IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DOE I, eta!.,
v.
Plaintiffs,
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)
)
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THE SCHOOL DISTRICT OF THE )
CITY OF ALLENTOWN )
(a/k/a "Allentown School District.,), eta!., S
Defendants.
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
v.
THE SCHOOL DISTRICT OF THE
CITY OF ALLENTOWN,
Defendant
)
l
)
)
)
)
)
)
)
)
)
Civil Action No.:
Consent Decree
CONSENT DECREE
Pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1688
(''Title IX"), Plaintiff-Intervenor United States initiated an investigation into allegations made by
Private Plaintiffs John Doe ("Private Plaintiffs'') in the above-captioned lawsuit that students in
' .. the Allentown School District ("ASD'' or "District") were subjected to harassment
during the 2003-2004 school year.
After completing its investigation into the allegations raised in Private Plaintiffs' Second
Amended Complaint, in July 2009, the United States intervened in Private Plaintiffs' lawsuit,
asserting a Title IX claim against the District for failing to stop the sexual harassment of Private
Plaintiffs and for the creation and continued existence of a postile environment for ASD
students. Intervenor Complaint, ECF No. 140 (July 10, 2009). The United States' complaint
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alleged that during the 2003-2004 year, peer-on-peer sexual harassment was severe,
pervasive, and persistent in ASD and interfered with students' educational opportunities, creating
a hostile environment in the District; ASD knew or reasonably should have known of the
harassment and failed to take immediate and appropl'iate responsive action to stop fue
harassment and eliminate the hostile environment; and ASD has since failed to remedy the
sexual harassment and prevent against future instances of sextml harassment as required by:
Title IX; the Title IX implementing regulations, 34 CFR 1 06.8, 106.9 (1975); and the 2001
Revised Sexual Htu:assment Guidance issued by the United States Department of Education,
Office for Civil Rights ("OCR'').
1
Revised Sexual Harassment Guidance: Sexual Harassment of
Students by School Employees, Other Students or Third Parties, available at
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html (notice as 66 Fed. Reg. 5,512 (Jan.
19, ('
4
0CR Guidance").
The United States and ASD have conferred in good faith and .negotiated the terms of this
Consent Decree to resolve the United States' claims against the District. This Consent Decree is
entered in full and final settlement of the claims alleged in the United States' Complaint-in-
Intervention. After reviewing the terms of this Consent Decree, the Court finds fuem to be fait,
just, reasonable, and consi&'tent with the requirements of Title IX. ASD and the United States
agree that the entry of this Consent Decree, without :fi.uther litigation, is in the public interest and
agree to all and below.
1
The 2001 Revised Sexual Harassment Guidance was supplemented in2011 adding "additional
guidance and practicaJ. examples regarding theTitle IX requirements as they relate to sexual
violence," and the District also has failed to implement policies and procedures in accordance
with that supplement. OCR Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), at 2..
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ACCORDINGLY, TilE COURT ORDERS, ADJUDGES, AND DECREESc
I. JURISDICTION AND VENUE
A. This Cotu't has jurisdiction over the subject matter herein pursuant to 28 U.S.C.
1331 and 1345 as well as 20 U.S.C. 1681-1688. The United States' Complaitlt-in-Intervention
stated claims upon which relief may be granted against ASD.
B. Venue in the Eastern District of Pennsylvania is proper pursuant to 28 U.S.C.
139l(b).
II. DEFINITIONS
A. . "Sexual hamssment,u a form of sex-based harassment, is defined to include sexual
harassment,. sexual abuse, sexual assault, sexual violence, sexual deviancy, sexually
inappropriate contact, and inappropriate touching and, as such, shall include unwelcome verbal,
visual, or physical conduct of a sexual nature; rape; attempted rape; intimidation, bullyiJ1g or
coercion of a nature (conduct need not be physical); unwelcome or inappropriate sexual
advances; .non-consensual, forced physical sexual behavior; nonconsensual kissing and fondling;
exposure of genitalia; voyeurism; exhibitionism; sexually suggestive .statements or demands; the
use of a position of trust to compel otherwise unwanted sexual activity with or without physical
force; the forcitlg of undesired sexual behavior by one person upon another; asSa.ult of a sexual
nature on another person; or any sexual act committed without consent.
B. A "hostile environment'' exists when harassment is su:ffioiently severe,
persistent, or pervasive to interfere with or limit one or more students' ability t.o participate in or
benefit from the education program.
C. "Education program" includes, without limitation,-all ASD schools, facilities,
property, and events.
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D. The terms "parent'' or "parents" mean a student's parent, guardian, or other
person in parental or custodial rehitionship to the student
E. "ASD Personnel'' means all District central office and school adminisb.'ators and
employees, including but not limited to principals, assistant principals, counselors, psychologists,
nurses, faculty, teachers, permanent and temporary staff, contractors (including police offtcets)
who have regular interaction" with ASD students, and substitute teachers.
F. "Discipline?' and "disciplinary action" mean actions taken by ASD to
.address student behavior consistent with District policy as set forth in its Comprehensive
Suspension Program, School-Wide Positive Behavioral Strpport System, and infractions 'and
consequences contained in the ASD Official Code of Conduct C'Code of Conduct"), Code of
. Conduct at ii, 1, & 13 (20 11 ), and. the ASD Student Discipline Policy, see Allentown School
District Policy # 218 (20 11 ). Such action.'3 include but are not limited to reprimand by ASD
Personnel> office referral, in"school or detention, and expulsion.
G. "Equity Coordinator" means a person designated by to coordinate its anti-
discrimination and harassment efforts, including but not limited to its efforts to comply with and
carry out its Title IX. responsibilities io, among other things, conduct of sexual
harassment complaints as set forth in Title IX, the Title IX implementing regulations, and the
OCR Guidance. See 34 CFR 1 06.8(a) (requiring federal fund recipients, including school
districts, to at least one employee to coordinate its efforts to comply with and cal'ry
out under the regulations).
H. and "interview notes" mean written, or otherwise recorded, material
memorializes observations and interviews of witnesses, the harassed student, and the alleged
harasser(s) during a sexual harassment investigation.
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I. The term "policies and procedures" includes any WI'itten or unwritten practice,
guidance, protocol, directive, mandate; mle, l'egulation, plan, guidelitte, progratn, or process that
involve sexual harassment.
J. The terms "complaint'' and "allegation,'' unless used in reference to Private
Plaintiffs! Complaint, Second Amended Complaint, or Third Amended Complaint, mean an
assertion, grievance, report or statement alleging sexual harassment, whether formally filed or
informally communicated and whether communicated in writing or orally.
K. The te1m
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'monitor and supervise" shall mean to observe. watch, keep t:tack of,
and check continually for purposes of maintaining full awareness of the activities that occur
within the District's education program and preventing incidents of sexual harassment.
Ill. . BACKGROUND
A. ASD is the entitY that administers educational services for all students emolled in
the District schools.
B. ASD is legally responsible for the operation of all of the 'schools in the District,
and for the conditions therein.
C. ASD is a recipient of federal financial assistap.ce and is therefore subject to Title
IX and its implementing regulations, 34 C.F.R. 106.31.
D. ASD currently serves almost 18,000 students in sixteen eleme11tary schools, four
middle schools, and two high schools.
E. The United States Department of Justice ("United States") enforces Title IX in
federal courts by intervening, as amicus curiae, or filing a Statement of Interest in
existing suits between private litigants, or upon referral from OCR. 20 U.S.C. 1682; Exec.
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Order No. 12,250,45 Fed. Reg. 72,995 (1980); 28 C.F.R. 0.51 (1998), 28 U.S.C. 517,518
(1966, 1992).
F. Private Plaintiffs filed suit against the District and numerous other defendants-
individual ASD administrators and employees, the Lehigh Valley Hospital and individual
employees, and the student harasser and his parents (colle.ctively, "Defendants")- alleging, inter.
alia, that (1) a 12-year"old fifth-grade student sexually harassed and assaulted four six-year-old
first-grade students on four separate occasions at Central Elementary School in the District
during the 2003-2004 school year, (2) the sexual harassment was c'severe, persistent, and
pervasive/' thereby depriving Private Plaintiffs of access to educational opportunities, (3) the
District had actual knowledge of the sexual harassment, and ( 4) the District yvas deliberately
.
indifferent to the sexual harassment. Complaint at 19-21,26-29, ECF No. 1 (MayS, 2006);
. .
Amended Complaint at 21 H24, 0, ECF No. 5 (Au,g. 28, 2006); Second Amended Complaint
at ECF No. 118 (Mar. 9, 2009).; and Third Amende4 Complaint at 11-21, ECF No. 233
(Aug. 3, 2011 ). Private Plaintiffs alleged that each incident of sexual harassment was reported to
ASD administrators immediately after it occurred, but ASD did not take appropriate action to
address the harassment and prevent fhturc incidents of sexual harassment from occurring. Id
G. Private Plaintiffs first-pled suit on behalf of John Doe I on May 5, 2006.
Complaint, ECF No. 1. Private Plaintiffs pled violations of, inter alta, the Due Process Clause
(bodily integrity and state-created danger) an.d Equal Pl'otection Clause (based on race,
socioeconomic status, and age) of the Fourteenth Amendment of the United Constitution;
. .
the Civil Rights Act of 1871 (Section 1983), 42 U.S.C. 1983; and several state law provisions.
ld at 30-81, Private Plaintiffs amended their complaint on August 28, 2006, to include minors
now identified as John Doell and John Doe TIL Amended Complaint, ECF No. 5. On
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September 24, 2007, this Court dismissed Private Plaintiffs' Equal Protection claims and r i o ~ s
other claims. Memorandum and Order at 2, ECF No. 79 (Sept. 24, 2007). The Court denied
Defendants' motions to distniss the Due Process and Section 1983 olaim_s, and denied
Defendants' qualified immunity defense. Id. On March 9, 2009, this Court entered Private
Plaintiffs' Second Amended Complaint, amended to assert a Title IX cause of action and to add
the fourth John Doe (John Doe N) as. a plaintiff party. Second Amended Complaint, ECF No.
118.
H. On July 10,2009, the United States intervened Jn this lawsuit, and alleged and
continues to allege as follows: (1) Private Plaintiffs were six and seven years old in the 2003-
2004 school year and were in the first and second grade at Central Elementary School in the
District; (2) on at least five separate occf1ions, the Private Plaintiffs were sexually assaulted, a
form of. sex" based harassment, in the boys' bathrooms at Central Elementary School; (3) the
Distl'ict was made aware of each incident immediately after it occurred, and despite this, the
District did nqt take appropriate action - and in some circumstances, took no action - to prevent
the harassment from occurring again; (4) both prior to and since the sexual hru:assment endured
by Private Plaintiffs in the 2003w2004 school year, the District failed and continues to fail to
adopt and implement adequate and effective sexual harassment policies and procedures, as
required by Title IX and its implementing regulations; and (5) had the District adopted and
implemented such policies and procedures, the District would have prevented (a) the sexual
harassment of the Private Plaintiffs and other students in the District, (b) the creation and
continued existence of the hostile environment, ( o) and the deprivation of educational
opportunities for the students who were subject to severe, pervasive and persistent sexual
harassment.
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I. Dudng the course of fact discovery in this case, Private Plaintiffs and PlaintiffH
Intervenor United States identified at least three additional students who were sexually harassed
at Central Elelllentary School during the 2003-2004 school year by the same student.
See Motion for Permissive Joinder of an Additional Party Plaintiff and Leave to File a Third
Amended Complaint at 5, ECF No. 228 (July 13, 2011). On 2011, Private Plaintiffs'
Third Amended Complaint was entered by this Court, adding one of the three additional
students, now lmown as. John Doe V, asa plaintiff party. Third Amended Complaint, ECF No.
233.
J. ASD denies all allegations made against it by the United States and Private
Plaintiffs. Nonetheless, the United and ASD recognize that there is benefit to the
expeditious resolution of the allegations raised by the United States .in this case and so agree to
the terms of this Consent Decree.
IV. GENERAL REQUIREMENTS
A. Pl.usuant to the terms of this Consent Decree, the District will take reasonable and
appropriate action to prevent, address, and eliminate sexual hata8sment in education programs
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and nctivities at every ASD school. See 20 U.S.C. 168l(a) and OCR Guidance. To
accomplish ASD shall revise its existing policies and procedures that adch'ess, in pertinent
part, sexual harassment; appropriately and immediately respond and address all conduct that may
sexual harassment; fully investigate reported ineidents that may constitute sexual
haraSsment; escalate remedial efforts by instituting additional measures when students are
sexually harassed on a repeated basis, including but not limited to when one student repeatedly
sexually harasses other students or when oue student is repeatedly sexually harassed.; and
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mitigate the effects of sexual harassment that occurs. The District shall take proactive measures
to eliminate the hostile environment that arises from and/or contributes to sexual harassment.
B. ASD shall select qualified District and Based Equity CoordinatOl's, see
infra at V.C.; develop an ASD Sexual Harassment Policy that includes policies and procedures
regarding sexual monitoring and supervision, and receipt, investigation, and
resolution of incidents and complaints of sexual harassment, infra at V.B.; cteate a sexual
harassment reporting system, see infra at V.F.; develop procedures to identifY, monitor, and
supervise students with a confirmed history of sexual harassment toward other students, see infra
at V .E.l.; provide sexual harassment training, professional development, and outreach fqr ASD
Personnel, students, and parents, see infra at V .D.; and develop proced.ures for communicating
with outside agencies that work with children who are se:x.ually abused or sexually abusive, see
i11fra at V.G .
. C. In order t? implement the tenns Consent Decree, ASD will retain the
services of an independent, consultant (''Consultant") with expertise in addressing
and preventing harassment in elementary and secondary schoois. The
Consultant will not be an agent or designee of the District, the United States, or any party to this
litigation. As set forth infra at V.A., A.SD, at the recotn111endation of the United States, shall
retain the services of the Mid"Atlantic Equity_ Consortium, Inc., at 5272 River Road, Suite 340,
Bethesda, Maryland, to serve as the Consultant by April2, 2012. ASD shall work with the
Consultant to ensure ASD's compliance wilh the requirements of this Consent Decree, as
detailed ilifra at V. If, for any reason, ASD does not select Pte Equity Consortium
as the Consultant) ASD will retain the services of another independent, thit'd party to serve tl8 the
Consultant in order to implement the tetms of this Consent Decree. If ASD does not select the
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Mid-Atlantic Equity Consortium as the Consultant, ASD will provide fol' the United States'
review and approval by April 2, 2012, the name of the proposed third-party consultant with
expertise in addressing and preventing sexual harassment between students. ASD will be
responsible for any and all costs associated with the retention of the Consultant.
D. This Consei?-t Decree shall1emain in force for. at least three (3) years from the date
it is entered by this Court, see Infra at V.JJ.
V. SPECIFIC REQUIREMENTS
A. The Consultant
1, The Consultant shall have the responsibilities:
a) Draft and implement a sexual policy ("ASD
Sexual Harassment Po!icy'') by no later than June 30, 2012, see discussion trifi'a at V.B.
b) Identify physical spaces in which sexual bar.assment can occur and
reconunend procedures to that any such places are appropriately monitored.
. .
c) Designate all necessary and appropriate ASD Pet:sonnel who must be
informed of incidents and allegations of sexual harassment. see discussion infra at
V.B.l .b.ii,.
d) Advise the District on hiring or selection of the District and School-Based
Equity Coordinators who will be hired or selected by no later than the start of the 20 12-:-
2013 school year, see discussion Infra at V.C.
e) In the first year of implementation of this Consent design.and
conduct sexual harassment training and profe.o:;sional development for all ASD Personnel,
which shall include training all ASD Personnel to prevent, and report instances
of sexual harassment, see discussion infra at V.D.
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f) Train the Disuict Equity Coordinator to conduct subsequent annual sexual
harassment training and professional development for all ASD Personnel, see discussion
infra at V.D:
g) In the first year of implementation of this Consent Decree, design and
conduct age-appropriate sexual harassment training for all ASD students and sexual
harassment information sessions for interested ASD parents, see disctJSsion infra at Y,D.
h) Train the District Equity Coordinator to conduct subsequent annual sexual
harassment student training and parent information sessions, see discussion infra at V.D.
i) Create policies and procedUIes for counseling, monitoring, and
supervising ASD students who have a confirmed history of sexual harassment toward
. other students consistent with FERP A and the IDEA, see discussion iriff'a at V .E.l.
j) Work with the District to determine ,appl'Opriate ways in which to
communicate with parents regarding: the ASD Sexual Harassment Policy; the steps ASD
is ~ k i n g to train its employees and instruct its students on these policies and procedures;
and to answer parent and student questions.
B. Sexual Harassment Policy
1. The ASD Sexual Harassment Policy will expressly prohibit sexual harassment in
the District's education programs consistent with the requirements of Title X ~ the Title IX
implementing regulations, and the OCR Guidance, and will also include, at minimum. the
following:
a) The definitions of sexual harassment and hostile environment set forth in
Section II of this Consent Decree.
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b) Sexual Hatassment Monitoring and Supervision requirements that inchide
the following:
i. clear and ea..'lily understood explanations and examples of student
conduct that constitutes sexual harassment and would violate the ASD Sexual
Harassment Policy; and
ii. a requirement that all necessary and appropriate ASD Personnel (to
be designated by the Consul1ant and as set forth in the ASD Sexual Harassment
Policy) will be informed of incidents and allegations of sexual harassment to
protect against future incidents of sexual harassment.
c) Sexual Harassment Complamt and Investigation Procedures that:
i. require all ASD Personnel to r ~ p o r t immediately to the Equity
Coordinators complaints and allegations of sexual harassment and any conduct
ASD Personnel may observe or hear about that might collBtittlte sexual
harassment, whether or not there has been an explicit complaint or allegation, and
to talce steps tO e ~ e that all such complaints and allegations are fully.
investigated and addressed, as directed by the ASD Sexual Harassment Poljcy;
ii. provide contact infonnation for all District and School .. Based
Equity Coordinators who are responsible fot investigating and addressing all
complaints and allegations of sexual harassment (as set forth il1fra in Section
V.C.), including their names, position titles, office addresses, telephone numbers,
and e-mail addresses;
iii. specify dmelines and processes for the immediate: 1eporting of
complaints and allegations of sexual harassment to the appropriate ASD
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Personnel; investigation of complaints and allegations of sexual harassment;
notification of parents of students involved in any incident or alleged incident of
sexual harassment; and resolution of complaints and allegations of sexual
harassment;
iv. notify parents that harassed students, witnesses to incidents of
se:lirual harassment, parents, any ASD Personnel, and any additional individual
may report sexual hatassment t.o the District orally, in writing, or by other
additional means delineated by the District;
v. establish a process to immediately notify all necessary and
appropriate ASD Personnel of incidents and alleged incidents of sexual
harassment;
vi. provide written notice to all individuals involved in the sexual
harassment or l l ~ g e d sexual harassment- when such allegations involve younger
students, notice may be provided to parents but not the students of the outcome of
the complaint investigation;
vii. provide assurance to any victim of sexual harassment that ASD
will take effective steps to prevent the recurrence of any sexual harassment and to
address sexual harassment endured by.the student(s) and-others, where
appropriate;
viii. provide assurance that they will be effective and applied fairly and
consistently to all complainants and hru:assed students;
ix. include an appeals proc.ess in which the Supel'intendent - or other
designated administrator who was not involved in the sexual harassment
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investigation- will consider all issues presented by the harassed student or the
student harasser(s) upon completion of the sexual harassment investigation should
an appeal be requested;
x. require that no complaint or allegation of sexual harassment will be
considered fully resolved unless and until these procedures are followed;
xi. require that ASD fully investigate and resolve all complaints of
sexual hal'assment regrudless of any ongoing Allentown Police Department
("AP])"} cdtninal investigation;
. xii. require that, if ASD determines that sexual harassment has
occurred, ASD must take timely, context- and age-appropriate, and effective
cmTective action to eliminate any hostile environment that has been created,
prevent further harassment, prevent retaliation (as discussed infra at V.B.l.d.) and
provide remedial measures as required by Title IX;
xii
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1. are written in clear, understandable> and age-appropriate language
accessible to students, parents, and A;SD Personnel;
xiv. are translated and for students and parents
whose :first language is not English; and
xv. shall not impair or limit the access of legal counsel or the insurance
carrier to ASD to conduct and participate in sexual harassment investigations and
shall not impait or limit the District Equity Coordinator in conducting and
participating in sexual harassment investigations.
d) A provision prohibiting retaliation by any. student ot ASD Personnel
against a complaining party) witness, or any oilier person who reports allegations of
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sexual hruassment or PJ:?Vides information to assist a sexual harassment
and informing pal'ents and students that ASD officials will not only take steps to prevent
retaliation but also will take strong "responsive action if retaliation occurs.
e) All additions and recommendations made by the Consultant,
2, The ASD Sexual Harassment Policy shall supetsede all policies, procedures, and
other relevant language regarding sexual harassment from the ASD Policy and Procedure
Reference, the Allentown School District School Board Policy ("School Board Policy"), and the
Code of Conduct (collectively, the "ASD Existing Policies''), and all ASD Existing Policies shall
be amended accordingly.
3. The District Equity Coordinator will review_ the ASD Sexual Harassment Policy
on an annual basis for the duration of this Consent Decree to ensure compliance with the Conse11t
Decree. The Consultant and the District Equity Coordinator will recommend revisions to the
ASD Sexual as needed following the annual review or as becomes necessary
for the District to fully comply with the terms of this Consent Decree and extant federal law.
Any such recommendation will be provided to the United States for review and approval in
accordance with the requirements of Section V.C.4.m. and V.H., infra. The United States shall
notifY the District of its approval or required modifications within five ( 45) days of
receiving the recommendations. The District shall notify ASD Petsonnel, students, and parents
about any such changes,
4. Procedures and Timeline for Creation and Implementation of the ASD Sexual
Harassment Policy
No later than June 30> 2012,1he District shall submit to the United States
for its review and approval the District's ptoposed ASD Sexual Harassment Policy. If
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the District disagrees with ariy of the Consultant's recommendations Ol' decisions, the
District will provide the United States with the Consultant's recomm.endations and
decisions as well as an explanation as to why the District disagrees with the Consultant's
recommendations and decisions.
b) The United States shall have forty"five (45) calendar days to review and
either approve the ASD Sexual Harassment Policy or inform ASD of its disapproval of
the proposed ASD Sexual Harassment
c) If the United StateS disapproves of the proposed ASD Sexual Harassment
Policy, the District, the Consultant, and the States will work together in good faith
to resolve any disagreements. The United States has final approval authority.
d) Following the United States' approval, ASD will adopt the ASD Sexual
Htll'assment Policy within fourteen (14) calendar days.
. e) No later than September 1, 2012, ASD will notify all of its their
parents, and ASD Personnel of the new ASD Sexual Harassment Policy by:
i. providing written copies of the ASD Sexual Harassment Policy to
all ASD parents;
ii. providing electronic copies of the ASD Sexual Harassment Policy
to all ASD Personnel;
iii. posting copies of the ASD Sexual Policy jn all scl}ool
buildings, prominently displayed in areas easily accessible to
students and ASD Personnel; and
iv. incLuding the following information on ASD's website and on each
individual school website:
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(a) an explicit statement setting forth ASD's commitment to a
school environment free from sexual harassment;
(b) a statement encouraging students to immediately report
incidents of sexual harassment and confirming that all ASD Personnel
must follow the ASD Sexual Harassment Policy for responding to all such .

(c) clear and easily understood explanations and examples of
the types of behavior that sexual harassment; and
(d) a hyperlink to the ASD Sexual Harassment Policy.
5. Once ASD adopts the ASD Sexual Hara.qsment Policy, ASD will not modify or
rescind the Policy, or adopt any additional policies that relate to or impact sexual hmassment
during the period of the Consent Decree without the prior written approval of the United States.
Tite United States may reject proposed modifications, rescissions, or adoptions :that are not
consistent with the terms or spirit of this Consent Decree or applicable federal civil rights laws.
C. District and Based Equity Coordinators
1. ASD, with the assistance of the Consultant, shall hire or appoint qualifled
individuals to serve as the Disttict and Sphool-Based Equity Coordinato!s in all
aspects of Title IX, the Title IX implementing regulations, and the OCR Guidance a.q applied to
school districts. The District-wide Equity Coordinator will serve in a full-time or full-time
equivalent capacity and may be hired or appointed from the ranks of existing ASD
administrators.
2. The District shall designate at least one administrator or .employee at each ASD
school to serve as School-Based Equity Coordinators.
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3. All Equity Coordinators will be hired, appointed, or designated based on their
interest in, previous experience with, and knowledge of, at minimum, Title IX, the Title IX
implementing regulations, and the OCR Guidance.
4. The District Equity who shall be independent of the District's legal
counsel and its insurance carrier, shall have, at minimum, the following responsibilities:
a) Investigate and resolve sexual complaints and
wlthin the time frames set forth in the ASD Sexual Harassment Policy, see discussion
supra at V.B.l.c.
b) Immediately inform: relevant and ASD Personnel- including
but not limited to the general and special education teachers, teachers, all other
teachers in the particular school; guidance counselors; school psychologists; principals;
and assistant principals - when a complaint or allegation of sexual harassment has been
1-eceived, including the nature of, and the factual circumstances that gave rise to, the
or allegation.
c) Provide or direct cmmseling and support services to students who have
been sexually hara.Ssed and, as. appropriate, to student harassers.
d) Within one (1) business day ofbecom_ing aware of an incident of sexual
harassment, notify the parents of all suspected victims of the sexual harassment as well as
the parents of the suspected sexual harasser as required by the ASD Sexuul Harassment
Policy.
e) Notify all suspected victims of sexual harassment as well as suspected
sexual harassers and their parents when the investigation has concluded, and of the
findings an.d resolution of the investigation. However, when such allegations involve
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younger the findings and may be provided to parents but not the
students. Such information shall not include any student education records, the provision
of which would violate the privacy rights ofindividual students under the Family
Educational Rights and Priyacy Act ("FERP N').
f) Recommend appropriate, fair, and equitable action for the harassing
student consistent with the District's student discipline policy and Code of Conduct.
g) Designate the ASD Persmmel responsible for administration of any
student discipline following instances of sexual harassment.
h) When required by law and where appropriate, forward complaints of
sexual harassment to outside service agencies, including but not limited to law
enforcement, see discussion 111fra at V.G.
i) . Document and maintain complete records of all sexual harassment
complaints and investigations in accordance with the Sexual Harassment Repor_ting
System, discussed infra at V.F.
j) Timely notify all ASD Personnel, and parents if revisions are
made to the ASD Sexual Harassment Policy,
k) Design, administer, and conduct all sexual harassment training,
professional developmen4 parent infonnation sessions as discussed irifia at V .D.
1) Design and administer a survey il1strument by March 1, that will
gauge parents' perceptions of effectiveness of the District's investigation and
resolution of sexual harassment COil). plaints and of transparency on the District's part in
communicatingabout sexual hal'assment and the ASD Sexual Harassment Policy. This
S':lfVey will be disseminated to ASD parents electronically and in hard copy on an annual
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basi_s for the duration of this Consent Decree. The District Equity Coordinator shall
teview and analyze the parent survey results on an annual basis and will report those
results and any proposed revisions to the ASD Sexual Harassment Policy as a result of
the survey to United States within fowteen (14) business days after completing
analysis of the survey results.
m) Review on an annual basis the ASD Sexual Harassment Policy and
.
recommend to the United States revisions to that Policy in. accordance with Section
V.B.3 ., supra.
n) For instance in which an ASD school or ASD did not follow the ASD
Sexual Policy when responding to an incident or complaint of sexual
harassment, record all corrective action taken by the District as described in Seqtion
V.H.2.d., infra.
o) The obligations of the District Equity Coordinator shall not preclude
parallel investigations by the District.
p) Additional requirements set forth in Section V.C.6., infra.
5. The School-Based Equity Coordinators shall have, at tp.inimum, the following
duties with regard to their respective schools:
. .
a) Receive complaints of sexual harassment pertaining to students enrolled in
the school and pertaining to incidents that occur in the school building> on the school
property, at school-sponsored events or about which the School" Bused Equity
Coordinator has or reasonably should have knowledge.
b) Inform the DiB'Il'ict Equity Coordinator of all sexual
complaints reqeived.
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c) With the assistance of the District Equity Coordinator, initiate building-
level investigations of incidents and alleged incidents.ofsexual harassment in accordance
I .
with the Sexual Harassment Complaint and Investigation Procedures described supra at
V.B.l.c.
d) Assist the District Equity Coordinat91' to complete investigations into
incidents and l l ~ g e d incidents of sexual harassment and to reso.lve complaints of sexual
harassment in accordance with Section V.C.4.a.; supra.
e) Additional requirements set forth in V.C.6., infra.
6. Both the District and the Scho'ol-Based Equity Coordinators:
a) shall be availabie to meet upon request with ASD students about sexual
harassment complaints, questions, or concerns;
b) shall not have other job responsibUities that will, ot have the potential to,
create a conflict of interest (for example, Equity Cool'dinators will not also serve as
disciplinary hearing officers or legal cotmsel for the District); and
c) shall receive in the first year of implementation oftllis Consent Decree
information and training from the Con.sultant about the legal obligations of the District
and best practices for preventing and responding to sexual ha:rasBment incidents and
allegations, as set fol'th in pertinent part in Title IX, the Title IX implementing
regulations, and the OCR Guidance and as required by the ASD Sexual Harassment
Policy.
7. Prior to hiring or .appointing any Equity Coordinatots, ASD will interview
interested individuals to determine whether they are qualified to perform the requirements of the
position as set forth in this Consent Dooree.
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8. The United States shall approve ASD's selection of the District Equity
Coordinator as follows:
a) By the start of the school year, ASD shall. in writing, provide
the United States with the name, contact information, and resume or curriculwn vitae of
at least one it proposes to hire or appoint a8 the District Equity Coo:dinator.
ASD may alternately provide the United States with of multiple potential Equity
Coordinators (including their names, contact information, and tesume or curriculum
vitae), but if it does so, it must 1ist the individuals in order of preference starting with the
most preferred individual.
b) Within ten (1 0) business days of receiving notice of the proposed District
Equity Coordinator, the United States shall inform ASD in writing as to whether or not it
agrees to the hiring or appointment of the person proposed by ASD to serve as the
District Equity Coordinator. The United States' approval shall not tmreasollably be
withheld.
c) If the United States does not agree to the hiring or appointment of 1he
person proposed by ASD, then the parties will continue worldng together to designate a
mutually agreeable District Equity Coordinator. Any delays in hiling or appointment of
the person identified by ASp as the Di.Htrict Equity Coordinator will not excuse any party
. .
from fulfilling any other obligation set forth in this Consent Decree.
d) Following the United States, approval of the District Equity Coordinator,
. .
ASD shall hire or appoint the approved individual as District Equity Coor4inator within
fourteen (14) calendru. days.
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9. By the start of the 2012-2013 school year, ASD shall select School-Based
Equity Coordinators. Within five (5) business days of the selection of the Based Equity
Coordinators, ASD shall provide for the United States' review a list of all School-Based Equity
Coordinators, including the School-Based Equity Coordinators' names, titles, and qualifications
for the position.
D. Sexual Hru"RSsment Training and Profe!Yjional Development
1, The Dist1ict shall, through the Consultant and the District Equity Coordinator,
provide sexual harassment training and professional development for all ASD PersonneJ that
shall include:
a) detailed information about, and specific examples of, .conduct that
constitutes sexual_harassment;
b) the legal obligations of ASD Personnel under the ASD Sexual Harassment
Title IX, the Title implementing regulations, the OCR Guidance, and any
relevant mandatory child abuse reporting statutes to teport, investigate, and resolve all
. . .
complaints and allegations of sexual harassment;
c) detailed information about the i.trvestigative and reporting obligations of
the District and ASD Personnel set forth in the ASD Sexual Harassment Policy;
d) the process and timeframes for addressing sexual harassment complaints
and allegations;
e) information for specific ASD Personnel, deemed n,ecessary by the
Consultant, about their responsibilities under the District's procedures regarding the
l'egistration, enrollment, monitoring, and supervision of students who have a confirmed
history of sexual harassment toward other students, see Section V.E. 1., infra;
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f) a review of student confidentiality requirements, including specific
descriptiollB of ASDts obligations to maintain student confidentiality so that personally
identifiable information about students shall not be revealed to non-ASD PersolUlel, but
may be shared among ASD Personnel to appropriately address and protect ASD students
from sexual harassment;
g) detailed information about when incidents of student-on-student sexual
harassment in ASD schools should be reported to outside agencies and the appropriate
circumstances for doing so;
h) discussion, interactive.discussion and/or 'role play, and the opportunity for
questions and answers;
i) the contact information for the District and School-Based Equity
Coordinators responsible for addressing complaints of sexual and
j) . other topics deemed germane by the Consultant and the District Equity
Coordinator.
2. The sexual harassment training and professional development shall occur at
regular intervals of time to be determined by the Consultant) but not less than once per year.
3. The sexual training and professional development will be distinct
from other ASD training and professional development.
4. All new employees, substitute teachers, temporary teachers, and other staff who
have unsupervised, direct contact with children must receive the sexual harassment training and
pr<?fessional development described in this Section V.D. within thirty (30) days of beginning
their employment in the District and> itr any event, before such staff may commence providing
services to ASD students or wol'king in ASD schools. ASD may provide the sexual harassment
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training and professional development required by this paragraph to new employees, substitute
teachers, temporary teachers, and other staff who have unsupervised, direct contact with children
by virtual means, including but not limited to online programming through the District's website
or through DVD recording or other visual recording, as long as the District ensures and verifies
that the new employees, substitute teachers, temporary teachers, and other staff who have
unsupervised, direct contact with children have completed the training and professional
development within thirty (30) days of beginning their employment in the District.
5. The District will ensute that all contractors have a criminal background clearance
pdor to unsupervised, direct contact with children.
6. The District shall provide, on an annual basis for all ASD students, age-- and
training sexual harassment, including what conduct
constitutes sexual harMsment, who to contact if they witness or are subjected to sexual
harassment, and how to infonn an adult when they believe sexual harassment may have
occurred.
7. The Disttict shall provide, on an annual basis, sexual harassment information
sessions for all interested .Parents of AS}) students about the ASD Sexual Harassment Policy.
The information sessions also shall provide parents with the contact infonnation of the District
Equity Coordinator and all School-Based Equity Coordinators; information about sexual
harassment complaint process, including the completion of any necessary fotms; and_ detailed
information about the process to appeal the findings of sexual harassment investigations or the
remedies imposed by ASD upon completion ofits iuv.estigation and response process.
. .
8. The District is responsible for any and all costs associated with the sexual
harassment training and professional development.
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E. Additional ASD Obligations
1. Students With a Confi-rmed History of Sexual Hal'assment Toward Other Students
a) To ensure that an ASD student with a confirmed history of sexual
harassment toward other students is appropriately monitored and supervised, District
shall work with the Consultant to develop policies and procedures to identify such
students, and to monitor and supervise any students who have repeatedly engaged in
sexual harassment. The requirements of Title IX, the Individuals with Disabilities
Education Act Section 504 of the Rehabilitation Act of l973. the Ainericans
with Disabilities Act ("ADA") of 1990, FERP A, and applicable state and federal laws
shall govern ASD's responsibility under this paragraph.
b) Whenever a student enrolls in ASD fiom a school outSide of the District pr
transfers between two schools within ASD, the principal and/or designated
admh1istrator at the receiving school shall review the student's complete cumulative
education file within ten (10) business days of receipt of records in order to determine if
the student has a confirmed hlstory of sexual harassment of other students.
c) If the cumulative education file of a new student enrollee or transfer
contains information that indicates the student poses a risk of sexual harassment
for other students, the District Equity Coordinatorand SchoolwBased Equity Coordinator
at the receiving schoolmust be notihed within two "(2) business days of that
determination cmd will work with ASD counseling and psychological support personnel
a.nd all other appropriate staff members, including the student's teachers, to develop and
implement policies and procedures to counsel, monitor, and :;"Upervise the student in a fair
and equitable fashion at al,l times.
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2. Prohibition Against Imposing Obligations on Harassed Students
a) Language from the Go de of Conduct and the ASD School Board Manual
l'equiring sexually harassed or allegedly sexually harassed students to "inform the
harasser that the harasser's conduct is illlwelcome" or issue a "stern rebuke to the
harasser," or to take such measures before filing a complaint of sexual hru:a.ssment with
the school or the District shall be stricken. See, e.g., Code of Conduct at 21. The ASD
Sexual Harassment Policy and the Investigation and Response Procedures are prohibited
from imposing any such obligation on a student who has, or alleges that he or she has,
been sexually harassed.
F. SSlxual Harassment Reporting System
1. The District shall, through the Consultant, create and implement a Sexual
Harassment Reporting System that may, at ASD's option, be incorporated into its existing
student data and information reporting systems, and that documents and maintains. complete
records of all sexual harassment complaints and inyestigations including, but not limited to, the
following information and materials:
a) each complaint or allegation, including the date and form in which the
complaint or allegation was made;
b) specific details about the incident, inoluwng the date(s), time(s), nature,
content, and location(s) of the harassment incident;
c) the date(s) the alleged. harassed student and harasser student were
interviewed;
d) the date that any relev.ant documentary evidence was obtained;
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e) any written or oral statements, cmrespondence, interview notes, and any
other documentation reoeived from the student the alleged harasser(s), the .
parent(s) of the student harassed and/or the alleged harasser(s); any witne-qses; and/or
person reporting the harassment;
f) the date, location and contact information for the ASD Perspnnel member
who obtained infoqnatlon.about the alleged harassment;
g) documentation of any prior incidents of sexual harassment involving the
student(s) subject to the harassment or the allege{ harasser;
.h) ASD investigating officials' findings and/or repolis and the basis for those
findings and/or
i) a full description of the Distl'ict's response to the incident, including but
not limited to discipline referral forms and discipline information for the student harasser;
j) supporting documentation, including but not limited to interview notes,
investigation report or and
k) documentation of all appeals proceedings, which may include written
findings of facts, transcripts, or audio recordings.
2. The ASD Sexual Harassment Reporting System shall maintain the confidentiality
of all ASD students, except for the District to fulfill its reporting obligations to the United States
pursuant to this Consent Decree, see discussion irifraat
G. _&!porting Between ASD and Outside Agencies
1. ASD, through the Consultant and the District Equity Coordinator, will develop
and implement policies and procedures describing when ASD Personnel must notify individuals
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and agencies outside of the District (e.g., local police, hospital, child protection agencies) of
sexual harassment alleged to have occurred within ASD.
2. ASD will propose to outside service agencies in the Allentown and Lehigh Valley
area an information-sharing agreement with regard to students who have a confirmed history of
sexual harassment toward other students, as discussed supra at V.E.l., that ASD will take all
steps necessary to receive from the outside agencies notification of such confirmed history of
sexual harassment, and ASD and the outside agencies will share relevant information about such
students so that ASD may provide counseling, monitoring, and supervision to identified students
to prevent sexual harassment from occurring in any of the District's education programs.
H. Reporting to the United States
1. The District will provide all requisite documents and information to the United
States set forth in this Section as well as the information required pursuant to Sections V.B.3. &
4., V.C.4.m., and V.C.8. & 9., supra, in electronic form, wherever possible, usable by the United
States and if not usable by the United States in electronic form, in paper form, in accordance
with the timelines set forth herein.
2
If ASD, despite its good faith efforts, is unable to meet any
timeline set forth in this Consent Decree, it will immediately notify the United States of the delay
and the reason therefore. The United States may provide a reasonable extension of the timeline
at issue.
2
ASD shall provide the United States with one copy of all documents and information it is
required to produce to the United States pursuant to this Consent Decree, directed to the
following attorney:
Melissa J. Michaud
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section, PHB 4300
601 D Street NW
Washington, DC 20004
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2. On an basis, prloi to July 15 of each school year and for the duration of
this Consent Decree, the District will provide documentation of its compliance .with this Conse11t
Decree through written compliance reports produced to the United States. Each compliance
report will cover the school year just completed, and will include all documents, information,
and other materials generated or maintained by the District regarding sexual harassment,
including the following:
a) All sexual harassment training, professional development. and parent
information session materials and curricula.
b) The date and duration of each sexual harassment training, professional
development, and information session required by this Consent Dec1ee; copies of all
agendas for such traini11gs, professional development, and information sessions; and
copies of any materials distributed, including any multimedia presentations.
c) A summary of all reported sexual harassment mcidents as in the
Sexual Harassment Reporting System, described supra at V.F.
d) Certification by the District Equity Coordinator that s/he has reviewed all
incident reports, discipline referrals, informal complaints, and formal complaints related
to incidents and alleged incidents of sexual hara8sment, and all documentation related to
such incidents, to determine whether all incidents, allegations, 01' complaints to
sexual harassment were properly identified, investigated, and resolved consistent with
District policies and procedures,
e) Certification by the Distl'ict Equity Coordinator that all ASD.Personnel
received each requhed sexual harassment tl'aining and professional development,
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described supra at V.D.) and the District's plan for providing sexual harassment training
and professional development to any individuals who. did not receive it.
f) Certification by ASD that it has fully and sufficiently addressed all
incidents alleging sexual harassment.
g) Copies of all st.ippotting documentation shall be maintained at the District
Equity Coordinator's office for review, upon request by the United States.
I. Enforcement
1. The United States will monitor and review compliance with this Consent Decree
and may enforce this Consent Decree if it believes that this Consent Decree, or any portion of it,
has been violated.
2. As part of its responsibility to monitor and review compliance with' this Consent
Decree, the United States may observe trainings, interview ASD Personnel and students
(including ex parte communications with students and employees other than school and Distl'ict
administrators), and request such additional reports or data as are necessary for the United States
to monitor ASD and to cleterin:ine whether ASD is in compliance with this Consent Decree,
Request by the United States for additional reports or data necessary to determine if ASD is in
compliance with this Consent Decree shall not be withheld. Also, with seven (7) calendar days
advance not1ce, the United States may visit any school in the District to monitor. compliance and
the District agrees to provide full access .to the United States to perform such monitoring.
3. In the event that the United States believes that ASD has violated any provision of
this Consent Decree, the United States will provide written notice (including reasonable
particulars) of such violation, and ASD shall then respond to such notice and/or cure such o ~
compliance within thirty (30) calendar days. The parties shall negotiate in good faith in an
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attempt to resolve any dispute relating thereto before the United States seeks relief fTom this
Court.
4. Where there is a requirement in this Consent Decree that the District submit
material to the United States for approval, and the District is unable to obtain approval that it
believes has been ulU'easonably withheld, ASD will raise its concerns in writing with the United
States and the United States shall then respond to such notice and/or issue the approval within
thirty (30) calendar days. The parties shall negotiate in good faith in attempt to resolve any
dispute thereto before seeking relief from this Court.
5. If any dispute under this Consent Decree is not resolved, any aggrieved party may
petition the Court for
6. This Consent Decree shall be enforceable only by the United States and ASD, and
nothing in this Consent Decree shall be construed to give rise to an action by a third party to
enforce the terms of this Consent Decree.
J. Miscellaneous
1. This Consent Decree shall remain in effect for ttn:ee (3)'years from the date of
entry. The Court shall retain jurisdiction for the duration of this Consent Decree to enforce the
terms of the Co.nsentDecree, after which time the case may be dismissed with prt1judice. Either
party to this Consent Decree inay apply to the Court for suoh further orders as may be necessary
for, or consistent with, the enforcement of this Consent Decree, including but not limited to the
extension of the Consent Decree, for good cause shown, for two (2) more years.
2. This Consent Decree constitutes the entire agreement by the parties, and no othel' .
statement, promise, or agreement, either Wt'itten or oral, made by any party or agents of any
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party, that is not contained in this written Consent Decree shall be enforceable regarding the
matters raised in this. Decree.
3. This Consent Dectee is final and has binding on the parties, including all
principals, agents, executors, administrators, representatives, employees, successoi's in interestJ
beneficiaries, assigns, and legal representatives thereo
4. Failure of the United States to seek enforcement of this Consent Decree pursuant
to its terms with respect to any instance or provision shall not be construed as a waiver to such
enforcement with regard to tha.t instance or provision 01' any other such instances or provisions.
5. This agreement does not affect the District's duty to comply with provisions of
Title IX or any other law.
6. The undersigned representatives of the. parties certify that they are authorized to
. . .
enter into and consent to the terms and conditions ofthe Consent Decree and to execute and
legally bind the parties to it.
7. The parties agree that, as of the date of entry of this Decree, litigation is
not "reasonably concerning the matters described herein. To the extent that any
party previously implemented a litigation hold to preserve doctunents, electronically stored
information, or things related to the matters described the party is no longet required to
maintain such a litigation hold. Nothing in this paragraph relieves any party of any other
obligations imposed by this Consent Decree,
8. Notwithstanding Section V.J. the District is expected to preserve documents,
including electronically stored information, used to compile all necessary repotts and
information for inspection by the United States as set forth in Section V .H., supra.
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9. The parties will bear their oWll attomeys' fees and costs in connection with this
litigation and resultant Consent Decree.
10. Neither this Consent Decree nor a violation of this Consent Decree shall serve as
the basis for liability of ASD or its agents or officers> or be admissible in any proceeding, except
in a proceeding brought by the United States.
11. If any term or provision of this Decree is determined by any court to be
unenforceable, the other terms of this Decree shall nonetheless remain in full force and effect,
provided however, that if the severance of any such provision materially alters the rights or
obligations of the parties, the parties shall engage in good faith negotiations to adopt such
agreeable arriendments to this Decree as may be necessary to restore the parties as
closely as possible to the initially relative rights and obligations.
SO ORDERED, this 2012.
THE HONORABLE PAULS. DIAMOND
United States Jndge
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FOR THE UNITED STATES OF AMERICA:
ZANE DAVID MEMEGER
United States Attorney
Eastern District of Pennsylvania
ANNETI A FOSTER GIVHAN
Assistant United States Attorney
Eastern District of Pennsylvania
615 Chestnut Street
Philadelphia, P A 191 06
Tel: (215) 861-8319
Fax: (215) 861-8618
THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division
ANURIMA BHARGA VA, Section Chief
KA THL.EEN DEVINE, Senior Counsel
Afs@'m-@ vLt.:cbo..J,e
MEL SA J. M AUD
Trial Attorney
Educational Opportunities Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Patrick Henry Building, Suite 4300
Washington, D.C. 20530
Tel: (202) 514-4092
Fax: (202) 514-8337
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