Procedural Requirements for Complying with Title IX
The procedures outlined in this chapter are based on those provided in the Title IX common rule 65 F.R. 52867 (§§ __.110 - __.140). The procedural requirements discussed in this chapter are also codified in the Department of Education Title IX implementing regulations, 34 C.F.R. § 106.4 - 106.9. Where the Title IX common rule differs from the Department of Education regulation, we have so noted.93
A. Assurances (§ __.115)
An applicant for or recipient of federal financial assistance must submit a written assurance to the funding agency that it will operate all of its education programs or activities in compliance with Title IX and the Title IX implementing regulations. The assurance must be provided either at the application stage or the award stage.94 It is important to note that by regulation this assurance must contain language that commits the applicant or recipient to undertake whatever remedial action is necessary to eliminate any existing sex discrimination or to eliminate the effects of past discrimination –- whether that discrimination occurred prior to or subsequent to the submission of the assurance.
Generally, the assurance obligates the applicant or recipient to comply with Title IX for the period during which the federal funding is extended. However, with respect to real property provided to operate an education program or activity, the assurance obligates the recipient (or a subsequent transferee) for the period during which the real property is used to provide an education program or activity. Likewise, if the federal funding consists of personal property such as computers, copiers, etc., the assurance remains in effect for the entire time the recipient retains ownership or possession of the property.
The funding agency is responsible for designating the form of the assurance and the extent to which such assurances will be required of the applicant's or recipient's subgrantees, contractors, subcontractors, transferees, or successors in interest. However, the assurance must include language that obligates the applicant or recipient to "comply with all federal statutes relating to nondiscrimination. These include but are not limited to: Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §1681-1683, 1685-1688)." The Supreme Court has upheld a funding agency's regulatory power to terminate a recipient's federal financial assistance for failure to execute an assurance of compliance with Title IX. Grove City College v. Bell, 465 U.S. at 574-575.
B. Self-evaluation (§ __.110)
Under the Department of Education's Title IX regulations, educational institutions must assess their current policies and procedures to determine whether those policies and procedures comply with Title IX and its implementing regulations within one year after the Title IX regulations apply to them; this is known as "the self-evaluation requirement." Educational institutions that have already fulfilled the self-evaluation requirements under the Department of Education Title IX regulations, 34 C.F.R. §106.3(c), do not have to conduct a second self-evaluation under the Title IX common rule. Thus, for example, if an educational institution receives funds from the Department of Education and has already done its self-evaluation under ED's Title IX rule, and, as a result of the Title IX common rule, is now subject to the Title IX regulations of the General Services Administration and the Department of Interior from which it also receives assistance, the institution does not have to perform another self-evaluation.
It is important to note that the self-evaluation requirement in the Title IX common rule applies only to recipients that are educational institutions (i.e., elementary and secondary schools, high schools, colleges, universities, etc.) that receive federal financial assistance. It does not apply to other educational programs and activities. For example, a prison that receives federal funds from the Department of Justice to administer a vocational training program is not subject to this regulatory requirement.
An educational institution must evaluate its current policies and procedures as they affect the admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the provider's education program or activity. To the extent these policies and procedures do not comply with the requirements of Title IX, the provider must: 1) modify the policies and procedures to bring them into compliance, and 2) take appropriate steps to remedy any discrimination that resulted from these practices. Further, an educational institution must keep records documenting the evaluation and any required modifications for at least three years and must be able to provide these documents to the funding agency upon request.
C. Dissemination of Policy (§ __.140)
Title IX requires all recipients to regularly and consistently notify the public – i.e., participants, employees, applicants, etc. –- that they do not discriminate on the basis of sex in the educational programs or activities that they operate. While the funding agency can determine the specific information to be contained in the notification, at a minimum the notice must state that the protection against sex discrimination also applies to employment in and admission to the program,95 and that any questions regarding the application of Title IX can be referred to the recipient's designated Title IX coordinator or to the funding agency.
The recipient must issue this notice within ninety days of the effective date of the Title IX implementing regulations or within ninety days of the date that the Title IX regulations apply to the recipient – whichever is later. The recipient must publish this notice in any recipient-operated newspapers and magazines96 or in the recipient's student and alumni publications, and by letter or memorandum to participants and employees. After the initial publication, all memoranda, bulletins, catalogs, and applications must contain a similar notice. A recipient should make sure that this policy is widely distributed and easily understood.
D. Designation of Title IX Coordinator (§ __.135(a))
Recipients must designate at least one employee to serve as a Title IX coordinator. This individual is responsible for coordinating the recipient's efforts to comply with and carry out its responsibilities under Title IX and its implementing regulations, including the investigation of any Title IX complaints against the recipient. The coordinator's name, address, and phone number must be communicated to all applicants, participants, and employees.
E. Adoption of Grievance Procedures (§ __.135(b))
One of the important aspects of Title IX and its implementing regulations is their requirement that recipients adopt and publish internal grievance procedures to promptly and equitably resolve complaints alleging discrimination on the basis of sex. The responsibility lies with the recipient to establish and maintain a mechanism whereby program participants and employees may seek to redress illegal sex discrimination and whereby the recipient may continually be apprized of and evaluate possible discriminatory policies and procedures and develop strategies to correct discrimination. Although Title IX does not specify a structure for the implementation of a grievance procedure, the U.S. Department of Education has suggested some of the basic components of an effective Title IX grievance procedure in a manual that it has issued on this topic. SeeTitle IX Grievance Procedures: An Introductory Manual, U.S. Department of Education, Office for Civil Rights (1987).
It is important to note that there is no private right of action for damages in the courts for a recipient's failure to promulgate a grievance procedure under Title IX. Courts have held that failure to meet this requirement, by itself, does not amount to discrimination on the basis of sex. Gebser v. Lago Vista Sch. Dist., 524 U.S. 274, 292 (1998), Seamons v. Snow, 84 F. 3d 1226 (10th Cir. 1996).
Despite the lack of a private right of action in the courts concerning the lack of a grievance procedure, the requirement to establish a prompt and equitable grievance procedure can be enforced administratively by the funding agency. The Supreme Court has specifically affirmed the Department of Education's authority to administratively enforce this regulatory requirement. Gebser, 524 U.S. at 292.