State of Texas, et al. v. United States of America, et al.

Filing 1

COMPLAINT against Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang filed by State of Utah, Heber-Overgaard Unified School District (AZ), Harrold Independent School District (TX), State of Texas, State of West Virginia, Arizona Department of Education, State of Alabama, State of Oklahoma, State of Georgia, Paul LePage, State of Wisconsin, State of Louisiana, State of Tennessee. (Filing fee $400; Receipt number 0539-7604002) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: #1 Cover Sheet, #2 Exhibit(s), #3 Exhibit(s), #4 Exhibit(s), #5 Exhibit(s), #6 Exhibit(s), #7 Exhibit(s), #8 Exhibit(s), #9 Exhibit(s), #10 Exhibit(s), #11 Exhibit(s), #12 Exhibit(s), #13 Exhibit(s), #14 Exhibit(s), #15 Exhibit(s), #16 Additional Page(s)) (Nimocks, Austin)

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ARIZONA
DEPARTMENT OF EDUCATION

Supersedes 3/04

HR-20 (A)

1

GUIDELINE &
PROCEDURE
SUBJECT:

SEX DISCRIMINATION AND SEXUAL HARASSMENT
FOR STUDENTS IN STATE-OPERATED SCHOOLS

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PURPOSE OF THIS GUIDELINE

All schools operated by state agencies are committed to creating and maintaining a learning
environment in which all individuals are treated with respect and dignity. Each student has the
right to learn in an environment free of sex discrimination and sexual harassment. Sex
discrimination and sexual harassment violate federal and state law, and will not be tolerated.
Title IX of the Education Amendments of 1972 and the federal regulations implementing the law
prohibit discrimination on the basis of sex in any education program or activity receiving federal
financial assistance. This policy has been enacted by the Arizona Department of Education to
ensure that students in state operated schools have a prompt and equitable mechanism for filing
complaints related to sex discrimination or sexual harassment, in compliance with federal law.
This guideline is intended to coordinate with the existing Title IX grievance procedures that have
already been established by many of the agencies covered by this guideline. This guideline
provides a review procedure that students may utilize after the existing procedures at their school
have been exhausted. This guideline also provides a Title IX grievance procedure for students
attending state-operated schools that do not already have one, as well as a mechanism for
students to follow if they are challenging a state-wide guideline or decision they believe
discriminates on the basis of sex. This guideline further advises employees and staff of stateoperated schools of their responsibilities to refrain from discriminatory conduct and to act
promptly to stop sex discrimination or sexual harassment when it occurs.
II. GUIDELINE
Sex discrimination and sexual harassment, whether verbal, physical, or environmental, is illegal
and will not be tolerated. The law views sex discrimination and sexual harassment as a violation
of a person’s civil rights, just like discrimination on the basis of race, national origin, religion or
disability. Sexual harassment, which is a form of sex discrimination, can contribute to a general
atmosphere where members of the victim’s sex suffer the consequences and in which all students
may feel that their safety is compromised. Sexual harassment has no legitimate educational
purpose. Retaliation against a person who has filed a sex discrimination complaint or cooperated
in an investigation is also illegal and a violation of this guideline.
Educators and staff in state-operated schools have a duty to ensure that they do not discriminate
on the basis of sex and to avoid language or behavior that could be construed as sexual

EXHIBIT N

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Section: Human
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harassment. If educators or staff witness discriminatory behavior or receive a complaint alleging
sex discrimination, they should immediately report it to their supervisor or the agency’s Title IX
Coordinator so that the state agency can promptly and appropriately respond to the situation. In
certain circumstances, it may be necessary for staff to act immediately in order to stop continuing
harassment or discriminatory behavior. THIS GUIDELINE IN NO WAY AFFECTS OR
CHANGES STAFF’S RESPONSIBILITIES TO REPORT SUSPECTED CASES OF CHILD
SEXUAL ABUSE OR OTHER CRIMINAL CONDUCT TO THE POLICE, CHILD
PROTECTIVE SERVICES, OR OTHER AUTHORITIES.
I.

DEFINTIONS AND STATEMENT OF PROHIBITED CONDUCT
There are basically three kinds of sex discrimination that are prohibited by law and this guideline:
treating a person differently on the basis of sex, discriminatory policies and sexual harassment.
Although these definitions are meant to provide a general understanding of the legal requirements,
whether or not sex discrimination has occurred depends on the specific facts involved in each case.
A. Differential Treatment
Treating an individual (or class of individuals) differently because of that person’s sex is a
form of unlawful sex discrimination. As an example, it would be unlawful to discourage a
female student from taking a course about computers based on the assumption that males are
more technically adept than females, or to discourage a male student from taking a course
about early childhood education based on the assumption that females are better caretakers of
young children than males.
B. Discriminatory Guidelines
Enacting guidelines or utilizing administrative procedures that have a discriminatory effect on
the basis of sex is also a form of sex discrimination. As an example, it would be unlawful for a
state-operated school to offer sports programs only for boys and not offer sports for girls. It is
not, however, discriminatory for a school to offer separate housing, toilet, athletic and other
facilities on the basis of sex, so long as the facilities provided to each sex are comparable.
C. Sexual Harassment

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Sexual harassment is unwelcome behavior of a sexual nature by peers, teachers, administrators,
or anyone a student must interact with in order to pursue school activities. Sexual harassment
can consist of unwelcome advances, requests for special favors, and any other verbal, written,
visual or physical conduct of a sexual nature. Although it is difficult to fully define sexual
harassment because so much depends on the individual case, below are some general guidelines.
1. Sexual harassment can occur if a student is put in a position of having to bargain or
exchange sexual favors in order to receive a benefit or avoid a negative consequence. For
example, it would be illegal for a teacher to tell a student that the student must submit to
sexual conduct in order to avoid a bad grade on a test.
2. Another type of sexual harassment can occur when unwelcome jokes, comments or visual
displays of a sexual nature create a hostile environment or substantially interferes with a
student’s ability to learn. For example, if a physical education teacher repeatedly made
remarks about students’ bodies whenever students changed clothes in a locker room, that
conduct would likely create a hostile environment and be considered unlawful sexual
harassment.
3. Both boys and girls can be victims of sexual harassment. Both boys and girls, as well as
men and women, can be considered the harasser. The victim and harasser do not have to
be of the opposite sex. Sexual harassment between people of the same sex is just as
detrimental and just as illegal as when the victim and harasser are of the opposite sex.
4. The harasser does not have to be the victim's teacher. Sexual harassment can occur
because of the words or other actions of other students, or other staff at the state-operated
school.
5. The victim does not have to be the person to whom the unwelcome sexual conduct is
directed. The victim also may be someone who is affected by such conduct when it is
directed toward another person.
6. Sexual harassment does not depend on the victim's having suffered a concrete injury as a
result of the harasser's conduct. For example, improper sexual advances which do not
result in the loss of some educational benefit to the victim may still constitute sexual
harassment.

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7. A victim of sexual harassment is not required to tell the harasser that the conduct is
unwelcome.
D. Retaliation
The Arizona Department of Education and the state-operated schools covered by this guideline
will not retaliate or permit retaliation against an individual who makes a report of sex
discrimination or sexual harassment. Retaliation is a serious violation of this guideline. Unlawful
retaliation includes taking some kind of negative action against students or staff who file a
complaint pursuant to this guideline, or assist in the investigation process. Retaliation not only
harms the individuals directly affected by it, but also undermines the confidence of other students
in a fair complaint resolution process. Any person found to have retaliated against another
individual involved in an investigation of sexual harassment shall be subject to appropriate
disciplinary action, up to and including dismissal from employment or student discipline, in
accordance with the guidelines of the state-operated school.
II.

INDIVIDUALS COVERED BY THE GUIDELINE

This guideline applies to students attending schools operated by Arizona state agencies, for
which ADE receives and passes through federal funds for the operation of an education activity
or program. As of March 2004, students attending schools operated by the following state
agencies are covered by this guideline:
Arizona Department of Corrections
Arizona Department of Juvenile Corrections
Arizona State Hospital
Arizona State Schools for the Deaf and Blind
Arizona State Prison Complex
The prohibitions against sex discrimination described above apply to all teachers, teaching
assistants, coaches, administrators, contract employees, guest speakers, volunteers, janitorial or
cafeteria staff, and students of state-operated schools.
This guideline does NOT apply to all students in the State of Arizona, but only to those students
attending state-operated schools. Students who attend school district schools, accommodation

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schools or charter schools should utilize their own school’s guidelines and procedures for filing
sex discrimination and sexual harassment complaints.
IV.

INFORMAL RESOLUTION PROCEDURES
Sometimes problems of sex discrimination and sexual harassment may be resolved informally.
Informal resolution may include talking or writing to the person who has taken the action that
you believe is discriminatory. However, no law requires a student to try to resolve a problem
informally before filing a formal complaint or taking legal action. In the case of sexual
harassment, failure to express unwelcomeness to the harasser does not prevent a student from
filing a complaint.
A student may report the incident of sex discrimination or sexual harassment to a teacher,
administrator or counselor, but is not required to do so. If a teacher or other school employee
does receive a report of sex discrimination or sexual harassment, however, that person must
report it to the school’s Title IX Coordinator, or to ADE’s Title IX Coordinator, within three (3)
business days so that appropriate investigation and action may be taken.

V.

FORMAL COMPLAINT PROCEDURES

A. Confidentiality
Confidentiality will be maintained throughout the entire investigatory process to the extent
practicable and as permitted by law. The Family Educational Rights Privacy Act (“FERPA”)
will be followed if students’ educational records are reviewed or disclosed during an
investigation. While every effort will made to ensure that information is provided only to people
who have a need to know it, students should also be aware that the law imposes obligations to
report cases of suspected child sexual abuse or other criminal conduct to the authorities. Nothing
in this guideline does, or can, change these reporting obligations imposed by Arizona law.
B.

Procedures for Students Attending State Operated Schools That Have an
Existing Title IX Grievance Procedure.

Some state-operated schools already have a designated Title IX Coordinator and have established
a procedure for students to use to file complaints regarding sex discrimination and sexual

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harassment. Information as to who the Title IX Coordinator is and how you should file a
complaint should be readily available at your school.
If your school has such a procedure, you should follow it through to its conclusion. While you
may notify the ADE Title IX Coordinator about your Complaint of sex discrimination or sexual
harassment, in almost all cases the ADE Title IX Coordinator will allow the administrators at
your school to investigate the complaint and attempt to resolve it.
Right to Appeal
If you are dissatisfied with the investigation or resolution of your Complaint of sex
discrimination or sexual harassment conducted by your school, you may appeal in writing to the
ADE Title IX Coordinator within ten business days of receiving written notice of the outcome of
the investigation. Your appeal must state the particular reasons why you believe the school’s
resolution of the matter was incorrect. You may contact the ADE Title IX Coordinator in writing
or by phone at:
ADE Title IX Coordinator/Human Resources Director
Arizona Department of Education
1535 West Jefferson Street, Bin #9
Phoenix, Arizona 85007
[phone]
[e-mail]

Although you do not have to send a copy of your appeal to your school’s Title IX Coordinator,
doing so will help ADE review your appeal in a timely manner. The ADE Title IX Coordinator or
his/her designee will request information from the school, review your appeal and then notify you
of the outcome within ten (10) business days of receiving the necessary information from the
school. If additional time is needed to consider the appeal, the parties will be so advised and
given an alternative time frame, not to exceed 45 days from the date the appeal was received by
ADE.
Please note that ADE may not be in a position to require the school to impose disciplinary
conduct on a particular individual. However, ADE will give full and impartial consideration to
any appeals filed and will take actions necessary and appropriate to remedy instances of sex
discrimination or sexual harassment.

ARIZONA
DEPARTMENT OF EDUCATION

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Supersedes 3/04

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SUBJECT:

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Procedures for Students Attending State Operated Schools That DO NOT Have an
Existing Title IX Grievance Procedure.

If your school does not already have a Title IX procedure for filing and investigating complaints of
sexual harassment or sex discrimination, you should follow these steps to file a Complaint.
Form of Complaint. Complaints of sex discrimination and sexual harassment will be accepted in
writing or orally. You may file a Complaint or request a Complaint form by contacting:
ADE Title IX Coordinator/Human Resources Director
Arizona Department of Education
1535 West Jefferson Street, Bin # 9
Phoenix, Arizona 85007
[phone]
[e-mail]
A complaint need not be made on an official form in order for the ADE Title IX Coordinator to
accept it, however.

Content of Complaint. A Complaint alleging sex discrimination or sexual harassment should
include the following information: your name, a description of the offending behavior-including
times, places, and the name of or identifying information about the alleged perpetrator, and the
names or descriptions of any witnesses to the conduct. If you have written documentation
supporting your claims, that should be included as well.
Processing of Complaints. The ADE Title IX Coordinator or his/her designee is responsible for
overseeing the processing of sex discrimination and sexual harassment complaints.
1.

Investigator. After receiving a complaint of sex discrimination or sexual
harassment, the ADE Title IX Coordinator shall conduct, or appoint someone to
conduct, an investigation of the complaint. Depending on the circumstances, the
ADE Title IX Coordinator may appoint an administrator at your school to conduct
the investigation.

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Timing – Interview of Person Filing Complaint. Specifically, the Title IX
Coordinator or his/her designee shall contact the person filing the Complaint
within five (5) business days after ADE receives the Complaint. The Title IX
Coordinator or his/her designee will attempt to arrange a telephonic or in-person
interview with the person filing the Complaint within ten (10) business days after
receiving the Complaint. Students who are being interviewed as part of an
investigation have the right to have their parents or another adult present at the
interview.
Objectivity. The complainant is entitled to an investigation conducted by an
impartial investigator. Thus, if the people charged with overseeing or
investigating sexual harassment complaints are implicated in the complaint, or
have any personal or professional stake in the process that would cause a conflict
of interest, the Title IX Coordinator shall conduct the investigation and make
findings or shall designate someone impartial to do so.
Investigation Process. The ADE Title IX Coordinator or his/her designee will
interview witnesses and gather relevant documentation to decide whether or not
sex discrimination or sexual harassment occurred. The complainant and/or the
alleged harasser may have a representative present during any interviews
conducted. In determining whether alleged conduct constitutes sex
discrimination or sexual harassment occurred, the totality of the circumstances,
the nature of the conduct and the context in which the alleged conduct occurred
will be considered. Allegations of sexual harassment will be evaluated using a
preponderance of the evidence standard-that is, before imposing any sanctions the
Title IX Coordinator or his/her designee must conclude that it is more likely than
not that the harassment occurred.
Timing – Concluding the investigation. Within 30 days of receiving the
complaint, the ADE Title IX Coordinator or his/her designee shall make a finding
of whether sex discrimination and/or sexual harassment occurred. However, if
the Title IX Coordinator or his/her designee believes that more time will be
necessary, the Coordinator will advise the parties as to when the Coordinator
expects to complete the investigation and will attempt to do so within 60 days of
receiving the complaint.
Notice of Outcome. Within five (5) business days after concluding the
investigation, the ADE Title IX Coordinator or his/her designee shall notify the
parties to the proceeding of his/her findings about whether or not sex
discrimination or sexual harassment occurred.

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DEPARTMENT OF EDUCATION

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Appeals. A party who is dissatisfied with the investigation or resolution of an
allegation of sexual harassment may appeal in writing to the ADE Title IX
Coordinator or the Deputy Superintendent of Public Instruction within ten (10)
business days of receiving written notice of the outcome of the investigation. The
Deputy Superintendent of Public Instruction can be contacted by writing to:
Arizona Department of Education, Deputy Superintendent of Public Instruction,
1535 West Jefferson Street, Phoenix, Arizona 85007. The party must specify the
particular grounds upon which the appeal is based. The Title IX Coordinator or
Deputy Superintendent of Public Instruction will respond to the appeal within ten
(10) business days. If additional time is needed to consider the appeal, the parties
will be so advised and given an alternative time frame, not to exceed 30 days from
the date the appeal was received by ADE.

SANCTIONS
Students or staff members of state-operated schools who have engaged in sex discrimination and
sexual harassment shall be disciplined appropriately, up to and including employee discharge or
student discipline in accordance with the guidelines of the state-operated school.

VII.

OTHER LEGAL REMEDIES

Although students are encouraged to utilize the procedures set forth above, victims of sex
discrimination or sexual harassment may also file a complaint with an appropriate government
agency, such as the Office for Civil Rights within the U.S. Department of Education, or file a
grievance under the relevant collective bargaining agreement or, where allowed, file a civil
lawsuit.

ARIZONA
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ROUTED TO AND READ BY:
Signature (no initials)

Date

Signature (no initials)

Date

ARIZONA
DEPARTMENT OF EDUCATION

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Section: Human
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