“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance…”
Title IX is a federal law, codified at 20 USC §1681 et seq. and 34 CFR §106.1 et seq., which prohibits discrimination on the basis of sex in any federally funded education program or activity, including colleges, universities, and elementary and secondary schools. Title IX applies not only to students, but also to employees, applicants for admission, applicants for employment, coaches, volunteers, and parents.
The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices.
Examples of the types of discrimination that are prohibited under Title IX include sexual harassment; the failure to provide equal opportunity in athletics; discrimination in a school’s science, technology, engineering, and math (STEM) courses and programs; discrimination based on pregnancy and/or marital status; financial assistance; student health services and insurance benefits; harassment based on gender identity; and athletics.
The essence of Title IX is that an institution may not exclude, separate, deny benefits to, or otherwise treat differently any person on the basis of sex unless expressly authorized to do so under Title IX of the Department’s implementing regulations. When a school is considering relying on one of the exceptions, the Title IX Coordinator (this position is discussed more below) should be involved and legal counsel should be sought to navigate the exceptions.
Keep in mind that there are other laws that govern harassment, discrimination, and retaliation for other protected classes including but not limited to race, color, religion, sex, sexual orientation, national origin, marital status, association, an expunged juvenile record, age, and disability.
Title IX Coordinator
Under Title IX, all schools receiving federal money must designate at least one employee as the Title IX Coordinator. If that person is on vacation or out sick, there must be a backup person available. All students and employees should be notified of the Title IX Coordinator’s contact information. If an entity has multiple Title IX Coordinators, then it should designate one lead Title IX Coordinator who has ultimate supervisory responsibility.
All employees should be made aware of the requirements under Title IX, the identity of the Title IX Coordinator, and how to enforce policies and procedures in line with Title IX.
The Title IX Coordinator’s functions and responsibilities include the following:
- Providing or facilitating ongoing training, consultation, and technical assistance on Title IX for all students, faculty and staff;
- Conducting or overseeing adequate, reliable, and impartial investigations of reports and complaints of sexual misconduct;
- Taking remedial steps for an individual complainant and determining whether a campus-wide remedy should be adopted;
- Coordinating an annual climate survey;
- Reviewing the school’s policies and procedures to ensure that they comply with Title IX requirements;
- Ensuring that appropriate policies and procedures are in place for working with local law enforcement and coordinating with local victim advocacy organizations and service providers, including rape crisis centers; and
- Consults regularly with stakeholders to promote campus-wide awareness and discussion of Title IX-related issues, and develop and implement any modifications of policies and procedures to prevent and eliminate sex discrimination, including sexual misconduct.
Complaint Procedures and Investigation
Each school should have a complaint handling procedure to ensure that Title IX complaints are properly investigated and are given careful and fair consideration.
An investigation must be conducted regardless of whether a formal complaint is filed – oral complaints are enough to trigger the complaint process. Once a responsible party has actual or constructive notice of harassment, an investigation must be conducted.
According to the U.S. Department of Education Office of Civil Rights’ (OCR) 2001 Guidance, a responsible employee includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.
The investigation must be prompt, thorough, and impartial. This includes the fact-finding investigation and any hearing and decision-making process the school uses to determine: (1) whether or not the conduct occurred; and, (2) if the conduct occurred, what actions the school will take to end the sexual harassment, eliminate the hostile environment, and prevent its recurrence, which may include imposing sanctions on the perpetrator and providing remedies for the complainant and broader student population. Both parties must be allowed to present witnesses and other evidence. The investigation may include a hearing to determine whether the conduct occurred, but Title IX does not necessarily require a hearing. Furthermore, neither Title IX nor the DCL specifies who should conduct the investigation. It could be the Title IX coordinator, provided there are no conflicts of interest, but it does not have to be.
The investigation should be balanced and fair that provides the same opportunities to all parties. Specifically:
- Throughout the investigation, all parties must have an equal opportunity to present relevant witnesses and other evidence.
- The school must use a preponderance-of-the-evidence (i.e., more likely than not) standard in any Title IX proceedings, including any fact-finding and hearings.
- If the school permits one party to have lawyers or other advisors at any stage of the proceedings, it must do so equally for all parties. Any school-imposed restrictions on the ability of lawyers or other advisors to speak or otherwise participate in the proceedings must also apply equally.
- If the school permits one party to submit third-party expert testimony, it must do so equally for all parties.
- If the school provides for an appeal, it must do so equally for all parties.
- Both parties must be notified, in writing, of the outcome the complaint and their right to appeal, if any.
In cases of potential criminal conduct, determine whether state/local law requires notifying authorities – whether law enforcement and/or licensing authorities.
Bullying, Harassment, and Discrimination
Title IX prohibits sexual harassment, which is any unwanted and unwelcome behavior that significantly interferes with a student’s access to educational opportunities. Discrimination and bullying based on sex – including LGBTQ status – are also prohibited. Schools are required to prevent and address harassment against students, regardless of whether the harassment is perpetrated by peers, teachers, or other school officials.
A school/district may be liable for sex-based harassment if harassment is serious enough that it creates a hostile environment for the victim and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.
Once a responsible employee has either actual or constructive notice of sexual harassment/sexual misconduct, the school must take immediate and appropriate steps to separate the alleged victim and alleged perpetrator, investigate what happened, stop the harassment, remedy the effects, and prevent the recurrence.
Schools should ensure that similarly situated students are not being disciplined differently based on sex for the same offense as this could also be a Title IX violation. The Office for Civil Rights has a “Dear Colleague” Letter, which addresses nondiscriminatory administration of school discipline that can be found here: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html.
Sex-based harassment and discrimination can include comments based on a failure for a student to conform to stereotypical notions of masculinity or femininity, comments made on social media, dress codes, sexting, hazing, and comments about a student’s sexual behaviors.
Dress codes in particular is an area where a school can get into trouble. Students have the right to dress in accordance with their gender identity, in conformance with the dress and grooming standards prescribed by a student’s school of attendance. A prohibition, for example, on short skirts should be gender neutral; however, a prohibition of males wearing skirts should be a violation of Title IX.
Pregnant and Parenting Teens
Schools may not harass or discriminate against students because of pregnancy, child birth, false pregnancy, termination of pregnancy, or recovery from any of these conditions. Schools must treat students affected by pregnancy and related medical conditions as temporary disabilities and the school/district must excuse all pregnancy-related absences for as long as medically necessary. Other accommodations may be necessary such as providing a larger desk, allowing frequent trips to the bathroom, or permitting the student temporary access to elevators.
Pregnant and parenting students must be allowed to continue to participate in classes and extracurricular activities. If a student chooses, they may participate in special instructional programs or classes for pregnant students. The alternative program must provide the same types of academic, extracurricular, and enrichment opportunities as the school’s regular program.
Pregnant students cannot be required to submit a doctor’s note to participate in school or school-sponsored activities unless the school requires a doctor’s note from all students who have a physical or emotional condition requiring treatment by a doctor. The school may not require a doctor’s note from the pregnant student to return to school after the student has been hospitalized for childbirth unless the school requires a doctor’s note from all students who have been hospitalized for other conditions in order to return to school.
If a student misses school, the student should be allowed to choose how to make up the work. Some alternatives are retaking a semester, taking part in an online course credit recovery program, or allowing the student additional time in a program to continue at the same pace and finish at a later date.
In addition, the school has a responsibility to protect a pregnant or parenting student from harassment based on sex, including harassment because of pregnancy or related conditions. Comments that could constitute prohibited harassment include making sexual comments or jokes about someone’s pregnancy, using sexually charged names, spreading rumors about someone’s sexual activity, and making sexual propositions or gestures, if the comments are sufficiently serious that it interferes with the student’s ability to benefit from or participate the student’s school’s program
LGBTQ Student Rights
Title IX protects transgender students. The United States Department of Education specifically states, “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” as well as protecting transgendered students from sexual violence.
Single Sex Classes
The general rule under Title IX is that a recipient may not exclude, separate, deny benefits to, or otherwise treat differently any person on the basis of sex in its education programs or activities—including classes and extracurricular activities—unless expressly authorized to do so under Title IX or the Department’s implementing regulations.
The regulations have two categorical exceptions for specific types of classes or portions of classes that may be segregated by sex: (1) physical education classes during participation in sports the purpose or major activity of which involves bodily contact; and (2) portions of classes in elementary and secondary schools which deal exclusively with human sexuality. The third exception is a case-by-case basis, allowing separation of students by sex for nonvocational classes and extracurricular activities if certain criteria are met.
A nonvocational elementary or secondary school may offer a nonvocational single-sex class if it has a two-part justification for doing so that demonstrates that: 1) each single-sex class is based on the school’s “important objective” either to improve its students’ educational achievement through its overall established policies to provide diverse educational opportunities (the diversity objective), or to meet the particular, identified educational needs of its students (the needs objective); and 2) the single-sex nature of the class is “substantially related” to achieving that important objective. The school may use comparator schools – comparable in grades served, curricular offerings, geographic locations, etc. – to demonstrate substantial relationship. In addition, the school must implement its objective in an evenhanded manner; the enrollment must be completely voluntary; a substantially equal coeducational option must be provided for every single sex class or activity; and each single sex class or activity must be subject to periodic evaluations (recommended at a minimum of every two years), which are distributed to the public, to determine whether the class is achieving its important objective.
The justification must be established prior to offering the single-sex class, no post hoc rationalizations. Schools may not rely on overbroad generalizations or stereotypes about the talents, capacities, interests, or preferences of the sexes.
Instructors may not be assigned to a single-sex class on the basis of the teacher’s sex – for example, do not assume that female teachers will be better at teaching female student or that male teachers will be better at teaching male students.
Please note that under the regulations, vocational classes may never be offered on a single-sex basis.
This is what people commonly think of when they think of Title IX – athletics. Under § 106.41, “No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intermural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.”
There is a three prong test to ascertain whether schools are providing equal participation opportunities to their male and female counterparts.
- Are athletic participation opportunities for males and females substantially proportionate to their respective enrollments; or
- Does the school have a history and continuing practice of expanding athletic participation opportunities for the underrepresented sex; or
- Has the school fully and effectively accommodate the interests and abilities of the underrepresented sex.
Male and female athletic programs must be equal overall. In determining whether equal opportunities in athletics are available, the Title IX regulation specifies the following factors which must be considered:
- accommodation of athletic interests and abilities;
- equipment and supplies;
- scheduling of games and practice times;
- travel and per diem allowances;
- opportunity for coaching and academic tutoring;
- assignment and compensation of coaches and tutors;
- locker rooms and other facilities;
- medical and training services;
- housing and dining services; and
Title IX also governs athletic scholarships for males and females. The total amount of scholarship dollars awarded to male and female athletes must be substantially proportionate to their participation rates in athletic programs. In other words, if 60 percent of an institution's intercollegiate athletes are male, the total amount of aid going to male athletes should be approximately 60 percent of the financial aid dollars the institution awards.
U.S. Department of Justice: http://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20-usc-1681-et-seq
PACE Pre-Loss Services: http://pace.osba.org/Benefits/Articles/Service-Preloss.aspxThis is not intended as legal advice, but as a general overview of a legal topic. If you need additional information or need assistance in applying Title IX, talk to your Title IX Coordinator, or contact PACE or the Office for Civil Rights.