Title IX is a federal education law that is part of the Educational Amendments Act of 1972. It prohibits sex discrimination in educational programs or educational activities that receive federal financial assistance. The type of discrimination in education covered by Title IX includes sexual harassment, pregnancy discrimination, equal opportunity in athletics, and sexual assault policies.
Educational programs and activities covered by Title IX include any operation of an educational institution, private employer, or governmental entity that receives federal financial assistance. These institutions, private employers, and governmental entities are known as “recipients.” Recipients can include such programs as a boating education program run by a county park that receives federal funding, or a community course on starting a small business that is sponsored by an entity that receives funding from the Small Business Administration. Title IX covers all institutions participating in the federal student financial aid program.
Sex discrimination is forbidden under Title IX, in connection to not only admissions and financial aid but also all other aspects of the educational experience, including recreational services, health services, college residential life programs, counseling, classroom assignments, and grading. Discrimination is also forbidden in employment and recruitment in connection with educational institutions that fall under Title IX.
What Counts as Federal Financial Assistance?
“Federal financial assistance” under Title IX can be direct or indirect, and it does not refer only to monetary funds. For example, colleges indirectly receive federal financial assistance by accepting students who pay using federal financial aid that was directly received by the students. Federal financial assistance can also be in the form of a land grant or use of a federal property for the recipient as reduced or no cost. Since the recipient is paying a discounted amount or nothing for the use of property, the federal government is financially assisting the recipient. Generally, a successor or transferee of the property is bound by Title IX if the same or a similar objective is pursued.
For example, if the Small Business Administration permits a state agency to use a building at no cost for community classes related to building small businesses, the building is a form of federal financial assistance. If a student complaints she has been sexually harassed by teachers for these classes, the student’s complaint can be investigated, and, if no resolution is reached, the federal financial assistance in the form of using the building at no cost may be terminated.
Enforcement of Title IX
The U.S. Department of Education enforces Title IX through the Office for Civil Rights (OCR), which is headquartered in Washington D.C. and also has 12 offices across the country. The OCR is responsible for making sure that any educational institutions or entities that receive federal financial assistance comply with Title IX. The OCR can investigate and resolve complaints filed by anybody alleging sex discrimination, and can also identify and provide remedies for sex discrimination about which nobody has made a formal complaint. When an investigation reveals a Title IX violation, the OCR can try to negotiate an appropriate remedy.
Private Right of Action Under Title IX
The Supreme Court established that individuals have an implied private right of action in connection with illegal discrimination. Most commonly, private lawsuits request an injunction that orders a recipient to do something or refrain from doing something. However, individuals can also request and obtain monetary damages in connection with intentional discrimination. The Supreme Court has indicated that unintentional discrimination presents a different situation in which monetary damages may not be available.
All universities covered by Title IX are required to give students prompt and equitable responses to rape, sexual assault, and harassment. This includes giving adult victims options about how to notify law enforcement authorities of the crime, even if it would bring bad publicity to the school.
Lawsuits for money damages that seek to hold educational institutions liable for sexual assault or harassment by peers are reviewed by standards developed by the U.S. Supreme Court through case law. There is a two-step test to determine whether an institution should be held accountable for a hostile environment at school. The plaintiff must show that an official with authority to address the discrimination had actual knowledge of it and failed to respond adequately, and the plaintiff must show the official’s deliberate indifference to take action to stop or provide a remedy for the harassment.
Moreover, the plaintiff needs to be able to show that the school exercised substantial control over the environment where the harassment occurred and the harasser, and that the harassment was pervasive, severe, and objectively offensive, such that it detracted from the victims’ education and resulted in the victim being denied equal access to the school’s resources and opportunities.