September 4, 2018
What is Title IX?
Title IX of the Education Amendments Act of 1972 is a federal law that prohibits sex discrimination in education programs and activities in any school receiving federal financial assistance. The U.S. Department of Education’s Office for Civil Rights (OCR) enforces Title IX, among other civil rights laws (such as Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, and the Boy Scouts of America Equal Access Act). The OCR’s mission is to “ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools.” Federally funded schools at all levels must comply with Title IX. (Title IX exempts any educational institution controlled by a religious organization to the extent that compliance would not be consistent with the religious tenets of such organization. [20 U.S.C. §1681(a)(3); 34 C.F.R. § 106.12(a).]) They may not exclude, separate, deny benefits to, or otherwise treat differently any student, employee, applicant for admission or employment, or other person on the basis of sex unless expressly authorized to do so under Title IX or the OCR.
Who is Protected?
Title IX protects students, employees, applicants for admission and employment, parents, guardians, and other persons from all forms of sex discrimination. A Title IX complaint can be filed by anyone who believes that an education institution that receives federal financial assistance has discriminated against someone on the basis of sex. The person or organization filing the complaint need not be a victim of the alleged sex discrimination, but may complain on behalf of another person or group.
What is Protected?
Title IX protects against all forms of sex discrimination and sex-based harassment (including sexual violence and gender-based harassment). Sex discrimination includes discrimination based on pregnancy, parental status, sexual orientation, and gender identity or failure to conform to a sex stereotype (such as treating someone differently because that person does not conform to a sex-role expectation or because that person is attracted to or is in a relationship with a person of the same sex).
Sex-based harassment includes unwelcome sexual advances, requests for sexual favors, and verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Gender-based harassment is unwelcome conduct based on a person’s actual or perceived sex. Gender-based harassment includes slurs, taunts, stereotypes, or name-calling, as well as gender-motivated physical threats, attacks, or other hateful conduct.
How is Title IX Applied?
Educational institutions receiving federal financial assistance (“recipient institutions”) must ensure that no person is excluded, separated, denied benefits, or treated differently on the basis of such person’s sex, in all aspects of the recipient institutions’s educational programs and activities, including classes, athletics, and extracurricular activities.
Below are some of the most common issues in which Title IX is implicated:
Recruitment, Admissions, and Counseling
Recipient institutions must provide equal opportunities for members of both sexes with respect to the recruitment, admissions, and counseling of their students. This means ensuring non-discrimination in the ranking process or any test or criterion for admission which has a disproportionate effect on students on the basis of their sex. Any test of this nature is strictly scrutinized and should not be used when alterative tests which do not have such an effect are available. Applying numerical limitations upon the number of students of either sex who may be admitted is also prohibited. Recipient institutions should ensure their recruitment materials, admission forms, and policies and procedures do not reflect a preference based on sex.
Recipient institutions may not discriminate on the basis of sex in the counseling or guidance of their students or applicants for admission. Title IX makes it unlawful for school counselors to try and “steer” their students toward a particular career path based on their gender. School counselors should cover the same occupations and interests with respect to their programs, advice and materials.
Sex-based disparities in enrollment in certain fields of study such as science, technology, engineering, and mathematics, must not be the result of discrimination on the basis of sex. Typically, these “nontraditional” fields of study are affected by disproportionate enrollment of students based on students’ sex. Recipient institutions must ensure that both male and female students have equal access to all academic programs and they should work with their employees (teachers and counselors) to address any underrepresentation of students in those fields, including reviewing enrollment data and counseling materials.
Athletics (including financial assistance for athletes)
Title IX as applied to athletics has gained the widest publicity. Title IX requires that male and female student-athletes be provided equal opportunities in athletics with respect to their interests and abilities, benefits and opportunities, and even financial assistance. Recipient institutions are not required to offer identical sports, but a nondiscriminatory opportunity to participate in sports. One way the OCR determines whether a recipient institution is in compliance with Title IX is determining whether participation opportunities for male and female athletes are provided for in numbers substantially proportionate to their respective enrollments.
Title IX requires recipient institutions to provide male and female student-athletes equal benefits and opportunities with respect to: “(1) the provision of equipment and supplies; (2) scheduling of games and practice times; (3) travel and per diem allowances; (4) opportunity for coaching and academic tutoring; (5) assignment and compensation of coaches and tutors; (6) provision of locker rooms, and practice and competitive facilities; (7) provision of medical and training facilities and services; (8) housing and dining services; (9) publicity; (10) recruitment; and (11) support services.” [U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide (Apr. 2015).]
Title IX further requires that female and male student-athletes receive athletic financial assistance opportunities with respect to scholarships and grants, in proportion to their participation in the sport offering such financial assistance.
Pregnant and Parenting Students
Recipient institutions must not discriminate against a student based on the student’s perceived or actual parental, familial, or marital status, or based on a student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom. Discrimination includes excluding such student from any educational program, class, or activity, or any extracurricular activity. An absence due to pregnancy, childbirth, or related condition should be treated in the same way that recipient institutions treat other students who are similarly absent from classes. Recipient high schools are prohibited from steering pregnant/parenting students into inferior alternative programs and encouraging them to drop out and get a GED. Recipient colleges and universities must not terminate a student’s financial assistance or scholarship based on pregnancy.
Recipient institutions must not subject any person to separate or different rules of behavior, sanctions, or other disciplinary treatment on the basis of sex. Students who commit the same offense should not be disciplined differently on the basis of their sex. Recipient institutions should maintain records concerning any disciplinary incident and monitor the administration of their discipline policies to make sure that they are not administered in a discriminatory manner.
How Can I File a Title IX Complaint?
An individual may file a Title IX complaint with the OCR against a recipient institution. The OCR has authority to evaluate, investigate, and receive complaints alleging sex discrimination or sexual harassment. However, prior to filing a Title IX complaint with the OCR, an individual may decide (but is not required) to file her complaint with the recipient institution’s Title IX office in order have the complaint resolved by the recipient institution’s internal grievance process.
Title IX mandates that recipient institutions provide for prompt and equitable resolutions of student and employee complaints under Title IX. Title IX also mandates that recipient institutions designate a Title IX coordinator to help ensure nondiscrimination by carrying out their responsibilities under Title IX and complying with Title IX’s administrative requirements. Recipient institutions must provide their members with information concerning their rights under Title IX, contact information for the Title IX coordinator, and how to file a complaint alleging violation of Title IX.
What is the Time Period for Filing a Title IX Complaint?
Complaints filed with the OCR must be filed within 180 days of the last act of discrimination on the basis of sex. However, if a complainant chooses to use a recipient institution’s grievance process along with filing a complaint with OCR, the complainant has 60 days after the completion of the recipient institution’s grievance process to file her complaint with the OCR.
The complainant also has the right to file suit in federal court, regardless of OCR’s findings, and does not need to file a complaint with the OCR prior to filing a claim in court.
Title IX prohibits retaliation against a student or employee of a recipient institution, or any other person, because such person alleged a violation of Title IX, filed a Title IX complaint, participated in a Title IX investigation, hearing or proceeding, or advocated for another person’s Title IX rights.
The U.S. Department of Education’s Office for Civil Rights (OCR):
The OCR’s Title IX Resource Guide:
34 C.F.R. Part 106 – Nondiscrimination on the Basis of Sex in Education Programs Or Activities Receiving Federal Financial Assistance:
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.