Nondiscrimination in Education Programs
(1) For the purposes of this rule:
(a) "Discrimination" or "discriminate" is defined as any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on race, color, national origin, religion, sex, age, disability, veterans' status, sexual orientation, or marital status.
(b) "Community College" is defined as any program or service operated by a community college or community college district.
(c) "Commissioner" means the Commissioner of the Department of Community Colleges and Workforce Development, or a person designated to act in his or her capacity.
(d) "Department" means the Department of Community Colleges and Workforce Development.
(2) No person in Oregon shall be subjected to discrimination in any Community College activity.
(3) Subject to exemptions granted by state or federal law, no person in Oregon shall be subject to discrimination in any terms or conditions of employment at any Community College. Every Community College shall develop and implement a nondiscrimination plan. Such plan shall be submitted to the Department at the time personnel policies are filed under OAR 589-008-0100.
(4) In providing education programs, services, or activities to students, a Community College shall not discriminate by:
(a) Treating one student differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(b) Providing different aid, benefits, or services; or providing such aids, benefits, or services in a different manner;
(c) Denying any student such aid, benefit, or service;
(d) Subjecting any student to separate or different rules or behaviors, sanctions, or other treatment;
(e) Aiding or perpetuating discrimination by joining or remaining a member of any agency or organization which discriminates in providing any aid, benefit, or service to students or employees;
(f) Otherwise limiting any student in the enjoyment of a right, privilege, advantage, or opportunity.
(5) A Community College shall not discriminate when providing any course or otherwise carrying out any of its educational programs or activities, or requiring or refusing participation therein by any of its students:
(a) This section does not prohibit grouping of students in any educational program or activity by ability as assessed by objective standards of individual performance.
(b) This section does not prohibit separating students by sex within physical education courses or activities, or during participation in sports in which the purpose or major activity involves bodily contact.
(6) Community Colleges shall not discriminate in offering housing facilities to students, except that:
(a) Separate housing may be provided for men and women; and
(b) Available housing of comparable quality may be divided between men and women on the basis of the number of applications for housing of each sex.
(7) Community Colleges shall not discriminate in providing financial assistance to applicants or students. However, Community Colleges are free to determine the total amount or types of assistance that will be granted and may place reasonable limitations on eligibility for assistance coming from any particular source. Community Colleges may not assist any person, organization or group in the administration of financial aid on a prohibited basis. Community Colleges shall comply with the implementing regulations of Title IX of the Education Amendments of 1972, with respect to administration of sex-restricted scholarships. Community Colleges that award athletic scholarships must ensure that reasonable opportunities exist for members of each sex to participate on athletic teams.
(8) A Community College that actively assists any agency, organization, or person in making employment available to any of its students shall not assist prospective employers known by the Community College to discriminate in their recruitment, hiring, or employment practices.
(9) A Community College or any of its agents, including student groups, may not discriminate in offering to students a medical, hospital, or accident policy, plan, benefit, or service. However, Community Colleges may offer a benefit or service even though it is not used by the same proportion of students of one group as of another. When full coverage health services are provided, basic gynecological care shall be provided.
(10) The Commissioner may issue written interpretations concerning rules for nondiscrimination upon the written request of parties to a complaint at the Community College level.
(11) Community Colleges shall adopt written procedures for the prompt resolution of complaints of discrimination. A grievant may, after exhausting grievance procedures at the Community College level, or 90 days if no final decision has been made by the Community College, appeal in writing to the Commissioner. On receiving a written appeal the Commissioner shall send a copy of the complaint to the President of the Community College to which the complaint applies. The Commissioner shall request the Community College to provide within ten days:
(a) A copy of the Community College's grievance procedures for hearing complaints of discrimination;
(b) A copy of all documents concerning the complaint and the Community College's record of the grievance proceeding;
(c) A copy of the Community College's written decision;
(d) The Community College's position concerning any issues raised by the appeal; and
(e) Any other information the Community College considers relevant.
(12) After receiving the Community College's response, if the Commissioner determines that the person filing the appeal has not exhausted all Community College grievance procedures or that 90 days have not elapsed since the Community College received the complaint, the Commissioner shall notify the complaining party and the Community College that the Commissioner will take no action at this time. If the Commissioner determines that the person filing the complaint has exhausted Community College grievance procedures or that the Community College has not issued a final decision and more than 90 days have elapsed since the Community College's receipt of the complaint, the Commissioner shall make a determination as provided under section (15) of this rule.
(13) The Commissioner shall review the hearing record to determine the following:
(a) Whether the Community College followed its grievance procedures appropriately;
(b) Whether the Community College's findings are supported by facts and information in the record;
(c) Whether the Community College engaged in any action that constitutes discrimination.
(14) The Commissioner shall consult the Department of Justice for advice if the appeal raises legal issues.
(15) Following review of the record, the Commissioner shall:
(a) Issue an order of dismissal of the appeal upon a finding that the Community College properly followed its procedures and that no substantial evidence exists to support the charge of discrimination;
(b) Recommend mediation if both parties are willing to participate in mediation;
(c) Remand the complaint to the Community College for prompt resolution if the Commissioner finds that the Community College has not followed its grievance procedures appropriately or that there are remaining factual issues that could be best resolved by the Community College;
(d) Issue an order with findings that the Community College has engaged in discrimination; or
(e) If the review indicates problems with the Community College's grievance procedure or its application of that procedure, require the Community College to submit a corrective action plan that addresses the deficiencies identified by the Commissioner within 30 days of the issuance of the Commissioner's order.
(16) The Commissioner shall enter an order in writing within 30 days of the filing of the appeal unless both parties agree to extend the time or the Commissioner finds there is good cause for an extension of time. Should the Commissioner find that an extension of time is warranted, notice of the allowed extension of time shall be delivered to all the parties within 30 days after the appeal was filed.
(17) If the Commissioner finds that the Community College has engaged in discrimination, the Commissioner shall require the Community College to submit a corrective action plan within 30 days of the issuance of the Commissioner's order. The corrective action plan should be designed to assure that the Community College corrects any discrimination that has occurred and that the Community College has taken reasonable steps to assure that the discrimination will not reoccur.
(18) If a Community College fails to submit a corrective action plan or fails to carry out the terms of its corrective action plan, the Commissioner shall consider the following sanctions:
(a) Withholding of state funding or
(b) Other remedies within the Commissioner's discretion.
(19) The Commissioner shall review the corrective action plan to ensure that it meets the requirements of the Commissioner's order, and under appropriate circumstances, the Commissioner may request additional information, conduct an on-site inspection, or take other appropriate action to ensure that the Community College has fully complied with the Commissioner's order and the corrective action plan.
(20) The Commissioner shall keep the State Board of Education informed of any pending discrimination appeals and shall report to the State Board of Education any final orders issued by the Commissioner at the next regular meeting following issuance of the Commissioner's order.
Stat. Auth.: ORS 659.850
Stats. Implemented: ORS 659.850, ORS 659.855 & ORS 659.860
Hist.: 1EB 260, f. 3-3-77, ef. 3-5-77; EB 14-1991, f. & cert. ef. 7-19-91; Renumbered from 581-043-0115, 581-043-0116, 581-043-0118 & 581-043-0119; EB 24-1995, f. & cert. ef. 9-18-95; DCCWD 1-2001, f. & cert. ef. 3-21-01, Renumbered from 581-043-0900; DCCWD 5-2002, f. & cert. ef. 11-13-02; DCCWD 5-2003, f. & cert. ef. 10-20-03