrooms.”
Once the Biden administration was in place, the US Justice Department and the Department of Education’s Office of Civil Rights withdrew their support for the lawsuit. In April, 2021 a federal court judge dismissed the lawsuit. The plaintiffs have since appealed.
At the board meeting, Mr. Kelly said when he joined the board his understanding was that he could choose among voting, yes, no or abstaining.
“You’re saying we can only vote yes?” he asked.
Bellach said, “I’m saying the entity must adopt a policy that is in compliance with the law. The vote is not a statement of individual members. It is a policy of the Board of Education.”
Republican Michael-Joseph Mercanti-Anthony asked, “What would happen, what kind of jeopardy are we in if we don’t?”
Mr. Mercanti-Anthony continued, “What if we adopt a policy that is not in compliance with the law? We take the principled stance – we put a line in or amend it in a certain way that we know doesn’t agree with the law. What are the consequences of that?”
“There are procedures in which the state Board of Education could determine the board is not meeting its statutory obligations,” Bellach said. “The state Board of Education could take action against the (Greenwich) Board of Education. In addition, the US Dept of Education through the office of Civil Rights and/or the US Dept of Justice could take enforcement action in connection with non compliance with Title IX.”
Also, because Greenwich Schools receive federal funds, there could be implications for that federal funding, as well as the possibility of individual claims relative to non compliance.
Democratic BOE member Karen Hirsh said she understood the concerns. But, she said, “It’s a policy speaking against sexual harassment and discrimination which goes to a broader and wider discussion, so students feel part of a community and don’t feel discriminated against for a multitude of things.”
Cody Kittle joined the other Republicans in objecting to the policy, adding that there were existing policies that protected students.
“Our system is designed for different governing bodies to object to one another and not get steamrolled, especially over moral issues,” he said.
“I would encourage my fellow board members to reflect on the importance of federalism and the separation of powers as the founding principle for how our government is set up,” he said. “…The law is constantly evolving and being reinterpreted, both by judges and through legislative processes. If we see something that is morally wrong, we can by standing up against it and letting these processes work their way through the system.”
“We’re just allowing something like that to play out, and if down the road we say, you know this is costing too much in lawyers, or causing other issues, we can re-evaluate it,” Kittle said.
Ms Downey said the district’s lack of policy was a concern and opened up a set of problems.
She said the superintendent had told the policy committee there had been “incidents that bring to bear from students, their counsel and their parents. It is an occurrence that we do deal with.”
Also, Downey said, “I don’t know whether the CIAC would permit participation if there is non compliance with their rules and their policies.”
“I’m more confused,” Mr. Kelly said. “I’m thinking perp walk and all that sort of stuff. I don’t want to go there. I’m not a lawyer. I usually have people do that for me.”
“That’s why (outside counsel Ms Bellach) is here,” Downey said.
“Can we vote on one and put the other off for another time so we can gather more information?” Mr. Kelly asked.
“I think we should take a vote tonight. We’re already two meetings in, arguably three,” Downey said.
Ms Kowalski asked if there was a way to draft the policy that would allow situations to be evaluated case by case.
“I have plenty of friends who have children in that position. I do not feel comfortable being the arbiter of what occurs,” Ms Hirsh said. “It’s a very difficult position to put all of us in.”
“I’m worried about exposing us as a board,” said BOE chair Kathleen Stowe.
Ms Bellach said there had been challenges in other states to education boards that had adopted laws that restricted access to, for example, bathrooms and locker rooms.
“There has been legal exposure to those districts through school boards that adopted such policies,” she said. “Each of you is indemnified and the BOE is indemnified and held harmless against lawsuits in connection with your official activities.”
However, she said, there was an additional risk – a worst case scenario. “There is an exception to that under 10-235 of CT General Statues, which is anything that is wilful, wanton or malicious.”
After the vote down party lines in a tie with Democrats Hirsh, Downey, Stowe and Kostin voting in favor, and Kittle, Mercanti-Anthony, Kowalski and Kelly voting opposed, the policy failed to pass.
At the end of the discussion, Ms Bellach had the last word:
“It is important to adopt a policy. I’ll leave you with that. It’s a legal requirement.”
On Monday BOE chair Ms Stowe said in an email that she was surprised the vote went down party lines.
“From my perspective, Title IX is one of the core pieces of legislation promoting equality and preventing discrimination, which are goals I very much support. The Board has a legal obligation to implement this policy so it will need to come back for a vote. More importantly our students need to understand that we support them and we do not discriminate.”
Stowe said each board member was entitled to their perspective.”Through all this debate, however, it’s important that our students are reminded that Greenwich Schools is a welcoming and inclusive environment.”
Ms Kostin said in an email that Ms Bellach had been quite clear.
“We have a duty to uphold the law and protect ALL of our students regardless of their gender identity or expression. I stand by my vote unequivocally and hope my colleagues who voted ‘no’ will understand that this is a vital matter of civil rights.”
Mr. Mercanti-Anthony said in an email that the district needed to protect the rights of all students, including those who are transgender.
“Let’s be clear that the BOE did not vote to make discrimination legal. Discrimination in the district is banned just as much after the vote as it was the day before the vote. This vote reflects the desire of me and several other members to refer this back to the Policy Committee to consider alternative wording that better protects our female athletes.”
Also, by email on Monday, Ms Hirsh said, she was personally disappointed by the Board’s decision on Thursday evening.
“While Title IX was initially drafted almost 50 years ago to ensure equal opportunities for women in sports, it now ensures that ALL students and staff, no matter their gender, gender identity or sexual orientation, are protected from discrimination, bullying and harassment in all educational settings,” she wrote. “Not only do our legal responsibilities as the Board of Education, under policy 9012 state that we take any (other) actions required (or permitted) by law but I can think of few things more important than safeguarding ALL of our students rights to learn and participate in a healthy and inclusive educational environment free from harassment and discrimination for any reason.”
Also, reflecting on Thursday’s vote, Mr. Kittle said, “”It seems like a reasonable approach to ask if we can seperate modest updates to the wording of our existing harassment policies, which are already robust and have broad support, from a more controversial policy that impacts girls sports, which seems to lack support on its own.”
POLICY REGARDING TITLE IX OF THE EDUCATION AMENDMENTS OF 1972 – PROHIBITION OF SEX DISCRIMINATION AND SEXUAL HARASSMENT (STUDENTS)
It is the policy of the Greenwich Board of Education (the “Board”) for the Greenwich Public Schools (the “District”) that any form of sex discrimination or sexual harassment is prohibited in the Board’s education programs and activities, whether by students, Board employees or third parties subject to substantial control by the Board. The Board does not discriminate on the basis of sex in the education programs or activities that it operates and the Board is required by Title IX of the Education Amendments of 1972 and its implementing regulations (“Title IX”) and Connecticut law not to discriminate in such a manner. Discrimination or harassment on the basis of sex includes discrimination or harassment on the basis of gender identity or sexual orientation. Students, Board employees and third parties are required to adhere to a standard of conduct that is respectful of the rights of students, employees and third parties. Any student or employee who engages in conduct prohibited by this Policy shall be subject to disciplinary action, up to and including expulsion or termination, respectively
For conduct to violate Title IX, the conduct must have occurred in an education program or activity of the Board; the conduct must have occurred within the United States of America; and the complainant must be participating in or attempting to participate in the education program or activity of the Board. Conduct that does not meet these requirements still may constitute a violation of Connecticut law or another Board policy.The Superintendent of Schools shall develop Administrative Regulations implementing this Policy and in accordance with Title IX and Connecticut law (the “Administrative Regulations”).
Sex discrimination occurs when a person, because of the person’s sex, is denied participation in or the benefits of any education program or activity receiving federal financial assistance.
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 Board conditioning the provision of an aid, benefit, or service of the Board on an individual’s participation in unwelcome sexual conduct (i.e., 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 Board’s education programs or activities; 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).
Sexual harassment under Connecticut law means conduct in a school setting that 1) is sexual in nature; 2) is unwelcome; and 3) denies or limits a student’s ability to participate in or benefit from a school’s educational program. Sexual harassment can be verbal, nonverbal or physical. Sexual violence is a form of sexual harassment.
Reporting Sex Discrimination or Sexual Harassment
It is the express policy of the Board to encourage victims of sex discrimination and/or sexual harassment to report such claims. Students are encouraged to report complaints of sex discrimination and/or sexual harassment promptly in accordance with the appropriate process set forth in the Administrative Regulations. The Board directs its employees to respond to such complaints in a prompt and equitable manner. The Board further directs its employees to maintain confidentiality to the extent appropriate and not tolerate any reprisals or retaliation that occur as a result of the good faith reporting of charges of sex discrimination and/or sexual harassment. Any such reprisals or retaliation will result in disciplinary action against the retaliator, up to and including expulsion or termination as appropriate.
Any Board employee with notice of sex discrimination and/or sexual harassment allegations shall immediately report such information to the building principal and/or the Title IX Coordinator, or if the employee does not work in a school building, to the Title IX Coordinator.
The Greenwich Public Schools administration (the “Administration”) shall provide training to Title IX Coordinator(s), investigators, decision-makers, and any person who facilitates an informal resolution process (as set forth in the Administrative Regulations), which training shall include but need not be limited to, the definitions of sex discrimination and sexual harassment, the scope of the Board’s education program and activity, how to conduct an investigation and grievance process, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. The Administration shall make the training materials used to provide these trainings publicly available on the Board’s website. The Administration shall also periodically provide training to all Board employees on the topic of sex discrimination and sexual harassment under Title IX and Connecticut law, which shall include but not be limited to when reports of sex discrimination and/or sexual harassment must be made. The Administration shall distribute this Policy and the Administrative Regulations to staff, students and parents and legal guardians and make the Policy and the Administrative Regulations available on the Board’s website to promote an environment free of sex discrimination and sexual harassment.
The Board’s Title IX Coordinator is the Deputy Superintendent. Any individual may make a report of sex discrimination and/or sexual harassment to any Board employee or directly to the Title IX Coordinator using any one, or multiple, of the following points of contact:
Deputy Superintendent, Greenwich Public Schools
290 Greenwich Avenue, Greenwich, CT 06830
Any Board employee in receipt of allegations of sex discrimination or sexual harassment, or in receipt of a formal complaint, shall immediately forward such information to the Title IX Coordinator. Students may also make a report of sexual harassment and/or sex discrimination to the U.S. Department of Education: Office for Civil Rights, Boston Office, U.S. Department of Education, 8th Floor, 5 Post Office Square, Boston, MA 02109-3921 (Telephone (617) 289-0111).
Students may also make a report of sexual harassment and/or sex discrimination to the Connecticut Commission on Human Rights and Opportunities, 450 Columbus Boulevard, Hartford, CT 06103-1835 (Telephone: 860-541-3400 or Connecticut Toll Free Number: 1-800-477-5737).