For an explanation of how Title IX is misapplied to cause elimination of school sports teams, see the proportionality test.
Title IX is a section of the Higher Education Amendments Act of 1972 which mandates that no one "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" on account of sex. 20 U.S.C. § 1681(a). Title IX became law in 1972. This requirement applies to all aspects of an educational institution even if only one department within the institution receives federal aid.
Title IX applies to institutions receiving direct federal aid. In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme Court ruled that Title IX did not apply to schools that did not receive federal aid, even though the school's students received individual federal financial assistance. If any one department receives federal aid, the entire institution is subject to Title IX. Title IX does not apply to private, single-gender institutions, but it applies to all state institutions even if the school serves only one-gender. It applies to educational institutions of all grade levels from kindergarten to universities.
Title IX does not apply to military academies, social fraternities and sororities, or Boy or Girl conferences (such as Boys State). Title IX allows for gender-separated living facilities. Title IX does not apply to religious-controlled institutions to the extent that the discrimination is based on the institution's religious practices.
Regarding abortion, Title IX was amended in 1988 to provide:
"Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion."
This means that Title IX cannot be used to argue that female college students must be provided abortions as a part of their on campus health care.
As a practical matter, Title IX results in quota-like requirements in college sports, such that women's participation on team rosters (compared to men's) must be equal to their proportional enrollment in the school (compared to men's) under the proportionality test. Because football is a men's sport only and has the largest roster size (85 scholarship players), effectively a school that participates in football must add two additional women's programs to balance participation.
This is despite the fact that Congress expressly prohibited quotas:
- Nothing contained in . . . this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.
The author of Title IX, Representative Edith Green, later lamented that:
- In 1972 when we enacted the Higher Education Act--including Title IX--to end discrimination against women, we sought to be exceedingly explicit so that the establishment of quotas would be prohibited. I was surprised and dismayed when complaints from colleges and universities came in stating that the Department of Labor was requiring them to meet quotas. . . . Title IX was not designed to do away with intercollegiate sports.
The Department of Health, Education and Welfare (HEW) and later the Department of Education have issued regulations to implement Title IX. The Democratic Administrations of Presidents Jimmy Carter and Bill Clinton, have interpreted these regulations to say that a gender proportionality test may be applied to schools that receive any federal money concerning. This test causes these institutions to attempt to have the same proportion of boys and girls on sports teams as are enrolled in the school, regardless of interest in sports. Some seek to apply this proportionality test to math and science programs also.
Over 400 men's sports teams have been eliminated by the quota-based application of Title IX, including over 170 wrestling teams.
Title IX has been interpreted as prohibiting conduct that is sufficiently serious that it limits or denies a student's ability to benefit from a school's programs. The prohibition goes beyond official school policies to acts of harassment within the control of the school. For example, it prohibits teachers from sexually harassing students, and it prohibits student-on-student harassment. It is also the basis for lawsuits against institutions alleging discrimination based on sexual orientation. In 2001 the U.S. Department of Education issued this guideline:
|“||Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s program constitutes sexual harassment prohibited by Title IX||”|
Based on this interpretation, schools and colleges modified their student conduct systems to address allegations of sexual harassment by defining the prohibited conduct as well as the due process rights and procedures available to students, faculty and staff accused of harassment. Feminists then argued that an insufficient number of accused harassers were being found responsible under such procedures, and in response the Obama Administration issued a "Dear Colleague" letter and a Question and Answer list that made important policy changes without undergoing the notice and comment procedures required by the Administrative Procedure Act. The changes included mandating an easy to meet "preponderance of the evidence" standard instead of "proof beyond a reasonable doubt" or "clear and convincing evidence" standard when determining when the accused was responsible. The procedures combined the investigator and adjudicator role and limited the right to counsel and the cross examination of witnesses. As a result, schools processed a high number of sexual harassment cases, with many of the accused filing court cases against the schools seeking to overturn the improper results.
One of these cases reached the US Supreme Court. In Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), the Court determined that sexual harassment in the educational context is targeted, discriminatory conduct
|“||that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.||”|
The Court reached this definition in an effort to balance the free speech rights of the accused against the right of students to get an education. However, from 1999 to 2017, the Department of Education adopted a much broader definition that would allow students, faculty or staff to be punished if a "hostile environment" was created for the student, regardless of how much the accused contributed to that environment.
The Trump Administration, rescinded the "Dear Colleague" letter and conducted a full notice and comment rulemaking. Opponents of reform sought to delay the rulemaking by submitting 250,000 individual comments and seeking in-person meetings with the federal employees working on the rules. Nonetheless, the Department of Education issued final rules to be effective August 14, 2020. A number of advocacy groups then sought court injunctions to block the final rule from going into effect, without success. Meanwhile, schools seeking to punish students for making "politically incorrect" statements, adopted new Title IX rules that follows the definition of sexual harrassment from the final rule, but then defines "creating a hostile environment" as a separate violation. Although the Obama Administration forced schools to apply the "preponderance of the evidence" standard, the final rule lifted that unfair requirement and instead merely required a school to use the same standard when judging students, faculty and staff.
Student on student sexual issues
For centuries, colleges and universities have had to deal with the sexual activities of students. For most of this time, there were clear rules that were enforced by summary suspension from the school. As colleges dropped in loco parentis policies toward student conduct since the 1960s, an increasing portion of the undergraduate students have become sexually active. The problem arises when there are claims made after-the-fact that these encounters were not consentual. Typically, the male student would be brought before a campus judicial system, where there is a presumption of innocence, and the female student would testify against him. In many cases, both were drunk and did not have clear memories of the episode. Given the presumption of innocence and a requirement of proving the man guilty beyond a reasonable doubt, in a majority of cases, the male student would not be punished. Feminists then lobbied the Department of Education to interpret such disciplinary procedures as depriving female students of their full educational opportunities in violation of Title IX. The Department of Education calls romantic encounters that were later regretted "sexual violence."
On April 4, 2011, the Department of Education issued a "Dear Colleague Letter" claiming that colleges that receive federal funds had a duty to respond to "sexual violence." The Department of Education expanded the scope of Title IX without issuing a rulemaking or seeking new authority from Congress. On April 29, 2014, the Department of Education issued further guidance in the form of a 42-page question and answer sheet. These documents take the position that Title IX protects LGTB students from harassment:
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 and OCR accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations. Indeed, lesbian, gay, bisexual, and transgender (LGBT) youth report high rates of sexual harassment and sexual violence. A school should investigate and resolve allegations of sexual violence regarding LGBT students using the same procedures and standards that it uses in all complaints involving sexual violence.
With respect to any student-on-student complaint, 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." So, even if a school has a long-standing tradition of presuming the accused to be innocent and requiring proof beyond a reasonable doubt, the Department of Education's interpretation of Title IX is making it much easier to find that the male should be punished. In fact, the Title IX procedures requires the college to take steps against the accused while the proceeding is pending so as to avoid the student filing the complaint to feel exposed to potential harassment from the accused.
Also the accused male students have every incentive to allege that the woman had subjected him to sexual violence. Cases that were quietly resolved by campus judicial systems before this expansion of Title IX, now frequently result in extensive litigation.
“Due process is the foundation of any system of justice that seeks a fair outcome,” Secretary of Education Betsy DeVos said. “The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims.”
“I don’t think Washington has helped much and their presumption that universities aren’t dealing with this problem is wrong,” said Hunter R. Rawlings III, past Cornell President and past President of the Association of American Universities. “The federal government is demanding we be on top of the issue, but where they presume we’re not doing a good job it’s not helpful.”
Since the "Dear Colleague Letter" was never adopted as official regulation, it was reversed by the Trump Administration without any formal rulemaking process needed, a decision criticized by women's groups and liberals.
Today women outnumber men, often by huge percentages, at most colleges. Decades ago, however, when Title IX was enacted, there were a large number of single-sex institutions. Title IX did not apply to private, single-sex institutions. 20 U.S.C. § 1681(a)(1). The law gave institutions that changed to coed status a seven-year window of non-compliance during the transition.
Perhaps the most notable case involved admissions at the Virginia Military Institute (VMI), a state-owned college in Lexington, Virginia. In 1990 the US Department of Justice sued VMI seeking to end its all-male admissions policy. In response, Virginia created a Virginia Women's Institute for Leadership (VWIL) at Mary Baldwin College in Staunton, Virginia. Women seeking admission to VMI took the case to the United States Supreme Court, which ruled 7-1 that VMI must admit women based on the Fourteenth Amendment in United States v. Virginia. VMI then considered converting into a private college, but the Department of Defense threatened to withdraw its ROTC program if the school converted to being private. Finally, VMI's board voted 8-7 to admit women with the first class entering in 1997.
Some coeducational institutions used different admissions standards for male and female applicants. In 2009, the United States Civil Rights Commission launched an investigation into whether college admissions policies discriminated based on gender.
The Obama Administration issued a guidance letter taking the position that Title IX protected the rights of transgender students. In particular, grade schools receiving federal aid should allow students to use bathroom and locker facilities of their current gender rather than the gender indicated on their birth certificates. In response, North Carolina passed a law taking the opposite view, and 13 states sued the federal government and won an injunction blocking enforcement of Title IX on this issue.
Donald Trump campaigned on leaving the access to bathrooms issue up to state and local governments. He also stated that "Caitlyn Jenner could use whichever bathroom she wanted to at Trump Tower." On February 22, 2017, federal Education and Justice Department officials notified the Supreme Court that the administration is ordering the nation's schools to disregard memos the Obama administration issued during the previous two years regarding transgender student rights. The Trump Administration also sent a letter to all school systems receiving federal aid saying that the earlier directive needed to be withdrawn because it lacked extensive legal analysis, did not go through a public vetting process, sowed confusion and drew legal challenges. However, the Title IX guidance regarding bullying and the need to provide a safe environment for all students, including transgender students remains in place. Education Secretary Betsy Devos stated that the Department of Education's Office for Civil Rights “remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools,” and she noted that she considers “protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.”
This withdrawal of the Obama Administration policy prompted a series of public protests. The issue is expected to reach the Supreme Court soon in a case where a Virginia transgendered student sued under Title IX.
Private cause of action
Title IX does not contain an explicit provision allowing for private lawsuits. However, Congress later enacted the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, which authorizes an award of fees to prevailing private parties in actions to enforce Title IX as well as other Civil Rights laws. So, the courts have interpreted Title IX as allowing plaintiffs to sue educational institutions for monetary damages and other relief in addition to the enforcement efforts of the Office of Civil Rights of the United States Department of Education. The Supreme Court held in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), that Title IX is also enforceable through an implied private right of action. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Court established that monetary damages are available in private Title IX suits. Private lawsuits have been successful in a number of contexts:
In Franklin, a female high school student had been sexually harassed and abused by her male teacher. Although the teacher resigned on the condition that all claims against him be dropped, the suit continued against the school district for monetary damages. In Gebser v. Lago Vista Independent School District, 524 U.S. 274(1998), a female high school student had a sexual relationship with a male teacher, who was arrested when the school authorities found out. The student then sued the school district for money damages, but the Supreme Court held that damages could only be awarded if a supervisor in the school knew of the abuse, had the power to end it, but failed to do so. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) the Supreme Court held that if a school was "deliberately indifferent" to student-on-student sexual harassment, it would be liable for damages under Title IX. In Davis, a fifth grade boy was repeatedly harassing a girl student with the teachers and principal ignoring her parents' complaints.
Courts have interpreted Title IX to allow massive jury awards in cases where a coach is let go or not rehired. For example, a California trial court awarded over $5.8 million to an ex-volleyball coach because she claimed that a state college did not renew her coaching contract "because of her perceived sexual orientation and her speaking up on behalf of female athletes."
"Title IX requires complaining parties to meet a particularly tough test for money damages in a private lawsuit. Damages can be won only when a school district has shown 'deliberate indifference.'" This is in contrast with the standard under Section 1983 of the Civil Rights Act, and in 2009 the Supreme Court will decide whether both remedies are available for lawsuits against public schools, or only Title IX.
- 20 USC § 1681(a)(3).
- 20 USC § 1681(a)(6).
- 20 USC § 1681(a)(7).
- 20 USC § 1686.
- 20 USC § 1688.
- 20 U.S.C. § 1681(b).
- Edith Green, "The Road Is Paved With Good Intentions," Address at Brigham Young University (Jan. 25, 1977).
- "DeVos Slams ‘Failed’ Title IX System, Suggests ‘Better Way Forward’", Cornell Sun, September 7, 2017. Retrieved on September 7, 2017.
- Miners, Zach. "U.S. Civil Rights Commission Investigates College Admission Bias", November 18, 2009. Retrieved on August 30, 2012.
- "Trump administration rolls back protections for transgender students", Washington Post, February 22, 2017. Retrieved on February 22, 2017.
- Press Briefing by Press Secretary Sean Spicer, 2/22/2017, #14 (February 22, 2017). Retrieved on February 22, 2017.
- Seattle Times