Prepared by Advisory Board Member/Attorney Jeff CaffeeWhat is Title IX?
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any federally funded education program or activity. Title IX is intended to create a gender equitable educational environment. It states:
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 education program or activity receiving Federal financial assistance.
Thus, any educational entity receiving any federal funds must comply with Title IX.
The U.S. Department of Education’s Office for Civil Rights (OCR) enforces several Federal civil rights laws, including Title IX, that prohibit discrimination in programs or activities that receive federal financial assistance from the Department of Education.
Yes. Under Title IX, unwelcome sexual contact includes rape, sexual assault, sexual battery, sexual coercion, and acts of sexual violence. All such acts of unwelcome sexual contact are forms of sexual harassment covered under Title IX. Sexual harassment is a form of sexual discrimination.
No. Title IX applies whether the perpetrator of the unwelcome sexual contact is another student, any and all school employees, or a third party. Additionally, the unwelcome sexual contact does not have to take place on school grounds to invoke Title IX protections. Title IX applies so long as the unwelcome sexual contact impacts a student’s access to equal educational opportunities.
While Title IX is commonly used to refer to equal opportunity in the context of women’s athletics, Title IX is applicable to all facets of the educational process. This would include, but is not limited to, admissions, recruitment, educational programs, extra-curricular activities, field trips, counseling, employment assistance, facilities, housing, health and insurance benefits, scholarships, and the educational process itself.
While Title IX is best known for breaking down barriers in the world of sports for women and girls, the language of Title IX is broad and applies to any education program or activity receiving federal funds. Thus, Title IX has impacts in several areas, including:
- Access to Post-Secondary Education. Colleges and universities must provide equal access to educational opportunities. This not only includes admission into a particular educational institution, but also equal access to various schools of study, such as engineering, medicine and law.
- Athletics. Educational institutions must offer equal access to athletics. Famously, Title IX has changed the landscape of women’s sports in the United States. Increased budgets for female sports has led to higher rates of participation by girls and women.
- Vocational Training. Educational institutions can no longer “funnel” students into vocational training programs based upon their sex. For instance, a school cannot discourage females from entering into plumbing vocational programs and cannot discourage males from entering into cosmetology vocational programs.
- Pregnancy. Educational institutions are required to ensure that pregnant students have the same access to education. Separate programs for pregnant students may be developed. However, these programs must be of comparable quality to other programs offered by the Educational institutions and must be voluntary.
- Employment. Educational institutions are prohibited from engaging in sexual discrimination in the hiring and employment process as well as the pay of its employees.
- Educational Environment. Title IX prohibits the use of gender stereotypes in the educational process. Thus, equal attention must be given to both boys and girls in science and math classes. Educators must ensure that students, regardless of gender, are able to get the most from their education.
- Math and Science Activities. Title IX prohibits educational institutions from steering girls away from math and science activities, such as math or science clubs. Additionally, girls must have the same access to advanced placement math and science courses.
- Sexual Harassment. Title IX prohibits sexual harassment. This includes unwelcome sexual contact, sexual innuendo, sexually charged bullying, and any other sexually motivated harassment.
- Standardized Testing. Standardized tests must not be discriminatory in the type or phrasing of questions. Title IX requires standardized tests to be credible indicators of proficiency in the subject tested. Thus, if a standardized test is bias towards one sex (i.e., if girls or boys consistently score higher) the test may be discriminatory. Scores on standardized tests may open or close doors for students. If a standardized test is consistently bias towards a particular sex it has the effect of deepening the divide in educational opportunities for members of that sex.
- Technology. Educational institutions must provide equal access to technology. This includes educational opportunities in the computer sciences.
All students, regardless of gender, are protected from unwelcome sexual contact under Title IX. Additionally, the U.S. Department of Education’s Office for Civil Rights (OCR) has explained that Title IX does indeed protect transgender students. OCR has stated that Title IX bars discrimination on the basis of gender identity or “failure to conform to stereotypical notions of masculinity or femininity.”
However, Title IX does not explicitly cover discrimination on the basis of sexual orientation.
If a school knows or reasonably should know about sexual harassment or unwelcome sexual contact that creates a hostile environment, the school must promptly and effectively take action to eliminate the harassment or unwelcome sexual contact, prevent its recurrence, and address its effects.
In the event a student does not want to file a complaint or does not request that the school take any action on the student’s behalf, if a school knows or reasonably should know about possible sexual harassment or unwelcome sexual contact, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.
A criminal investigation into allegations of sexual harassment or unwelcome sexual contact does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.
Anyone can report acts of unwelcome sexual contact to OCR or the educational institution where the subject victim attends.
Whether an environment is hostile is based upon the specific facts of a case. Generally, a single extreme incident may be found to have created a hostile environment. Also, a repetitive series of smaller incidents may constitute a hostile environment when considered as a whole. The more severe the conduct, the less need there is to show a repetitive series of incidents to find a hostile environment.
Additionally, if an educational institution fails to take action or delays such action, this may create a student’s hostile environment.
A Title IX coordinator is tasked with overseeing a school’s response to Title IX reports and complaints, and identifying and addressing systemic problems revealed by such reports or complaints. Thus, a Title IX coordinator must have knowledge of the requirements of Title IX, the school’s policies and procedures on unwelcome sexual contact, and of all complaints raising Title IX issues throughout the school. A school should ensure that the Title IX coordinator is given the training, the authority, and the visibility necessary to fulfill these duties.
Additionally, a school may provide its Title IX coordinator with responsibilities such as training employees, conducting Title IX investigations, determining interim measures, and coordinating services for complainants.
First, every school must have and distribute a policy against sexual discrimination in its education programs and activities. This notice must be widely distributed and available for students and parents throughout a school year. Additionally, the policy must state that questions or concerns regarding Title IX may be referred to the school’s Title IX coordinator or to the Office for Civil Rights.
Second, every school must designate at least one employee to serve as a Title IX coordinator. Schools must inform all students and employees of the name and contact information of the coordinator. The Title IX coordinator is responsible for overseeing all complaints of unwelcome sexual contact as well as identifying and addressing any systemic problems that are found during investigations.
Third, every school must have and make known procedures for students to file complaint of unwelcome sexual contact. If a school relies upon its general disciplinary procedures to address unwelcome sexual contact, its general procedures must provide for prompt and equitable resolutions of such complaints.
Moreover, a school must ensure that (1) the complainant be notified of the timeframes in which the school will complete its investigation; (2) the complainant have the opportunity to present his or her case; (3) the complainant be notified of the outcome of the complaint, including any sanctions against the perpetrator; and (4) that the complainant may file an appeal if desired.
Most importantly, the school must ensure that it uses the preponderance of the evidence standard throughout the process. Preponderance of the evidence simply requires that the school make its decisions based upon “the greater weight of the evidence” (is it more likely true than not true). Thus, the question a school must ask is based upon the evidence presented, is it more likely true, than not true, that the unwelcome sexual contact occurred.
This is vastly different than the “beyond a reasonable doubt” standard used in criminal proceedings. Under the preponderance of the evidence, if it is more likely true, than not true, that unwelcome sexual contact occurred, the school must act accordingly.
Title IX does not require that a particular individual act as Title IX coordinator. However, the Title IX coordinator must not have job responsibilities that create conflicts of interest with their responsibilities under Title IX. For instance, the Title IX coordinator may not sit on a disciplinary board, decide appeals of disciplinary board decisions, or serve of legal counsel for the school.
Students reporting unwelcome sexual contact sometimes ask that their identity not be disclosed to the alleged perpetrators or that no investigation or disciplinary action be pursued. While a student’s interests in confidentiality are strongly supported, there are situations in which a school must override a student’s request for confidentiality in order to meet its Title IX obligations. Such cases should be limited and information should only be shared with individuals who are responsible for handling the school’s response to unwelcome sexual contact. Schools should be aware that disregarding requests for confidentiality can have a chilling effect and discourage other students from reporting unwelcome sexual contact.
Yes. An investigation conducted by a school must be adequate, reliable, impartial, and prompt. Also, it must include the opportunity for both parties to present witnesses and other evidence. A hearing may occur, but is not required. The person(s) conducting the investigation must have training or experience in handling complaints of unwelcome sexual contact and in the school’s grievance procedures.
If there is an ongoing criminal investigation, a school should coordinate with the ongoing investigation to minimize the number of times students must be interviewed.
A school should not wait for the conclusion of a criminal investigation to begin its own Title IX investigation. Typically, a school should complete its investigation process within 60 days. A longer or shorter timeframe for investigation is dependent upon the complexity and severity of the alleged conduct. Either way, complainants should be given regular updates throughout the process.
A school is required to take interim measures to protect a complainant before the final outcome of an investigation. The school should promptly enact interim measures upon notice of an unwelcome sexual contact allegation. This may include actions such as changing transportation, the use of an escort between classes, and changing academic or extracurricular activities. Additionally, a school should ensure that the complainant is aware of his or her Title IX rights and any available resources such as victim advocacy, academic support, counseling, health and mental health services, and legal assistance. When taking these interim measures, the school should minimize the burden on the complainant.
The remedies a school enacts will be entirely dependent upon a particular case. However, remedies may include:
- Providing escorts between classes and activities;
- Ensuring the complainant and the perpetrator do not share classes or activities;
Moving the perpetrator or complainant (if the complainant requests to be moved) to another school within the district;
- Providing medical, counseling, and academic support services;
- Arranging additional time for complainant to complete or re-take classes or withdraw without academic penalty;
- Reviewing disciplinary action taken against the complainant to see if there is a causal connection between the unwelcome sexual contact and the misconduct that resulted in the complainant being disciplined.
Yes. It is unlawful for a school to retaliate against a student for filing a complainant of unwelcome sexual contact. Additionally, it is unlawful for a school to retaliate against an individual because he or she testified or participated in any OCR or school investigation.
A school should be aware that complaints of unwelcome sexual contact may be followed by retaliation against the complainant and witnesses by the alleged perpetrator or his or her associates. If a school knows or reasonably should know of the possibility of retaliation from other students (or third parties), it must take prompt and effective action to investigate the instances of retaliation. A school is required to protect the complainant and ensure his or her safety. This includes informing a complainant on how to report retaliation, by following up with the complainant, and by promptly and effectively responding to continuing or new instances of retaliation. A school should inform a complainant that it will take steps to prevent retaliation and will take strong responsive action if it occurs.
“Questions and Answers on Title IX and Sexual Violence.” (April 29, 2014)
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf Note: OCR withdrew this guidance on 9/22/2017.
The US Department of Education Office for Civil Rights of (OCR) has published “Questions and Answers on Title IX and Sexual Violence.” This document helped clarify the responsibilities and duties of educational institutions under Title IX and outline the civil rights provided to students, both male and female, under Title IX. OCR’s “Questions and Answers on Title IX and Sexual Violence” serves as an information resource for every question and answer in this document.
- Dear Colleague Letter (April 2011) Note: OCR withdrew this guidance on 9/22/2017.
- Dear Colleague Letter (January 2001)
- Dear Colleague Letter (October 2014)
- Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts (April 4, 2011)
http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201104.pdf Note: OCR withdrew this guidance on 9/22/2017.
- Sexual Harassment: It’s Not Academic (Revised September 2008)
http://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf Note: OCR withdrew this guidance on 9/22/2017.
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