Title IX Legal Manual ::

Overview of Title IX: Interplay with Title VI, Section 504, Title VII, and the Fourteenth Amendment

In June 1972, President Nixon signed Title IX of the Education Amendments of 1972 into law. Title IX is a comprehensive federal law that has removed many barriers that once prevented people, on the basis of sex, from participating in educational opportunities and careers of their choice. It states that:

No person in the United States shall, on the basis of sex, be excluded from participation, in be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

20 U.S.C. § 1681, et seq. Title IX applies to all aspects of education programs or activities operated by recipients of federal financial assistance.1 In addition to educational institutions such as colleges, universities, and elementary and secondary schools, Title IX also applies to any education or training program operated by a recipient of federal financial assistance. For example, Title IX would cover such diverse activities as a forestry workshop run by a state park receiving funds from the Department of Interior; a boater education program sponsored by a county parks and recreation department receiving funding from the Coast Guard; a local course concerning how to start a small business, sponsored by the state department of labor that receives funding from the Small Business Administration; state and local courses funded by the Federal Emergency Management Agency in planning how to deal with disasters; and vocational training for inmates in prisons receiving assistance from the Department of Justice (hereinafter referred to as "DOJ" or "Justice Department" or "the Department"). Generally, it covers all aspects of the education program, including admissions, treatment of participants, and employment. Title IX guarantees equal educational opportunity in federally funded programs.

Congress consciously modeled Title IX on Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq., which prohibits discrimination on the basis of race, color, or national origin in programs or activities that receive federal funds. Note that Title VI's protections are not limited to "education" programs and activities, as are those of Title IX.

The two statutes both condition an offer of federal funding on a promise by the recipient not to discriminate, in what is essentially a contract between the government and the recipient of funds. Because of this close connection between the statutes, Title VI legal precedent provides some important guidance for the application of Title IX. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 694-98 (1979)(Congress intended that Title IX would be interpreted and applied as Title VI has been). Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally funded programs, was also modeled after Title VI and, hence, may also provide guidance for an analysis of Title IX. See Alexander v. Choate, 469 U.S. 287, 294 (1985)(Because Title IX, Section 504, and Title VI contain parallel language, the same analytic framework should generally apply in cases under all three statutes). These statutes were enacted to prevent unlawful discrimination and to provide remedies for the effects of past discrimination.

Although much of Title VI case law can be applied to Title IX situations, the analogy is not perfect because Title IX contains several important exemptions that are absent in Title VI. For example, with regard to single-sex admissions policies, Title IX's prohibitions against sex discrimination apply only to vocational, professional, graduate, and public undergraduate schools (except for those public institutions of undergraduate higher education that traditionally and continually from their establishment have had a policy of admitting only students of one sex).2 Title IX does not cover the single-sex admissions policies of elementary, secondary, (other than vocational schools), or private undergraduate schools.

Additional Title IX exemptions include the membership policies of certain university-based social fraternities and sororities, the Girl and Boy Scouts, the YMCA and YWCA, the Camp Fire Girls and certain other voluntary single-sex and tax-exempt youth service organizations whose members are chiefly under age 19.

Also exempt are any programs or activities of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; and any program or activity of a secondary school or educational institution specifically for the promotion of any Boys State conference, Boys Nation conference or the selection of students to attend any such conference. Further, Title IX does not apply to father-son or mother-daughter activities at an educational institution –- but if such activities are provided for students of one sex, reasonably comparable opportunities much be provided for members of the other sex. Finally, any scholarship or other financial assistance awarded by an institution of higher education to an individual because such individual has received such award in a single-sex pageant is exempt provided the pageant complies with other nondiscrimination provisions of federal law.

Title IX exempts from coverage any educational operation of an entity that is controlled by a religious organization only to the extent Title IX would be inconsistent with the religious tenets of the organization.3 For example, Title IX would not require a religiously controlled organization that trains students for the ministry to offer such training to women if the organization's religious tenets hold that all ministers must be men. Title IX also exempts institutions that train individuals for the military or the merchant marine.

In addition to the statutory exemptions discussed above, the Title IX common rule contains a few other exceptions permitting single-sex programs under certain limited circumstances. For example, section ___.110(a)requires appropriate remedial action if a designated agency official finds that a recipient has discriminated against persons on the basis of sex. In the absence of a finding of discrimination, section ___.110(b) permits affirmative action consistent with law to overcome the effects of conditions that resulted in limited participation in a program by persons of a particular sex. Either of these provisions could permit single-sex programs under appropriate circumstances. In addition, several other regulatory provisions permit single-sex programs: section ___.415(b)(5) permits portions of education programs or activities that deal exclusively with human sexuality to be conducted in separate sessions for boys and girls; section ___.445(b) permits a program offered to pregnant students on a voluntary basis that is comparable to that offered to non-pregnant students; sections ___.414(b)(2) and (6) permit recipients to make requirements based on objective standards of physical ability or of vocal range or quality; and section __ .415(b)(3) permits separation by sex in physical education classes involving contact sports. In addition, section 420(b) permits exclusion, on the basis of sex, of any person from admission to a nonvocational school operated by a local education agency, so long as "...such recipient otherwise makes available to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities comparable to each course, service, and facility offered in or through such schools." 4

It is important to note that even though Title IX carves out the above exceptions to its general prohibition on sex discrimination, governmental/public recipients may still have a constitutional duty not to discriminate on the basis of sex. Under the Equal Protection Clause of the Fourteenth Amendment, a governmental classification based on sex can be lawful only if the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724(1982)(nursing school could not justify excluding male applicants; policy violated the Fourteenth Amendment notwithstanding Title IX exemption, quoting, Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)). For example, even though Title IX may not prohibit a traditionally single-sex public entity providing training for nurses from excluding male applicants, the public entity must still demonstrate an "exceedingly persuasive justification" for the restrictive admission policy in order to survive an equal protection challenge. Id. at 724 (citing, Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)). See also United States v. Virginia, 518 U.S. 515 (1996)(U.S. Department of Justice successfully challenged military school's male-only admissions policy under Title IV of the Civil Rights Act.

The Title IX regulations contain a variety of procedural requirements, the most important of which is the requirement to establish grievance procedures. The regulations require that every recipient to which Title IX applies "adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that be prohibited by these Title IX regulations." § ___.135. These grievance procedures are an essential element in ensuring that Title IX and its implementing regulations are complied with in the least contentious manner possible.5

Unlike Title VI which covers employment only in limited circumstances, Title IX clearly covers employment discrimination. Title IX's availability as an independent basis to attack discriminatory employment practices does not mean, however, that its analytical and evaluative methodology is divorced from that used under Title VII of the Civil Rights Act of 1964. Rather, like Title VI, Title IX borrows heavily from Title VII in its theory and approach to sex-based employment discrimination. It is generally accepted outside the sexual harassment context that the substantive standards and policies developed under Title VII apply with equal force to employment actions brought under Title IX. By contrast, however, it is generally held that Title IX does not incorporate the procedural requirements of Title VII. For a more detailed discussion of the relationship between Title IX and Title VII, see Chapter IV(b) of this Manual. Section 5 of that chapter discusses the joint rule issued by the Department of Justice and the Equal Employment Opportunity Commission, which sets forth procedures that federal agencies are to utilize when processing Title IX employment cases.