Title IX was modeled after Title VI of the Civil Rights Act of 1964 and they both share a common purpose: to ensure that public funds derived from all the people are not utilized in ways that encourage, subsidize, permit, or result in prohibited discrimination against some of the people.29 Towards that end, both Title VI and Title IX broadly prohibit conduct by a recipient of federal financial assistance that results in a person being "excluded from participation in, . . . denied the benefits of, or . . . subjected to discrimination under" a federally-assisted program or activity.30
Title VI was enacted pursuant to Congress" dual authority under the Spending Clause31 and Section 5 of the Fourteenth Amendment.32 Thus, both Title VI and Title IX trace their roots to common constitutional sources.
Title IX, like Title VI, recognizes three general types of prohibited discrimination: (1) disparate treatment, (2) disparate impact, and (3) retaliation. Any effective and meaningful administrative enforcement program under Title IX must be prepared to address all three.
1. Disparate Treatment
Disparate treatment33 refers to actions that treat similarly situated persons differently on the basis of a prohibited classification. In the case of Title IX, the prohibited classification is sex. Under the disparate treatment theory of discrimination, the core question is whether a recipient, through its officials, has treated people differently on the basis of sex. Here, the applicable legal standards under Title VI and Title IX are generally identical and investigative officials can rely on case law decided under Title VI in establishing violations under Title IX.34
To establish disparate treatment, the fundamental task is to show that similarly situated individuals were treated differently because of, or on the basis of their sex. This requires that the decision maker was aware of the complainant's sex and took action at least in part based on that sex. This does not mean, however, that the evidence must show "bad faith, ill will or any evil motive on the part of the [recipient]."35 Disparate treatment prohibits unjustified sex-based distinctions regardless of the motivation behind those distinctions. For example, many statutory or administrative schemes that illegally discriminate on the basis of sex were created or were subsequently justified as efforts to address the special needs of a particular sex.36 It is not a harmful motive, but the decision to treat differently on the basis of sex, that runs afoul of Title IX.
Evidence of discriminatory intent may be direct or circumstantial and may be found from various sources, including statements by decision makers, the historical background of the events in issue, the sequence of events leading to the decision in issue, a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct, and statistical evidence.37
Direct proof of discriminatory intent is often unavailable. In the absence of such evidence, claims of intentional discrimination under Title IX may be analyzed using the Title VII burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).38
Applying the McDonnell Douglas principles to a Title IX claim, the investigating agency must first determine whether the case file raises an inference of discrimination, i.e., the investigating agency must establish a prima facie case. The elements of a prima facie case may vary depending on the facts of the complaint, but such elements often include the following:
1. that the aggrieved person was a member of a protected class;
2. that this person applied for, and was eligible for, an educational program operated by a recipient of federal financial assistance that was accepting applicants;
3. that despite the person's eligibility, he or she was rejected; and,
4. that the recipient selected applicants of the complainant's qualifications of the other sex – or that the program remained open and the recipient continued to accept applications from other applicants.39
If the case file contains sufficient evidence to establish a prima facie case of discrimination, the investigating agency must then determine whether the recipient can articulate a legitimate, nondiscriminatory reason for the challenged action.40 If the recipient can articulate a nondiscriminatory explanation for the alleged discriminatory action, the investigating agency must determine whether the case file contains sufficient evidence to establish that the recipient's stated reason was a pretext for discrimination. In other words, the evidence must support a finding that the reason articulated by the recipient was not the true reason for the challenged action, and that the real reason was discrimination based on sex.41
Similar principles may be used to analyze claims that a recipient has engaged in a "pattern or practice" of unlawful discrimination. Such claims may be proven by a showing of "more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts."42 The evidence must establish that a pattern of discrimination based on sex was the recipient's "standard operating procedure — the regular rather than the unusual practice."43 Once the existence of such a discriminatory pattern has been proven, it may be presumed that every disadvantaged member of the protected class was a victim of the discriminatory policy, unless the recipient can show that its action was not based on its discriminatory policy.44
It is also important to remember that some claims of intentional discrimination may involve the use of policies or practices that explicitly classify individuals on the basis of sex. Such "classifications" may constitute unlawful discrimination. For example, the Supreme Court held in a Title VII case that a policy that required female employees to make larger contributions to a pension fund than male employees created an unlawful classification based on sex.45 The investigation of such claims should focus on the recipient's reasons for utilizing the challenged classification policies. Most such policies will be deemed to violate Title IX (assuming the actions occurred in an education or training program) unless the recipient can articulate a lawful justification for classifying people on the basis of sex.
2. Disparate Impact
In contrast to disparate treatment, which focuses on the intent to cause sex-based results, disparate impact focuses on the consequences of a facially sex-neutral policy or practice. Under this theory of discrimination, the core inquiry focuses on the results of the action taken, rather than the underlying intent.46 Because of this difference in focus, evidence of a discriminatory intent or purpose is not required. Indeed, "intent" is not an element in the disparate impact analysis.
Following the Title VI model, Congress delegated to each funding agency the authority to implement Title IX's prohibition of sex discrimination in educational programs or activities of recipients of federal financial assistance by issuing regulations, and those regulations have the force and effect of law.47 In furtherance of this broad delegation of authority, federal agencies have uniformly implemented Title IX in a manner that incorporates and applies the disparate impact theory of discrimination.
The courts have sustained the use of disparate impact theory as lawful and proper exercises of agencies" delegated authority, even where the challenged actions or practices do not constitute intentional discrimination and thus are not prohibited directly by the explicit language of either Title VI or Title IX.48
Under the disparate impact theory, a recipient violates agency regulations by using a neutral procedure or practice that has a disparate impact on protected individuals, and such practice lacks a substantial legitimate justification. As in Title VI disparate impact cases, the elements of a Title IX disparate impact claim derive from the analysis of cases decided under Title VII disparate impact law. 49
In a disparate impact case, the focus of the investigation concerns the consequences of the recipient's practices, rather than the recipient's intent.50 To establish discrimination under a disparate impact scheme, the investigating agency must first ascertain whether the recipient utilized a facially neutral practice that had a disproportionate impact on the basis of sex.51 In doing so, the investigating agency must do more than demonstrate that the practice or policy in question is a "bad idea."52 The agency must show a causal connection between the facially neutral policy and the disproportionate and adverse impact on a protected group.53
If the evidence establishes a prima facie case, the investigating agency must then determine whether the recipient can articulate a "substantial legitimate justification" for the challenged practice.54 "Substantial legitimate justification" is similar to the Title VII concept of "business necessity," which involves showing that the policy or practice in question is related to performance on the job.55
To prove a "substantial legitimate justification," the recipient must show that the challenged policy was "necessary to meeting a goal that was legitimate, important, and integral to the [recipient's] institutional mission."56 The justification must bear a "manifest demonstrable relationship" to the challenged policy.57 In an education context, the practice must be demonstrably necessary to meeting an important educational goal, i.e. there must be an "educational necessity" for the practice.
If the recipient can make such a showing, the inquiry then turns to whether there are any "equally effective alternative practices" that would result in less adverse impact.58 Evidence of either will support a finding of liability.
Courts have often found Title VI disparate impact violations in cases where recipients utilize policies or practices that result in the provision of fewer services or benefits, or inferior services or benefits, to members of a protected group. A similar outcome should result under Title IX where sex is the basis for the differences in impact. For example, in Sharif v. New York State Educ. Dep't, 709 F. Supp. 345 (S.D.N.Y. 1989), the District Court applied a discriminatory effects test to analyze the Title IX claims of a class of female applicants for New York State Merit Scholarships who alleged that the state's sole reliance on SAT scores to determine eligibility for such scholarships disproportionately discriminated against women. The District Court, in granting the plaintiff's motion for a preliminary injunction, found that the stateÔs system of awarding Merit Scholarships had a discriminatory impact on women and constituted a violation of Title IX.59 See also Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984), in which the Ninth Circuit applied a discriminatory effects test to analyze the Title VI claims of a class of black school children who were placed in special classes for the "educable mentally retarded" ("EMR") on the basis of non-validated IQ tests. The Ninth Circuit upheld the district courtÕs finding that use of these IQ tests for placement in EMR classes constituted a violation of Title VI.60 Similarly, in Sandoval, the court held that discrimination on the basis of language, in the form of an English-only policy, had an unjustified disparate impact on the basis of national origin, and thus violated Title VI.61
In evaluating a potential disparate impact violation, it is important to examine whether there is a substantial legitimate justification for the challenged practice and whether there exists an alternative practice that is comparably effective with less of a disparate impact.62
For example, the Second Circuit in New York Urban League, reversed the district court's preliminary injunction for its failure to consider whether there was a "substantial legitimate justification" for a subway fare increase that had an adverse impact.63
[B]ut the district court did not consider, much less analyze, whether the defendants had shown a substantial legitimate justification for this allocation. The MTA and the State identified several factors favoring a higher subsidization of the commuter lines. By encouraging suburban residents not to drive into the City, subsidization of the commuter rails minimizes congestion and pollution levels associated with greater use of automobiles in the city; encourages business to locate in the City; and provides additional fare-paying passengers to the City subway and bus system. In these respects and in others, subsidizing the commuter rails may bring material benefits to the minority riders of the subway and bus system. The district court dismissed such factors, concluding that the MTA board did not explicitly consider them before voting on the NYCTA and commuter line fare increases. That finding is largely irrelevant to whether such considerations would justify the relative allocation of total funds to the NYCTA and the commuter lines (emphasis added).
Similarly, in Young by and through Young v. Montgomery County (Ala) Bd. of Educ.,64 the court ruled that even if a disparate impact were assumed, the defendants had established a "substantial legitimate justification."
[T]he Defendants presented evidence that Policy IDFA was adopted to address concerns that the M to M transfer program was being used to facilitate athletic recruiting in the Montgomery County school system and to help revitalize Montgomery's west side [minority] high schools. Both of these justifications are substantial and legitimate because they evince a genuine attempt by the Board of Education to improve the quality of education offered in [the] County.65
If a substantial legitimate justification is identified, the third stage of the disparate impact analysis is the challenging party's identification of a less discriminatory alternative.66 If there is an alternative policy or procedure that has less of an adverse impact but achieves the goals that were determined to be legitimate, the recipient should use that policy or procedure.
A right cannot exist in the absence of some credible and effective mechanism for its enforcement and enforcement cannot occur in the absence of a beneficiary class willing and able to assert the right. In order to ensure that beneficiaries are willing and able to participate in the enforcement of their own rights, a recipient's retaliation against a person who has filed a complaint or who assists enforcement agencies in discharging their investigative duties violates Title IX.67
The Title IX regulations incorporate the requirement in the Title VI regulations, which provides that "[n]o recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [Title VI], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subpart."68
Retaliation protections are designed to preserve the integrity and effectiveness of the enforcement process itself. Because of this purpose, the merits of any underlying complaint of sex discrimination are irrelevant in assessing a retaliation complaint.69 The prohibited conduct is the act of retaliation itself.
Moreover, protected activities include more than filing complaints seeking a vindication of personal rights.70 The Department believes that a narrow reading requiring the prior exercise of personal rights is inconsistent with the broad remedial purposes behind Title IX itself.71 It is important to re-emphasize that Title VI agency anti-retaliation regulations (incorporated into Title IX regulations) provide "[n]o recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [Title VI], . . ." Thus, anyone who asserts rights secured by Title IX is protected. Retaliation claims have their own remedial purpose in that they seek to ensure that rights created under a federal civil rights statute do not go unenforced for fear of adverse official reaction.72 This goal is undercut if recipients are allowed to retaliate against persons subject to their authority who publicly object to discrimination against others.
Four elements must be established to make out a prima facie case of retaliation:
1. The complainant engaged in activities or asserted rights protected under Title IX;
2. The recipient knew of the protected activity;
3. The recipient thereafter subjected the person to adverse action, treatment or conditions; and
4. There is a causal connection between the protected activity and the adverse action, treatment or conditions.73
Once a prima facie case of retaliation is established, the investigating agency must then determine whether the recipient can articulate a legitimate, nondiscriminatory reason for the adverse action. Id. If the recipient can offer such a reason, the investigating agency must then show that the recipient's proffered reason is pretextual and that the recipient's actual reason was retaliation. Id. A showing of pretext may be sufficient to support an inference of retaliation if the fact finder concludes that retaliation was the real purpose of the action. Id.
B. Employment Discrimination
Title IX has proven a helpful vehicle in addressing sex-based employment discrimination in educational programs and activities.
1. Scope of Coverage
Title IX and Title VI differ most in their scope of coverage. By way of summary, Title VI is broader as to the types of programs or activities covered (i.e., it covers all the operations of a recipient's programs and activities) but narrow in its ability to reach employment discrimination. Specifically, Title VI prohibits employment discrimination on the part of a recipient only where a purpose of the federal financial assistance received is to provide employment. 42 U.S.C. §2000d-3.74 Title IX, on the other hand, is narrower as to the types of programs or activities covered (i.e., it only covers educational components) but broader in that it reaches employment discrimination. Because Title IX does not contain limiting language as does Title VI, the courts have concluded that Title IX reaches employment discrimination in the educational programs or activities of recipients without limitation.75
Consistent with this construction, most federal agencies have joined in adopting final regulations implementing Title IX which broadly prohibit "discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a recipient that receives Federal financial assistance."76
2. Relationship to Title VII
The enforcement schemes of Title IX and Title VII overlap in the area of employment discrimination.
a. Substantive Standards
In resolving employment actions, the courts have generally held that the substantive standards and policies developed under Title VII to define discriminatory employment conduct apply with equal force to employment actions brought under Title IX.
. . .[W]hen a plaintiff complains of discrimination with regard to conditions of employment in an institution of higher learning, the method of evaluating Title IX gender discrimination claims is the same as those in a Title VII case.77
The use of case law and policies developed under Title VII is similarly appropriate in the administrative setting. In conducting investigations alleging employment discrimination, agencies shall consider Title VII case law and EEOC Guidelines, 29 CFR parts 1604-1607, unless inapplicable, in determining whether a recipient of Federal financial assistance has engaged in an unlawful employment practice.78
b. Procedural Standards
While the courts, including the Supreme Court, have looked to the substantive standards and policies developed under Title VII as either controlling or helpful in evaluating claims of employment discrimination under Title IX,79 the same cannot be said of Title VII's procedural requirements.
The Supreme Court has yet to explicitly decide whether the far more detailed and comprehensive procedural requirements of Title VII are applicable to claims of employment discrimination brought under Title IX. The lower courts that have faced this question are divided. One view treats Title IX as an independent basis for finding discrimination based on the substantive standards of Title VII, but divorced from its administrative requirements.80 Under this view, complainants filing complaints under Title IX are not subject to Title VII's filing deadlines, exhaustion of administrative remedy requirements, and state referral requirements, but are still governed by Title VII's substantive standards. The other view is that the more focused and detailed enforcement scheme of Title VII preempts Title IX in the area of employment discrimination.81 Under this view, employees of federally assisted education programs operated by recipients of federal financial assistance have only a Title VII remedy for sex-based employment discrimination.
The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations. This view is consistent with the Supreme Court's decisions on Title IX's coverage of employment discrimination, as well as the different constitutional bases for Title IX and Title VII. Of course, this view is important only for individuals wishing to file private rights of action in courts. Federal agencies responsible for investigating Title IX complaints alleging employment discrimination must follow the procedures discussed in Section B(5) of this chapter. This section describes a regulation jointly issued by the Department of Justice and Equal Employment Opportunity Commission,82 which sets out procedures for processing employment complaints covered by both Title VII and Title IX.
3. Prohibited Employment Practices
As noted above, the Title IX common rule specifically incorporates the disparate impact standard as part of its prohibitions against sex-based employment discrimination.83 In addition, the Title IX common rule applies its prohibition against sex-based discrimination to the full range of activities related to the recruitment, evaluation, classification, payment, assignment, retention or treatment of employees.84 The Title IX common rule addresses various areas including the treatment of pregnancy as a temporary disability, pre-employment inquiries regarding marital or parental status, imposition of employment criteria or testing devices having a disproportionate impact, recruitment, and compensation and benefits (including equal pension contributions and benefits).
Where the Title IX common rule does not address some aspect of the employment relationship or where more detailed guidance is required beyond that provided by the Title IX common rule (and if there is no relevant guidance issued by the Department of Education interpreting its Title IX regulations), agency officials should review and apply the applicable standards and policies developed under Title VII.
4. Special Considerations
Two areas raise special considerations requiring specific discussion. In some cases, recipients may attempt to modify their obligations under Title IX in an effort to comply with other legal or contractual obligations. In other cases, recipients may attempt to create sex-sensitive criteria for employment in specific types of positions.
a. Competing Legal Obligations
Recipients are sometimes subject to competing and/or contradictory requirements having the potential to interfere with their ability to fully discharge their Title IX obligations. These competing obligations might result from state or local laws or find their source in third party labor or service contracts. They could include, for example, limitations or restrictions on the number of hours worked or types of jobs filled by women. Given the Supremacy and Spending Clauses, however, a recipient's federal obligation to comply with Title IX to eliminate unjustified sex-based discrimination in employment is superior to its obligation to comply with local law or third party contracts. In pertinent part, the Title IX common rule provides that:
(a) Prohibitory requirements. The obligation to comply with §§___.500 through ___.550 is not obviated or alleviated by the existence of any State or local law or other requirement that imposes prohibitions or limits upon employment of members of one sex that are not imposed upon members of the other sex.
Thus, in cases of conflict between the requirements of Title IX and obligations imposed by local law or third party contracts, Title IX controls. If an entity does not want to follow Title IX, it is free to simply decline federal financial assistance but it still may be subject to Title VII.
b. Sex as a BFOQ.
As noted above, Title IX generally incorporates the standards and policies developed under Title VII of the Civil Rights Act of 1964, as amended. Among those standards is the recognition that, in extremely limited circumstances, sex may constitute a bona fide occupational qualification ("BFOQ"). It bears emphasis that BFOQ's are very narrow exceptions.85
The Title IX common rule acknowledges and incorporates the BFOQ exception at §___.550.
A recipient may take action otherwise prohibited . . .provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action is essential to successful operation of the employment function concerned. A recipient shall not take action pursuant to this section that is based upon alleged comparative employment characteristics or stereotyped characterizations of one or the other sex, or upon preference based on sex of the recipient, employees, students or other persons, but nothing contained in this section shall prevent a recipient from considering an employee's sex in relation to employment in a locker room or toilet facility used only by members of one sex.
In evaluating claims that sex-based job qualifications are justified as a BFOQ, agency investigative officials should consult and apply the standards and case law developed under Title VII with respect to this narrow exception.
5. Regulatory Referral to EEOC
Complaints received by federal agencies that allege sex-based employment discrimination should be processed in conformity with the "Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance."86 These Joint Complaint Procedures, promulgated jointly by the Department of Justice and the Equal Employment Opportunity Commission in 1983, are intended to "reduce duplicative efforts by different Federal agencies . . . reduce the burden on employers [and] allow . . . agencies to focus their resources on allegations of services discrimination."87 As discussed below, these procedures require referral of employment complaints to the Equal Employment Opportunity Commission in some circumstances.
Under the Joint Complaint Procedures, complaints are deemed filed with the EEOC as of the date the complaint was received by the sister federal agency. Moreover, the Joint Complaint Procedures require that the recipient be advised of receipt of the employment complaint within 10 days.88 Within 30 days of receipt, the receiving agency is to determine its jurisdiction over the complaint and the procedure under which it will be handled.89
In those cases where the agency does not have jurisdiction over the employment complaint (i.e., the alleged discriminating entity does not receive federal financial assistance or it receives federal financial assistance but does not have an educational component), the agency is to transfer the complaint to the EEOC and advise both the complainant and the recipient of the specific office of the EEOC to which the complaint is being transferred.
Where the complaint alleges employment discrimination over which both the agency and EEOC have parallel authority (i.e., a "joint" complaint), the Joint Complaint Procedures direct that, absent "special circumstances,"90 individual complaints should be directed to the EEOC for processing with the referring agency's action deferred pending completion of the EEOC complaint process. In the case of a joint complaint alleging a pattern or practice of employment discrimination, however, the Joint Complaint Procedures reverse the referral presumption. In these cases, the Procedures contemplate that the agency will retain investigative and enforcement authority over the complaint absent "special circumstances" warranting a referral to the EEOC. Finally, where the complaint alleges discrimination in both the provision of educational services and employment, the Joint Complaint Procedures again direct that, absent special circumstances, the agency should retain its authority over the complaint rather than refer the matter to the EEOC.
The rationale behind the referral rules set out in the Joint Complaint Procedures is not difficult to discern. Given Title VII's specific focus on employment discrimination and EEOC's nationwide system of complaint adjudication offices, it is logical to refer all individual complainants to the expert federal agency. However, complaints alleging a pattern or practice of employment discrimination or discrimination in the provision of educational services, implicate the core integrity of the educational program or activity of the recipient of federal financial assistance. In these cases, logic and the greater expertise of the funding agency regarding the core purposes of the federal financial assistance argue in favor of its retaining jurisdiction over these broader complaints.
C. Specific Provisions
1. Specific prohibitions (§ __.400(b))
Under the Title IX common rule, as a general matter, in providing any aid, benefit, or service, a recipient may not, on the basis of sex:
- Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
- Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
- Deny any person any such aid, benefit, or service;
- Subject any person to separate or different rules of behavior, sanctions, or other treatment;
- Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition.
- Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
- Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
65 Fed. Reg. at 52870.
2. Housing (§__.405)
Under the Title IX common rule, a recipient may not apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing. However, a recipient may provide separate housing on the basis of sex if such housing is both proportionate in quantity to the number of students of each sex applying for the housing and comparable in quality and cost to the student. A recipient which assists an agency, organization, or person in making housing available to any of its students – such as through solicitation, listing, approval, or otherwise – must take reasonable steps to assure itself that such housing, as a whole, also meets these requirements. However, a recipient may render such assistance to an agency, organization, or person that provides all or part of such housing to students of only one sex. 65 Fed. Reg. at 52871.
3. Comparable Facilities (§ __.410)
Under the Title IX common rule, recipients of federal financial assistance must not discriminate in providing facilities on the basis of sex. A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex. However, such facilities provided to one sex must be comparable to the facilities provided to the other sex. 65 Fed. Reg. at 52871.
4. Access to Course Offerings (§ __.415)
A recipient generally may not provide an education program or activity separately on the basis of sex or require or refuse participation by an individual of a certain sex in courses such as health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses on the basis of sex.91 65 Fed. Reg. 52871. However, in a prison setting, penal necessities may require educational programs and activities to be offered separately on the basis of sex. While separate courses may be offered in a prison setting, penal necessity is not a defense for failing to provide equality of access to comparable educational programs to male and female inmates.
5. Counseling and use of appraisal and counseling materials (§ .425)
Under the Title IX common rule, a recipient may not discriminate against any person on the basis of sex in the counseling or guidance of students or applicants for admission. Specifically, in appraising or counseling students, a recipient must not use different testing or other materials on the basis of sex or use materials that permit or require different treatment of students on the basis of sex. Such different materials may be used, however, where they cover the same occupational interest areas and their use is shown to be essential to eliminate sex bias. Finally, where a recipient finds that a particular class contains a substantially disproportionate number of individuals of one sex, the recipient must take such action as is necessary to assure itself that such disproportion is not the result of discrimination on the basis of sex in counseling or appraisal materials or by counselors. 65 Fed. Reg. at 52871.
6. Financial Assistance (§ __ .430)
When a recipient provides financial assistance to any student participating in an educational program or activity, the recipient must ensure that it does not provide different types or amounts of assistance, limit eligibility for such assistance, apply different criteria, or otherwise discriminate in the provision of financial assistance on the basis of sex. See 65 Fed. Reg. 52871 at § .430(a)(1). Similarly, the recipient must not assist, solicit, list, approve, provide facilities to, or assist in any other manner, a "foundation, trust, agency, organization, or person that provides such assistance to any of the recipient's students" in a sexually discriminatory manner. 65 Fed. Reg. 52871 at §___.430(a)(2).
Although recipients are allowed to administer or assist in administering specific sex-restricted scholarships, fellowships, or other forms of financial assistance to students through a domestic or foreign will, trust, bequest, or similar instrument, the Title IX regulations require that the overall effect of such sex-restricted financial assistance not discriminate on the basis of sex. 65 Fed. Reg. 52872 at §___.430(b). To ensure compliance with Title IX regulations, recipients must develop and use procedures that select students to be awarded financial assistance in a nondiscriminatory manner and not on the basis of availability of funds restricted to members of a particular sex. 65 Fed. Reg. 52872 at § .430(b)(2)(i). This means that a recipient cannot deny a scholarship or other financial assistance to an individual because the available monies are restricted to members of a particular sex. For example, recipients must select in a sex neutral fashion who is eligible for assistance. They are than free to allocate assistance to those selected individuals from among sex restricted scholarships. However, they cannot deny assistance to selected individuals because scholarships or other financial assistance is sex restricted.92
7. Employment Assistance (§ __.435)
A recipient who assists any agency, organization, or person in making employment available to its students must ensure that the employment is not provided in a discriminatory manner on the basis of sex. If the agency, organization, or person is offering employment in a discriminatory manner, the recipient must not assist such an agency, organization, or person by providing its employment service. 65 Fed. Reg. 52872 at § ___.435(a)(1),(2).
8. Health and insurance benefits and services (§ .440)
Under the Title IX common rule, a recipient must not discriminate on the basis of sex in providing health and insurance benefits or services. Specifically, the provision of such benefits and services to students must meet the same requirements as outlined in the employee provisions of the common rule. 65 Fed. Reg. at 52873-52874. However, these provisions do not prohibit a recipient from providing any benefit or service that may be used by a different proportion of students of one sex than of the other, including family planning services. However, any recipient that provides full coverage health service must provide gynecological care. 65 Fed. Reg. at 52872.
9. Marital or Parental Status (§ __.445)
A recipient must not apply any rule concerning a student's actual or potential parental, family, or marital status that treats students differently on the basis of sex. 65 Fed. Reg. 52872 at § __.445(a). A student's pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery from such termination of pregnancy must be subjected to the same policies that a recipient applies to any other temporary disability in terms of medical or hospital benefits, service, plan, or policy available all students in a recipient's education program or activity. 65 Fed. Reg. 52872 at § __.445(b)(4). Where a recipient does not maintain a leave policy for its students, or where a student does not otherwise qualify for leave under a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began. 65 Fed. Reg. 52872 at § __.445(b)(5).
A recipient must not exclude any student from participating in its educational program or activity, including extracurricular activities, based on the student's pregnancy, childbirth, false pregnancy, termination or pregnancy, or recovery from such termination, unless the student voluntarily requests to be excluded from the program or activity and placed in a separate portion of the program. 65 Fed. Reg. 52872 at § __.445(b)(1).
In the context of high schools, at least two court decisions have addressed the issue of a pregnant student's participation in extracurricular activities. In Wort v. Vierling, the local chapter of the National Honor Society dismissed a high school student who became pregnant. The high school officials claimed that she was removed from the honor society because of deficiency in character by engaging in pre-marital sex, not because of her pregnancy status. Vierling, No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984), aff"d on other grounds, 778 F.2d 1233 (7th Cir. 1985). The district court, properly in the Department of Justice's view, rejected this claim and held that the student was excluded from participating in the honor society on the basis of her sex in violation of Title IX. Id.
Several years later, a high school student in Pennsylvania was also dismissed from the National Honor Society when she told school officials of her pregnancy. Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990). Here the court of appeals refused to overturn the district court's ruling in favor of the school district. According to the court, there was no clear factual error in the lower court's conclusion that the school officials dismissed the student because her leadership and character in the honor society were compromised when she engaged in pre-marital sex and not because of the resulting pregnancy from such conduct. Pfeiffer, 917 F.2d at 784 (1990). The court did, however, remand the case to the lower court to reconsider proffered testimony regarding a male honor society student who engaged in premarital sex, became a father, and married the mother of his child during high school, but was allowed to retain honor society membership. Id. at 785-786.
Under the Title IX regulations, a recipient is allowed to require students who are pregnant or have a related condition to obtain certification from a physician to confirm that a student is physically and emotionally able to continue participation in a recipient's program. However, the recipient may only do so if such certification is required of all students for other physical or emotional conditions that require a physician's attention. 65 Fed. Reg. 52872 at § __.445(b)(2). If a recipient provides a portion of its program or activity separately to a student who is pregnant or has a related condition and who voluntarily chooses such a program, the recipient must ensure that the separate portion is comparable to the program offered to students who are not pregnant. 65 Fed. Reg. 52872 at § __.445(b)(3).
10. Athletics (§ __.450)
Title IX regulations provide that:
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 intramural athletics offered by a recipient, and no recipient shall provide such athletics separately on such basis.
65 Fed. Reg. 52872 at § ___.450(a).
The regulations also provide that:
a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of these Title IX regulations, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
65 Fed. Reg. 52872 at § ___.450(b)
The regulations go on to provide that a recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal opportunity for members of both sexes. A number of factors are set forth to determine equality of opportunity including but not limited to the provision of equipment, scheduling of games and practice time, travel and per diem allowances, assignment and compensation of coaches, provision of locker rooms, provision of medical and training facilities, provision of housing and dining facilities and publicity. See 65 Fed. Reg. 52873 - 52874 at § ___.450(c).
The regulations give a recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the elementary, secondary, and postsecondary school levels an adjustment period to come into compliance with these requirements. No such adjustment period is set forth for other recipients. See 65 Fed. Reg. 52873 at § ___.450(d).
For additional guidance on how the Department of Education has interpreted these provisions as they apply to traditional educational institutions see Policy Interpretation-Title IX and Intercollegiate Athletics, 45 C.F.R. Part 26 (1979); OCR's Title IX Athletics Investigators Manual (1990); and Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996); Guidance on the Awarding of Athletic Financial Assistance (OCR letter to Bowling Green, July 23, 1998).
11. Textbooks and Curricular Material (§ __.455)
The Title IX regulations provide that the content of textbooks or the use of other curricular materials in any education program or activity are not actionable under Title IX. 65 Fed. Reg. 52873.
D. Sexual Harassment
Title IX protects students from sexual harassment in educational programs or activities operated by recipients of federal funding. The protection against sexual harassment derives from the general prohibitions against sex discrimination contained in the Title IX common rule at _.400. Those provisions state in relevant part:
(a)General. Except as provided elsewhere in these Title IX regulations, no person shall, on the basis of sex, be excluded from participation in, be subjected to discrimination under any . . . education program or activity operated by a recipient that receives Federal financial assistance.
* * * * *
(b) . . . in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such persons satisfies any requirement or condition for provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
* * * * *
(6) Aid of perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit or service to students or employees:
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
65 F.R. 52870
Moreover, if a recipient discriminates on the basis of sex, it must take remedial action to overcome the effects of the discrimination. The common rule at _.110(a)provides:
(a) Remedial action. If the designated agency official finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the designated agency official deems necessary to overcome the effects of such discrimination.
65 F.R. 52866
A very comprehensive guidance document concerning sexual harassment in federally funded education programs and activities was issued by the Department of Education, Office for Civil Rights on March 13, 1997. A revised guidance document, with a request for comments, was issued on November 2, 2000. Department of Education's Proposed Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 65 Feg. Reg. 66092 (2000) (the final Sexual Harassment Guidance is anticipated for a January 2001 publication)("Sexual Harassment Guidance"). The Sexual Harassment Guidance provides educational institutions that receive federal financial assistance from the Department of Education with information regarding the legal standards that should be used in investigating and resolving allegations of sexual harassment of students by school employees, other students, and third parties. The Sexual Harassment Guidance also can provide guidance for entities other than educational institutions that administer education and training programs covered by Title IX. Although some general principles are discussed below, readers should consult the Sexual Harassment Guidance for details on investigating sexual harassment complaints. To the extent that information in this Manual is construed to conflict with the Sexual Harassment Guidance, the Department of Education Sexual Harassment Guidance should be followed.
2. General Legal Standards, Relationship between Title IX and Title VII
As noted in the previous section on employment, courts generally apply standards established under Title VII regarding what constitutes discrimination to guide their interpretation in Title IX cases. Although, as discussed below, the Supreme Court held that the Title VII and Title IX standards for assessing a defendant's liability for money damages in private litigation differ, similar standards have been applied in defining actionable misconduct. See, for example, Alexander v. Yale Univ., 459 F. Supp. 1, 4 (D. Conn. 1977), aff"d 631 F. 2d 178 (2d Cir. 1980)(comparing sex discrimination in educational settings with sex discrimination in employment settings and deciding that quid pro quo sex harassment provides a cause of action under Title IX as it does under Title VII). Several years after the decision in Alexander, the Supreme Court declared that courts should accord Title IX "a sweep as broad as its language" when interpreting Title IX's scope. North Haven v. Bell, 456 U.S. at 521 (quoting United States v. Price, 383 U.S. 787, 801 (1966)(Congress" use of the phrase "no person shall be subjected to discrimination" in Title IX's statutory language means that employees, as well as students, are covered by its antidiscrimination provision.) As a result, courts interpreted Title IX as prohibiting hostile environment harassment in cases involving employees of educational institutions receiving federal funds. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
As the body of Title IX sex harassment law has evolved, the definitions of what conduct constitutes sexual harassment have remained largely the same under Title IX and Title VII but the legal standards for assessing a defendant's liability for damages in private litigation under the two statutes have begun to diverge. The Supreme Court has held that a school must be deliberately indifferent in the face of actual knowledge of the misconduct in order to be liable for money damages in private litigation under Title IX. Id. In contrast, under Title VII, an employer may be liable for money damages, under certain circumstances, for a supervisor's harassment of a subordinate even without notice. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). For this reason, we will specifically note in this chapter if a case is based on Title VII.
Importantly, for purposes of administrative enforcement of Title IX and as a condition of receipt of federal financial assistance –- as well as in private actions for injunctive relief -- if a recipient is aware, or should be aware, of sexual harassment, it must take reasonable steps to eliminate the harassment, prevent its recurrence and, where appropriate, remedy the effects. See Department of Education's Sexual Harassment Guidance.
a. Identity of Harasser
Title IX prohibits sexual harassment by teachers or other employees of the federally funded entity administering an education program or activity. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)(school liable for money damages in private litigation under Title IX for teacher/student sex harassment if school had actual knowledge of the misconduct and was deliberately indifferent); Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992)(coach/teacher sexual harassment of high school student actionable under Title IX).
2. Program participants
Title IX also prohibits sexual harassment of one participant by another participant in a program. See Davis v. Monroe County Board of Education, 526 U.S. 629 (fifth grade student's claim of harassment by classmate could be actionable under Title IX).
b. Same-sex harassment
Title IX's prohibition of discrimination on the basis of sex can include protections against same-sex harassment. The Supreme Court has ruled that same-sex sexual harassment can constitute discrimination on the basis of sex under Title VII. See Oncale v. Sundowner Offshore Servs., et al, 523 U.S. 75 (1998) (male employee's sexual harassment claim against former employer and against male supervisors and co-workers may be actionable under Title VII). Similarly, lower courts have held that Title IX applies even if the participant and harasser are of the same sex. Kinman v. Omaha Pub. Sch. Dist., 94 F. 3d 463 (8th Cir. 1996)(female student's allegation of sexual harassment by female teacher sufficient to raise claim under Title IX); Doe v. Petaluma County Sch. Dist., 949 F. Supp. 1415 (N.D. Cal. 1996)(female junior high school student's allegation of sexual harassment by other students, including both boys and girls, sufficient to raise a claim under Title IX).
c. Gender Harassment
While it is clear that discrimination in violation of Title IX must be "on the basis of sex," courts have held that subjecting an individual to sex stereotyping may constitute sex discrimination in appropriate circumstances. In Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), a Title VII case, the plaintiff was denied partnership in an accounting firm, due, in part, to the attitudes of the senior partners who described her as "macho" and advised her to wear makeup and jewelry and to dress in more feminine clothing. Id. at 235. The Supreme Court explained:
In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender... As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the spectrum of disparate treatment of men and women result from sex stereotypes.
Id. at 250-51. (citations and internal quotations omitted).
Several circuit courts have also addressed gender-based harassment on the basis of stereotyping. Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252 (1st Cir. 1999)(Title VII); Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F. 3d 276, 289 (2nd Cir. 1998)(Title VII)("Evidence of sexual stereotyping may provide proof that an employment decision or an abusive environment was based on gender.")(citing Price Waterhouse, 490 U.S. at 250-51 (Title VII); Lindahl v. Air France, 930 F. 2d 1434, 1439 (Title VII)(9th Cir. 1991); Sheehan v. Purolator, Inc., 839 F. 2d 99, 106-77 (Title VII)(2nd Cir.)(Kearse, J., dissenting, cert. denied, 488 U.S. 891, 109 S.Ct. 226 (1988)). Since Title VII legal theories are often used by courts to evaluate Title IX claims, sex stereotyping may violate the Title IX prohibition of discrimination on the basis of sex. The fact that the harassment was based on the perception that the individual was not properly "manly" or "feminine" may, in appropriate circumstances, be the basis for a sex stereotyping claim filed under Title IX.
d. Off-premises misconduct
Sexual harassment may be prohibited even when it does not occur on the program provider's premises, as long as the off-premises activity during which the sexual harassment takes place relates to the covered educational program. Crandell, D.O. v. New York College of Osteopathic Med., 87 F. Supp. 2d 304 (S.D.N.Y. 2000)(off-campus misconduct actionable under Title IX where harassment occurred in clinic during the student's paid internship). Thus, harassment that occurred off the premises of an education program operated by a recipient of federal assistance would be covered. For example, if a federally assisted museum conducted a lecture series which included field trips away from the museum, harassment that occurred on the field trips would be covered.
e. Appropriate Remedial Measures
Although courts have not yet ruled on what measures are appropriate for a recipient to take to remedy sex harassment in a context not involving an educational institution, the Department of Education's Sexual Harassment Guidance provides a starting point for analysis. If an educational provider determines that sexual harassment has occurred, it should take reasonable, timely, appropriate corrective action, including steps tailored to the specific situation. Sexual Harassment Guidance at 66104 - 66106. For example, the provider may need to counsel, warn, or take more serious disciplinary action against the harasser, based on the severity of the harassment or any record of prior incidents. Sexual Harassment Guidance at 66104. In some instances, it may be appropriate to further separate the harassed participant and the harasser, or direct the harasser to have no further contact with the participant. These corrective measures should be designed to minimize, as much as possible, the burden on the participant who was harassed. Id.
In some situations, a provider may be required to provide other services to the participant who was harassed, if necessary to address the effects of the harassment. For instance, if an instructor gave a low grade to a participant because the participant failed to respond to the teacher's advances, the provider may be required to make arrangements for an independent assessment of the participant's work and, if necessary, change the grade accordingly, make arrangements for the student to take the course again with a different instructor, provide tutoring and/or counseling, or take other measures that are appropriate under t