Title IX - Nashville Title IX Advising and Litigation
Like many other areas of the law, the rules, regulations, and administrative decisions and guidance surrounding Title IX are always changing. There have been significant changes in the last few years with transitions in presidential administrations. The following, therefore, is meant only to be a general introduction to Title IX. Title IX is very nuanced, and as such, the following should not be relied upon as legal advice. A qualified Title IX attorney can help guide you in the process.
Background
Title IX is a federal civil rights law that prohibits sex-based discrimination in educational programs or activities. Title IX is a shorthand for Title IX of the Education Amendments of 1972—a federal statute codified at 20 U.S.C. § 1681. It was passed under the authority of the 14th Amendment’s Equal Protection Clause and was the natural continuation of Title VI of the Civil Rights Act of 1964.
Title IX mandates that: “No person in the United States shall, on the basis of sex, be excluded from participation, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
More specifically, Title IX prohibits the following:
(1) disparate treatment (which is when a school treats people differently on the basis of sex);
(2) disparate impact (which is when a university or school’s facially neutral policy or practice has an unequal impact on a certain sex without a legitimate justification); and,
(3) retaliation (when a school implements an adverse action, treatment, or condition against the student who raised the Title IX concern).
To Whom Does Title IX Apply?
Every educational institution that receives federal funding must comply with Title IX. This includes public universities, public elementary schools, and public high schools. Importantly, Title IX can also apply to private schools that receive some form of federal funding, however small. For example, if a private school receives federal subsidies such as free lunches for some students through the National School Lunch Program, it could be subject to Title IX.
You might have a Title IX claim if you are a student or employee who has experienced some form of discrimination by a school or university that receives federal funding. A qualified Title IX attorney can help you determine whether a Title IX action is appropriate in your case.
The Broad Scope of Title IX
Title IX—through case law, federal regulations, and administrative rules and decisions—prohibits a wide range of discrimination. For example, a school or university cannot:
provide different aid, benefits, or services based on gender;
subject any person to separate or different rules of behavior, sanctions, or other treatments based on gender;
deny any person any such aid, benefit, or service based on gender;
aid or perpetuate discrimination against any person by providing significant assistance to anyone or entity that discriminates on the basis of sex.
Similarly, schools and universities that receive federal funding must:
Provide comparable facilities and housing for each sex;
Provide equal access to course offerings;
Provide equal access to counseling and appraising;
Provide equal access to financial assistance;
Provide equal assistance, health, and insurance benefits and services to employees; and
Provide equal opportunities for each sex for athletics and sports.
The foregoing list is not exclusive. And although Title IX Rules and Regulations are in flux right now, some federal circuits have extended Title IX to include gender identity. The U.S. Attorney General’s office also issued a letter stating that Title IX extended to gender identity and sexual orientation. See Letter from Pamela S. Karlan, Principal Deputy Assistant Attorney General for the Civil Rights Division, to Federal Civil Rights Directors and General Counsels (Mar. 26, 2021).
If you feel you have been discriminated against based on your sex, a qualified Title IX attorney can help you determine whether your school or university has violated your rights under Title IX.
Title IX—Sexual Harassment and Sexual Assault
Title IX’s prohibition of discrimination based on sex includes a student or employee’s right to be free from sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.
A university and school’s responsibilities pertaining to sexual harassment and sexual assault under Title IX include, but are not limited to, the following:
A school must respond promptly and effectively to a Title IX complaint. If a school knows or reasonably should know about an instance of sexual harassment or sexual violence that creates a hostile environment, the school must take immediate action to eliminate the sexual harassment or sexual violence, prevent its recurrence, and address its effects.
Even where 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 sexual violence, the school 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 sexual violence does not relieve the duty to resolve complaints promptly and equitably.
Every school must have and distribute a policy against sex discrimination.
Every school must have a Title IX Coordinator, must have procedures in place for students to complain of sex discrimination, and make those procedures known to students. Those processes must ensure fair due process for both the alleged victim and perpetrator of the sexual harassment.
What is sexual harassment under Title IX?
Sexual harassment under Title IX regulations is conduct based on sex that satisfies one or more of the following:
Quid Pro Quo – This applies when a school or university employee has conditioned the provision of a service or educational benefit on another student’s participation in unwelcome sexual conduct. In other words, a school employee offers or withholds a benefit in exchange for sexual conduct. Quid pro quo does not apply to student-on-student harassment, but rather employee-to-student or employee-to-employee.
Unwelcome Conduct – Title IX defines “unwelcome conduct” as conduct based on gender that is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.
Specific Acts – Conduct based on sex that constitutes one or more of the following:
Sexual Assault, as defined by the Clery Act. The Clery Act defines sexual assault as “any sexual act, including rape, sodomy, sexual assault with an object, or fondling directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent.” Title IX does not, at this point, have a required definition for consent and the definition differs between universities.
Dating Violence, as defined by the Violence Against Women Act (“VAWA”). Dating violence involves violence committed by a person who has been in a social relationship of a romantic or intimate nature with the survivor.
Domestic Violence, as defined by VAWA. Domestic violence involves violence by the survivor’s current or former intimate partner, a person with whom the survivor shares a child, a person who is cohabitating with or has cohabitated with the survivor as a spouse or intimate partner.
Stalking, as defined by VAWA. Stalking is defined “as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others or to suffer substantial emotional distress.”
Conclusion
Title IX is complicated. If you are soon to file a complaint with your school or university’s Title IX office, or are in the middle of the procedure, an attorney at HB Advocates can guide you, advise you, and advocate for you to ensure the university is complying with the law, the process, and upholding your constitutional rights. You may also have a claim against your school under Title IX if it improperly handled your complaint or failed to uphold its duties to protect you from sex-based discrimination, sexual assault, or sexual harassment.
Sources
20 U.S.C. § 1681
34 C.F.R. §§ 106 et seq.
U.S. Dept. of Educ., Office for Civil Rights, Questions and Answers on the Title IX Regulations on Sexual Harassment, July 2021 (available at https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf)