Title IX: The Thirty-Seven Words That Changed America 1138916242, 9781138916241

Citation preview

Title IX

This book examines the history and evolution of Title IX, a landmark 1972 law prohibiting sex discrimination at educational institutions receiving federal funding. Elizabeth Kaufer Busch and William Thro illuminate the ways in which the interpretation and implementation of Title IX have been transformed over time to extend far beyond the law’s relatively narrow statutory text. The analysis considers the impact of Title IX on athletics, sexual harassment, sexual assault, and, for a time, transgender discrimination. Combining legal and cultural perspectives and supported by primary documents, Title IX: The Transformation of Sex Discrimination in Education offers a balanced and insightful narrative of interest to anyone studying the history of sex discrimination, educational policy, and the law in the contemporary United States. Elizabeth Kaufer Busch is Associate Professor and Director of American Studies at Christopher Newport University, and Founder and Co-Director of CNU’s Center for American Studies. William E. Thro is the General Counsel of the University of Kentucky and former Solicitor General of Virginia.

Critical Moments in American History Edited by William Thomas Allison, Georgia Southern University

A full list of titles in this series is available at: https://www.routledge.com/ Critical-Moments-in-American-History/book-series/CRITMO. Recently published titles: Bleeding Kansas Slavery, Sectionalism, and Civil War on the Missouri-Kansas Border Michael E. Woods The Marshall Plan A New Deal for Europe Michael Holm The Espionage and Sedition Acts World War I and the Image of Civil Liberties Mitchell C. Newton-Matza McCarthyism The Realities, Delusions and Politics Behind the 1950s Red Scare Jonathan Michaels Three Mile Island The Meltdown Crisis and Nuclear Power in American Popular Culture Grace Halden The 1916 Preparedness Day Bombing Anarchy and Terrorism in Progressive-Era America Jeffrey A. Johnson America Enters the Cold War The Road to Global Commitment, 1945–1950 Kevin Grimm Title IX The Transformation of Sex Discrimination in Education Elizabeth Kaufer Busch & William E. Thro

Title IX The Transformation of Sex Discrimination in Education

Elizabeth Kaufer Busch and William E. Thro

First published 2018 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Taylor & Francis The right of Elizabeth Kaufer Busch and William E. Thro to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-91624-1 (hbk) ISBN: 978-1-138-91625-8 (pbk) ISBN: 978-1-315-68976-0 (ebk) Typeset in Bembo and Helvetica Neue by Florence Production Ltd, Stoodleigh, Devon, UK

To Nathan E. Busch, Werner J. Dannhauser, Peter A. Lawler, Michael M. McQuaide, William Shapiro, and William E. Thro—Dedicated teachers, brilliant scholars, and beloved friends (one of whom is also my husband), who never treated me as lesser due to being a woman. Elizabeth Kaufer Busch

To Ernest G. Thro (1935–2008) and Joan Young Thro (1938–2016)—Educators who believed in equal opportunity for everyone. William E. Thro

Contents

Series Introduction List of Illustrations Acknowledgments Timeline Abbreviations

1

2

3

4

5

The Adoption of Title IX: A Ban on Sex Discrimination in Education

viii ix x xi xv

1

The Transformation of Equal Representation in Athletics: The 1979 Three-Part Test

21

The Expansion of Title IX Liability: The 1997 Sexual Harassment Guidance

44

Title IX’s Transformation of Campus Sexual Assault Trials: The 2011 Dear Colleague Letter

64

Title IX’s Untold Story

89

Documents Index

109 229

Series Introduction

Welcome to the Routledge Critical Moments in American History series. The purpose of this new series is to give students a window into the historian’s craft through concise, readable books by leading scholars, who bring together the best scholarship and engaging primary sources to explore a critical moment in the American past. In discovering the principal points of the story in these books, gaining a sense of historiography, following a fresh trail of primary documents, and exploring suggested readings, students can then set out on their own journey, to debate the ideas presented, interpret primary sources, and reach their own conclusions—just like the historian. A critical moment in history can be a range of things—a pivotal year, the pinnacle of a movement or trend, or an important event such as the passage of a piece of legislation, an election, a court decision, a battle. It can be social, cultural, political, or economic. It can be heroic or tragic. Whatever they are, such moments are by definition “game changers,” momentous changes in the pattern of the American fabric, paradigm shifts in the American experience. Many of the critical moments explored in this series are familiar; some less so. There is no ultimate list of critical moments in American history— any group of students, historians, or other scholars may come up with a different catalog of topics. These differences of view, however, are what make history itself and the study of history so important and so fascinating. Therein can be found the utility of historical inquiry—to explore, to challenge, to understand, and to realize the legacy of the past through its influence of the present. It is the hope of this series to help students realize this intrinsic value of our past and of studying our past. William Thomas Allison Georgia Southern University

Illustrations

TABLES 1.1 1.2 2.1 2.2 3.1 5.1 5.2

Notable Protections of Women Prior to Title IX Sex Segregation Permitted by Title IX Title IX Regulations Relating to Sports Key Court Decisions—Title IX and Athletics Supreme Court Decisions that Impact Title IX What Is Sex? Policy Changes Enacted by the OCR

6 13 31 37 55 94 100

FIGURES 4.1 The Evolution of Title IX to Include Peer Sexual Misconduct 5.1 How a Bill Becomes a Law

81 103

Acknowledgments

I owe a debt of gratitude to many. First, to my intellectual partner and loving husband, who gave up his research trips to afford me the time and intellectual space to work without distraction, and whose belief in me allowed me to pursue this project. To Bill Thro, whose encyclopedic knowledge of case history has expanded my knowledge and appreciation of ways in which education law transforms. To my beautiful boys Zachary and Ethan, who supplied the much needed smiles, hugs, and giggles at the end of intellectually trying days. To the incomparable American Studies faculty at Christopher Newport—one could not hope for better colleagues and friends. I owe a special thanks to Jonathan White for bringing this opportunity to my attention and for being a cherished friend. To my army of CAS Junior Fellows: You impress and inspire me daily, respect the life of the mind, and define the worth of academia. Thank you especially to Rachel Wagner, Hannah Jackson, Dagney Palmer, Lili Samios, Sarah Hopkins, and Alyssa Thobodeau for tirelessly reviewing and editing the many drafts of this work. Elizabeth Kaufer Busch In many ways, my contributions to this book represent the culmination of a quarter century of litigating, writing, and thinking about Title IX issues. Over the years, my views on Title IX have been influenced and informed by several outstanding lawyers: Bryan Beauman, the late Jeff Brandwine, Tony Dyl, Paul Farley, Kay Heidbreder, Bill Hurd, Judy Jagdmann, Jerry Kilgore, Peter Lake, Beverly Ledbetter, the late Rex Lee, Maureen Matsen, Steve McCullough, Bob McDonnell, Bill Mims, Jim Newberry, Gale Norton, Carter Phillips, Brian Snow, Tim Tymkovich, Margie Walton, and Mike Williams. I owe each of them an enormous debt. William E. Thro

Timeline

1961 December 14

President John F. Kennedy established the President’s Commission on the Status of Women. The Commission’s report stressed the importance of “education and training of girls and women.”

1963 February 25

Betty Friedan published The Feminine Mystique.

June 10

Congress passed the Equal Pay Act.

1964 July 2

President Lyndon B. Johnson signed the Civil Rights Act into law. The act contains Title VI, which served as the model for Title IX, and VII, which banned employment discrimination on the basis of sex. Educational institutions were initially exempted from Title VII.

1965 September 24

President Lyndon B. Johnson signed Executive Order 11246, the first of two executive orders requiring non-discrimination in employment decisions by federal contractors.

1967 October 13

President Lyndon B. Johnson signed Executive Order 11375, which banned federal contractors from discriminating on the basis of sex in hiring and employment. This order extended EO 11246 to include a ban of sex-based discrimination and was the basis for Bernice Sandler’s claim of sex discrimination at the University of Maryland.

1970 January 31

WEAL (with the assistance of Bernice Sandler) filed a class action complaint with the U.S. Department of Labor against the University of Maryland and all universities and colleges in the U.S. Executive Order 11246, as amended by President Johnson was the basis for the claim.

1970 July 1 and 31

The U.S. House of Representatives held its first hearings on sex discrimination in higher education.

1971 October 12

The U.S. House of Representatives passed the ERA and sent it to the Senate for approval. Representative Martha Griffiths’ work contributed to the success of these hearings.

1972 March 22

The U.S. Senate passed the Equal Rights Amendment, which would have banned discrimination on the basis of sex. The ERA was then sent to the states for ratification and ultimately fell short of the thirty-eight states needed.

xii

TIMELINE June 23

Congress passed Title IX of the Education Amendments of 1972. Edith Green (House of Representatives) and Birch Bayh (Senate) sponsored the law.

1974 July 1

Senator Javits proposed the “Javits Amendment,” which afforded schools some flexibility in determining how to create equal opportunities in sport for both sexes.

1975 May 27

President Ford signed the athletics regulations for Title IX and submitted them to Congress for review.

June 4

The Federal Register published Title IX’s Implementing guidelines. Congress had previously reviewed and released the regulations for comment from interested parties in 1974.

November 11

The OCR published a Memorandum on “Elimination of Sex Discrimination in Athletics Programs” in the Federal Register. These guidelines covered athletic scholarships, intercollegiate, club, and intramural programs.

1978 July 21

The deadline for educational institutions to comply with Title IX’s original implementing guidelines.

1979 March 22

Initial deadline for the ERA ratification was meant to be this day, though Congress later extended the date to June 30, 1982.

May 14

Cannon v. University of Chicago—SCOTUS found a private right of action under Title IX.

September 10

Catharine A. MacKinnon published Sexual Harassment of Working Women.

October 17

President Carter signed a law that established the Department of Education (ED) as its own Cabinet-level department. The Office for Civil Rights (OCR) within the ED replaced the Department of Health, Education, and Welfare (HEW) as the agency responsible for enforcing Title IX.

December 11

The Office for Civil Rights in the newly established Department of Education issued the “Title IX Policy Interpretation: Intercollegiate Athletics,” which included the Three-Part Test. HEW had previously issued the draft for notice and comment in 1978.

1980 September 22

Alexander v. Yale was the first case to argue that sexual harassment was a violation of Title IX’s sex discrimination ban. Though the plaintiffs lost their case in the Federal Second Circuit Court of Appeals, the argument set the precedent for fighting sexual harassment under Title IX.

1982 May 17

North Haven Board of Education v. Bell—SCOTUS decided that Title IX’s prohibition of sex discrimination in federally funded educational institutions protected teachers and employees from sex discrimination as well.

1984 February 28

Grove City College v. Bell—SCOTUS held that Title IX only applied to educational programs directly receiving federal funding. Thus, many athletics programs were exempt from Title IX enforcement.

TIMELINE 1988 March 22

The Civil Rights Restoration Act of 1987 became law. This act overturned Grove City

College v. Bell by applying Title IX to the entire operational functions within educational institutions when any school program or activity received any amount of federal funding. 1992 February 26

Franklin v. Gwinnett County Public Schools—SCOTUS ruled that Title IX violations permit plaintiffs to sue for monetary damages. The case involved the first sexual harassment claim by a student against a teacher under Title IX.

1993

In Roberts v. State Board of Agriculture, the U.S. Court of Appeals for the Tenth Circuit held that Colorado State University violated Title IX when it eliminated both men’s baseball and women’s softball. Although the University eliminated a greater number of athletics opportunities for males, the university’s athletics program did not meet the Three-Part Test. This was the first appellate decision on the merits in an athletics case. Later that year, the Supreme Court denied review of the decision.

1996 January 6

The OCR issued its “Clarification of Intercollegiate Athletics Policy Guidance: The ThreePart Test,” which affirmed their intent to use the Three-Part Test as the measure for athletics compliance. Norma Cantu instituded a polcy of active investigation and enforcement of this rule.

November 21

The First Circuit Court of Appeals in Cohen v. Brown University ruled that Brown University violated Title IX when it demoted the women’s gymnastics and volleyball teams to donor-funded sports. The ruling indicated the difficulty schools have in eliminated women’s teams if they fail to demonstrate substantive proportionality. SCOTUS declined to review the lower court’s decision.

1997 March 13 1998 June 22

The OCR issued the 1997 Sexual Harassment Guidance.

Gebser v. Lago Vista Independent School District—SCOTUS ruled that educational institutions would not be held liable in cases of teacher-to-student sexual harassment unless a responsible employee had direct knowledge of the harassment or abuse and failed to act. SCOTUS cited the OCR’s 1996 Sexual Harassment Guidance in its opinion.

1999 May 24

Davis v. Monroe County Board of Education—SCOTUS held that schools could be sued in cases of student-on-student sex harassment if a school employee knew and failed to correct the behavior. The case cited the OCR’s recently adopted guidelines for dealing with student-on-student harassment.

2001 January 19

The OCR issued the “Revised Sexual Harassment Guidance,” which affirmed the standards in 1997 Guidance and incorporated the SCOTUS rulings in Davis and Gebser.

2003 July 11

The OCR issued a “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance,” which enabled schools to use surveys as evidence of accommodating women’s and men’s interest and ability to play and thereby opened up the possibility of using part 3. The Obama administration rejected the relaxed options offered in the Bush years and reverted back to Cantú’s model.

2006 January 25

The OCR issued a Dear Colleague Letter reinforcing the 2001 Sexual Harassment Regulations.

xiii

xiv

TIMELINE 2007 January 31 2010 October 26

The OCR issued a Dear Colleague Letter on single-sex regulations. The OCR issued a Dear Colleague Letter on Bullying, which included ban on sexstereotyping.

2011 April 4

The OCR issued the 2011 Dear Colleague Letter on Sexual Violence without offering prior notice or time for comment from interested parties.

2014 April 29

The Office for Civil Rights issued the 2014 “Dear Colleague Letter Q & A on Title IX and Sexual Violence” to clarify the 2011 letter on sexual violence.

2015 January 7

The OCR issued a Letter on Transgender Bathroom Usage, later utilized in G.G. v.

Gloucester County School Board. February 12

The Bipartisan Task Force on Federal Regulation of Higher Education publishes its “Recalibrating Regulation for Colleges and Universities,” expressing concern with the frequency with which bureaucratic agencies such as the OCR issue new interpretations of existing law that create new rules and requirements.

2016 April 19

G.G. v. Gloucester County School Board—U.S. Court of Appeals for the Fourth Circuit, by a vote of 2–1, held that the OCR's letter interpreting "sex" as meaning an individual's "gender identity" is entitled to deference. Therefore, the Court of Appeals remanded the case to the district court.

May 13

The OCR issued a Dear Colleague Letter on Transgender Students. The letter cited the Gloucester Case as precedent for its reasoning and new interpretation. The OCR did not seek comment from interested parties before posting the letter.

June

The AAUP published “The History, Uses, and Abuses of Title IX” in response to growing concerns for free speech protections and due process rights of the accused in Title IX investigations.

October 28

Supreme Court of the United States granted review of the Fourth Circuit's decision giving deference to OCR's letter interpreting "sex" as meaning an individual's "gender identity."

2017 February 22 March 6

The Office for Civil Rights rescinded the 2016 Transgender Dear Colleague Letter. After the Trump administration withdrew the 2016 Transgender Dear Colleague Letter, the Supreme Court vacated the Fourth Circuit's decision giving deference to the OCR's letter interpreting "sex" as meaning an individual's “gender identity."

September 7

Secretary of Education Betsy DeVos announced plans to modify Title IX implementation in speech at George Mason University.

September 22

The Department of Education rescinded the 2011 Dear Colleague Letter on Sexual Violence and replaced the letter with an interim guidance on sexual harassment.

Abbreviations

Administrative Procedures Act Association for Intercollegiate Athletics for Women Cannon v. University of Chicago (1979) Davis v. Monroe Co. Board of Education (1999) Dear Colleague Letter Department of Education Department of Health, Education, and Welfare Equal Employment Opportunities Commission Equal Rights Amendment Executive Order Franklin v. Gwinnett County Public Schools (1992) Gebser v. Lago Vista Independent School District (1998) National Coalition for Women and Girls in Education National Collegiate Athletics Association National Organization for Women National Women’s Law Center Office for Civil Rights President’s Commission on the Status of Women Science, Technology, Engineering, and Mathematics U.S. Supreme Court Women’s Equity Action League

APA AIAW Cannon Davis DCL ED HEW EEOC ERA EO Franklin Gebser NCWGE NCAA NOW NWLC OCR PCSW STEM SCOTUS WEAL

CHAPTER 1

The Adoption of Title IX A Ban on Sex Discrimination in Education

O

n June 23, 1972, Richard Nixon signed Title IX into law as part of the Educational Amendments of 1972.1 Co-sponsored by Senator Birch Bayh and Congresswoman Patsy Mink, the law states: 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.2

Considered by themselves, these thirty-seven words seem neither revolutionary nor controversial in twenty-first-century America, and yet Title IX’s subsequent transformation would come to mark a number of critical moments in the history of women’s rights, infusing every aspect of education in the United States. Title IX’s passage produced immediate changes to the 1970s classroom, altering the opportunities of students and teachers across the country. Yet, the most monumental changes were to come. Since the critical moment of its passage, the Federal Executive Branch and the U.S. Supreme Court (SCOTUS) have expanded and transformed Title IX’s enforcement, scope, meaning, and goals. Students today can invoke Title IX not only to receive equal opportunities in admissions, activities, and programs, but also to attain equal numerical outcomes in athletics, receive protection against sexual harassment and assault by teachers or students, and recover monetary damages when a school fails to ensure any of these things. These changes have been enacted, not by Congress, the legislative body whose primary purpose is to create law, but by appointed officials in the agency responsible for enforcing Title IX— the U.S. Department of Education’s Office for Civil Rights (OCR).3

2

THE ADOPTION OF TITLE IX

Although the Supreme Court facilitated the statute’s transformation, the OCR’s informal guidance documents and Dear Colleague letters created substantive changes to Title IX, which have been embraced by supporters and shunned by critics. The minimal role of Congress in the transformation of Title IX provides a window into the process by which civil rights laws have been extended in the United States. This book chronicles five critical moments in Title IX’s development, each of which has played a significant role in transforming the meaning of sex equality and discrimination “on the basis of sex.” These moments include the law’s passage (Chapter 1), the establishment of a Three-Part Test for athletics (Chapter 2), the finding of jurisdiction and monetary liability for sexual harassment (Chapter 3), the requirement of campus judicial systems for adjudicating allegations of sexual assault (Chapter 4), and the attempted ban against gender identity discrimination (Chapter 5). Throughout the book we use the terms “transformation” and “expansion” to describe the evolution of Title IX’s meaning and jurisdiction. An “expansion,” refers to a legitimate change to the statute enacted by congressional authority to amend the law or by the federal courts adopting a construction consistent with Title IX’s original public meaning. There have been two key expansions—one initiated by Congress and one by the Supreme Court. Congress significantly altered Title IX when it passed the Civil Rights Restoration Act in 1987, which extended the jurisdiction of Title IX to the entire operation of a school receiving federal funding in any area. Previously, Title IX had only applied to programs that directly received federal funding.4 The Supreme Court led the second expansion after the concept of “sexual harassment” entered the legal lexicon.5 In two separate cases—Franklin v. Gwinnett County Public Schools and Gebser v. Lago Vista Independent School District—the Court expanded Title IX jurisdiction to cover known acts of sexual harassment by a teacher on a student.6 The term “transformation” signifies a change in policy beyond the original public meaning of Title IX’s text, which may alter the content of the law, such as requiring a novel notion of non-discrimination, or create a new requirement not evident in the statutory language, such as requiring colleges to institute internal justice systems for trying sexual assaults. The emphasis throughout the book is on the creation and impact of key transformations to Title IX, which have altered a 37-word law into hundreds of legal requirements.7 The transformations impose specific policy preferences that typically aim to expand the protections for women. The transformations described throughout the book tend to be more controversial than expansions because they are enacted by unelected bureaucrats in the Office for Civil Rights or appointed justices on the

THE ADOPTION OF TITLE IX

Supreme Court, rather than elected lawmakers in Congress. Each chapter of the book highlights one of these transformations. The remainder of this chapter outlines the steps in Title IX’s passage, the individuals who enacted the legislation, the law’s statutory meaning, and the ways in which Title IX is enforced.

BEFORE TITLE IX The struggle to end sex discrimination in education emerged alongside the civil rights movement against racial discrimination in the 1950s and 1960s, which culminated with the passage of the Civil Rights Act of 1964. A century prior, the FourTHE FOURTEENTH teenth Amendment was passed AMENDMENT’S EQUAL during the Civil War ReconPROTECTION CLAUSE struction period in order to assist in integrating African Americans The Fourteenth Amendment, ratified in and freed slaves into mainstream 1868, mandates States provide “equal America with the privileges and protection of the laws” to all persons protections guaranteed to all citi(not just citizens) within its borders. This zens. The amendment guaranteed Equal Protection Clause is particularly “to any person within its jurisrelevant to Title IX. While a literal reading diction the equal protection of of the text would suggest that the laws” and guaranteed to all government might never discriminate, the citizens certain “privileges and reality is that government discriminates all immunities,” which include “due the time. Poor people pay less tax than process of law.” Though early rich people do. Students with low grades women’s rights advocates such as and test scores are denied admission to Myra Bradwell attempted to use state universities. The Supreme Court the Fourteenth Amendment as a generally allows governmental guarantor of equal opportunities discrimination except where the basis for for women, the Supreme Court the discrimination is an immutable initially refused to recognize a characteristic such as race, sex, national prohibition on sex discrimination.8 origin, and the marital status of one’s Not until four years after the pasparents. When the government employs sage of Title IX, did the Supreme those classifications, the Court employs Court in Craig v. Boren (1976) heightened scrutiny and usually interpret the Equal Protection invalidates the government’s Clause as a prohibition on governclassification. 9 mental sex-based distinctions.

3

4

THE ADOPTION OF TITLE IX

The initial failures to utilize the Fourteenth Amendment to expand women’s rights led activists to attempt other methods. One strategy was to lobby Congress to pass targeted employment or education laws geared towards ensuring equal opportunities for women. These laws tended to be narrow and were modeled after the Civil Rights Act of 1964, which utilized the federal regulatory system to incentivize compliance.10 The second and more comprehensive approach was to propose an Equal Rights Amendment (ERA) to the U.S. Constitution. Both strategies carried promise, but the ultimate failure of the ERA led activists to focus their energies on laws such as Title IX to expand women’s rights. 1961 marked the first year in which educational equity for girls and women was brought into the public eye. This was the year that President Kennedy established the President’s Commission on the Status of Women (PCSW) and tasked it with recommending ways to overcome “discrimination in government and private employment on the basis of sex.”11 He appointed former First Lady Eleanor Roosevelt to chair the commission. Its 1963 report entitled “American Women” recommended a number of steps that would need to be taken to eliminate the discrimination against women in education, federal agencies, and in the workplace.12 The report turned the nation’s “highest priority” to the “education and training of girls and women,” without which the equal employment opportunities for women would not be possible.13 The next few years failed to bring advancements for women in education, but incremental advances were made in the area of employment. Congress passed the Equal Pay Act in 1963, which required males and females to be paid equally for equal work, and Title VII of the Civil Rights Act of 1964, which banned sex discrimination in employment.14 Yet as originally implemented, Title VII did not have the effect that some feminists had hoped. The Equal Employment Opportunities Commission (EEOC) was created in 1965 to help enforce Title VII, but was stalled due to considerable disagreement on the commission regarding “how vigorously this prohibition should be enforced, and what kinds of employment practices it should reach.”15 For example, the EEOC initially ruled that sex segregated job ads were not inherently discriminatory, and were therefore permitted. Women’s rights activists such as Pauli Murray and Betty Friedan, dissatisfied with the EEOC’s narrow interpretation of sex discrimination in employment, founded the National Organization for Women (NOW) to provide a broad critique of “the way in which the agency charged with enforcing Title VII had decided to interpret its prohibition of sex discrimination.”16 These activists quickly realized that passing a law was only one step in the struggle to end sex discrimination, for the laws also must be interpreted properly and then adequately enforced.

THE ADOPTION OF TITLE IX

Now began an active lobbying effort for broader interpretations and enforcement of Title VII to include affirmative action for women, that is, proactive measures to ensure the employment and non-discrimination of women in the workplace. After Kennedy’s assassination, President Lyndon B. Johnson augmented Title VII—without additional congressional action—by issuing Executive Orders 11246 (1965) and 11375 (1967). Together these orders entailed two broad expansions of Title VII’s prohibition against “discrimination on account of sex.”17 First, they expanded the law’s jurisdiction beyond federal agencies to include federal contractors who worked with the U.S. government. Second, the orders added required “affirmative action” measures “to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.”18 These executive orders went beyond non-discrimination understood as equal opportunity in pay or employment. Any contractor receiving federal funding would now be required to provide affirmative protections and preemptive procedures to ensure the absence of workplace discrimination on the basis of sex. President Nixon augmented these orders in 1969 by issuing an executive order requiring “affirmative program in each executive department and agency” to bring about equal employment opportunities for women.19 Unfortunately, education was exempted from these laws, and as the 1960s rolled on equality in education was still not legally addressed.20 Title VII of the Civil Rights Act, which banned workplace discrimination based upon sex, explicitly excluded “an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.”21 The 1960s classroom routinely segregated the sexes based upon subject—young women were excluded from industrial arts and auto mechanics classes, while young men were denied access to home economics, secretarial training, and nursing. At universities, “many departments had no women at all, even though women often obtained as many as 25 percent of the doctorates in those fields. . . . At the administrative ranks, women were a rarity.”22 Even women’s colleges tended to be led by men. In athletics, women were told they could cheer from the sidelines or perhaps play a half court version of basketball that was not too strenuous. In post-graduate studies, future Supreme Court Justice Ruth Bader Ginsberg and other women were asked to justify their presence at schools such as Harvard Law, when a man could have occupied their classroom spot.23 And, at the University of Maryland, Ph.D. candidates such as future Title IX advocate Bernice Sandler, were dissuaded from applying for tenure-track faculty positions if they were too aggressive or came on “too strong for a woman.”24

5

6

THE ADOPTION OF TITLE IX

Table 1.1 Notable Protections of Women Prior to Title IX

Protection

What it Did for Women

What it Failed to Do

14th Amendment

• Mandates equal protection • Did not apply to women under the law until after Craig v. Boren (1976)

1961 President’s Commission on the Status of Women (PCSW)

• Government funds research to demonstrate existing discrimination against women • Highlights the education of women and girls as a priority

• No power to enact legislation

Equal Pay Act (1963)

• Bans wage discrimination on the basis of sex

• Did not address sexbased discrimination in education

Title VI

• Model for Title IX’s text • Provides legal precedent for Title IX

• Did not recognize a private right of action • Did not ban sex discrimination

Title VII

• Bans workplace discrimination based on sex • Permits private lawsuits as well as EEOC enforcement

• EEOC did not adequately enforce the ban • Failed to promulgate a consensus on the meaning of sex discrimination

Executive Order 11246 (1965)

• Requires government contractors (receiving federal money) to employ non-discriminatory employment practices • Requires affirmative action measures in cases of underrepresentation

• Did not cover nongovernment contractors • Did not protect women from discrimination on the basis of sex

Executive Order 11375 (1967)

• Extends EO 11246 to include a ban of sexbased discrimination

• Did not cover nongovernment contractors

THE ADOPTION OF TITLE IX

THE MOVEMENT TO END THE DISCRIMINATION OF WOMEN IN EDUCATION Between the years of 1970 and 1972, two notable pieces of legislation were making their way through the House and the Senate—the reauthorization of the Higher Education Act of 1965 and the Equal Rights Amendment—both of which sought to extend women’s rights in education. Women’s rights advocates first aimed high for a comprehensive extension of women’s rights through an amendment to the U.S. Constitution.

A Constitutional Amendment Representative Martha Griffiths spent two years attempting to get the full House to approve the Equal Rights Amendment. After failing to get both houses to pass the ERA in 1970, ultimately, the House passed the ERA on October 12, 1971, while the Senate approved an identical version on March 22, 1972 with massive support. On the Senate side, Senator Birch Bayh had been a well-known advocate for women’s rights. He had authored and sponsored the Senate version of the Equal Rights Amendment. Next, the amendment was sent to the states with a seven-year deadline for ratification. Despite the promising momentum during the early days of the ERA, as 1977 approached, the vote was still short of passage by the states.25 Congress passed a bill to extend the deadline to 1982, however by then the amendment “lay dead” having secured only thirty-five of the required thirty-eight states needed for ratification.26 The failure to pass the ERA is a main reason why Title IX has come to signify the women’s rights movement in the U.S. Activists made a conscious decision in the early 1980s to “use existing laws to extend the frontiers of sexual equality.”27 Women’s rights organizations hoped “to mold Title IX into a far-reaching remedial tool” and encourage the courts to stretch “the legal reach of Title IX.”28 They turned away from the precarious and uncertain amendment process to put energy into actions that yielded more rapid results. But first, Title IX had to be passed.

Amend Existing Education Law While the ERA was being debated and amended by both houses of Congress, Ph.D. candidate Bernice Sandler was disheartened by her rejection from the University of Maryland.29 After conducting considerable research, Sandler learned that a law already existed ( Johnson’s Executive

7

8

THE ADOPTION OF TITLE IX

How to Pass an Amendment to the Constitution There are two ways to amend the U.S. Constitution. •

•

First, the amendment must be passed by 2⁄3 majority in both houses of Congress. If the House and Senate versions differ, they resolve those differences and propose the amendment as a joint resolution to the states for ratification. If the amendment is ratified by 3⁄4 of the states (38 out of 50) then it becomes part of the constitution. Second, a constitutional convention can be called for by 2⁄3 of state legislatures. Once they have drafted and agreed to the text of the amendment, it must be ratified by 3⁄4 of the states (38 out of 50).

The first method is the only one that has been used. In the case of the Equal Rights Amendment, the law passed both houses in 1972, but fell three states short of ratification by its deadline in 1982.

Order 11246) that banned workplace discrimination based on sex. The law, however, was not being actively enforced. Sandler decided to take action. She worked with the Women’s Equity Action League (WEAL) to sue the University of Maryland for rejecting her because she was a woman. They also filed a class action complaint with the U.S. Department of Labor against the University of Maryland and all universities and colleges in the country that routinely rejected women in favor of men. The complaint asked for the government to review the policies of all colleges and universities who received federal contracts to determine if they were discriminating against women and therefore in violation of the law. In Congress, Representatives Edith Green (Tennessee) and Martha Griffiths (Michigan), both of whom also served on WEAL’s national advisory board, were instrumental in bringing about the first hearings on sex discrimination in education to Congress. Representative Green, who chaired the Subcommittee on Education and Labor, had been aware of the pervasive sex discrimination in education.30 Green strategized with Bernice Sandler regarding how to pass Title IX in the House. Representative Griffiths, who also served on WEAL’s national advisory board, assisted out of her concern that the federal government had failed to enforce its own regulations on sex discrimination.31 Representative Green presided over the 1970 hearings as chair of the Subcommittee on Higher

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Education and Labor, in which a wide range of women explained the discrimination they faced in postsecondary education.32 After the congressional hearings, Senator Birch Bayh authored Title IX of the Higher Education Act and, with the assistance of Senator George McGovern, ushered the bill through the Senate.33 Bayh modeled Title IX’s language on Title VI of the 1964 Civil Rights Act, whose language is identical, except that Title IX replaces Title VI’s prohibition

How Are Title IX, Title VI, and the Fourteenth Amendment Related? Senator Birch Bayh modeled Title IX after Title VI, leading the two statutes to have virtually identical texts. The Supreme Court has affirmed Title VI and Title IX are to be interpreted in the same manner. Title VI of the Civil Rights Act of 1964: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Title IX of the 1972 Education Amendments: 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 The Fourteenth Amendment to the U.S. Constitution bans the federal government and states from depriving “any person within its jurisdiction the equal protection of the laws.” Because the Supreme Court has ruled that Title VI is coextensive with the Equal Protection Clause of the Fourteenth Amendment, Title IX must also be coextensive with the Equal Protection Clause. In other words, any Title IX claim is also a constitutional claim for violation of the Equal Protection Clause of the U.S. Constitution. With respect to the rights of women to be free from discrimination in education, Title IX and the Equal Protection Clause say the same thing. However, the Fourteenth Amendment is a limited protection of women because it only applies to state and federal government. Further, it did not apply to women until 1976. Title IX applies to all educational institutions that receive federal funding.

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against discrimination “on the basis of race, color, or national origin” with discrimination “on the basis of sex.” While Title VI exempted educational institutions, Title IX explicitly covers all educational institutions receiving federal funds. Title IX was officially proposed on February 28, 1972, but with minimal lobbying efforts in order to avoid drawing negative attention to it from its would-be opponents. Title IX’s passage as part of the Educational Amendments Act on June 23, 1972 “was hardly noticed” by the public.34 While the ERA would continue its attempted path towards ratification, the Department of Health, Education, and Welfare began drafting the procedures by which Title IX would be implemented and enforced.

THE STATUTORY LANGUAGE OF TITLE IX Now that the law had passed, the Department of Health, Education and Welfare (HEW) had to explain what it meant in practice. HEW released its draft guidelines for comment in June of 1974, which led to nearly ten thousand comments before ratification of the final guidelines.35 Questions arose regarding the ways in which Title IX would impact athletics, the meaning of “programs and activities,” as well as the way in which equality would be measured. After being drafted, debated, and approved by Congress, Title IX’s 1975 implementing guidelines removed the absolute boundaries to women in courses, admissions, and competitive athletics, but permitted exceptions due to privacy needs and inherent physical differences.36

On the Basis of Sex Title IX’s ban against discrimination “on the basis of sex” is predicated on a specific understanding of “sex.” Today, it is not unusual for individuals to conflate the terms “sex” and “gender” because government officials and advocates alike use the terms interchangeably, but such was not the case during the period of Title IX’s adoption. As defined by the World Health Organization, the term “sex” refers to whether one is “born either male or female,”37 that is, the “biological and physiological characteristics” that define males and females, typically focusing on the distinct reproductive functions or biological structures of two distinct categories, males and females.38 In contrast, the term “gender” refers to “the socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women.”39 The term “gender” includes the stereotypes and

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social meanings that society attaches to being a male, or female, or other. SEX VS. GENDER Sex is a fixed and unchanging universal concept, whereas “gender” is Sex refers to the biological differences a fluid concept based upon ideas that and reproduction function of males and change over time and vary among females. Gender refers to the socially differing cultures. constructed meanings, or stereotypes, Title IX bans sex discriminasociety attaches to each sex. A ban tion based upon the notion that an against sex discrimination would require individual’s immutable characteristic the elimination of discrimination on the (race, color, sex, or national origin) basis of an individual’s biological traits. should not preclude that individual’s A ban against gender discrimination opportunities. The term “gender” would require equalizing the attitudes was not commonplace, nor did it and beliefs that members in society make its way into the congressional have about sex. debates or in the statutory language adopted by Title IX, while the term “sex,” understood as an individual’s biology at birth, was mentioned almost twelve hundred times throughout the Congressional testimony and supporting documents.40 As the statute is written, the ban against sex discrimination means that no educational institution may treat one individual differently from another individual due to their biological sex. Some advocates seek to expand the meaning of “sex” to facilitate Title IX to protect transgender students. Toward this end, Catherine E. Lhamon, Assistant Secretary for Civil Rights, and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, attempted to institute a new definition of the term “sex” in a 2016 Dear Colleague Letter that aimed to transform Title IX into a ban against gender-identity discrimination. Though the letter was rescinded and is thus null and void, it has aroused controversy over the meaning of the terms that comprise Title IX.41

Equality of Opportunity Title IX aims to establish equal opportunities for males and females in education. The original public meaning of Title IX was negative in nature, in that it banned “intentional,” “purposeful,” or “invidious” discrimination against males and females.42 The statute seeks to eliminate “preferential or disparate treatment to the members of one sex” in admissions, financial aid, academic class, extra-curricular programming, or other activities.43 Preferential treatment on the basis of sex would violate the statute’s purpose to ban discrimination on the basis of sex.

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The language utilized in the congressional hearings, the statute itself, and the original 1975 regulations are based on “equal treatment theory,” which is also termed “equity feminism”44 or “liberal feminism.”45 Equal treatment theory promotes the identical treatment of the sexes, and often stresses the similarities between males and females, in an effort to eliminate both discriminatory restrictions and special protections for males and females. For example, Title IX’s statutory language describes sex discrimination in admissions as “treat[ing] one individual differently from another on the basis of sex.”46 Identical treatment of males and females or non-discriminatory procedural practices would theoretically be sufficient to uphold the statute. Equal treatment theorists intend to establish procedural equality, or the equality of opportunity for males and females, understood as non-discriminatory practices and procedures. Title IX does permit that a school “may take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex,” but does not require affirmative actions.47 As we will see, Norma Cantu’s athletics policy transforms this notion of equal opportunity into end-result equality. According to the OCR’s recommended athletics policies, which have been supported by the courts, the elimination of intentional discrimination in athletics is not adequate to comply with Title IX. With respect to athletics, the OCR examines the “results of the action taken, rather than the underlying intent,” that is, the number of participants who are female in comparison to the number who are male.48

Title IX Jurisdiction Title IX applies to “any education program or activity receiving federal financial assistance.” The meaning of federally funded “program or activity” has been a source of dispute. The Supreme Court held that, as written in 1972, Title IX’s protections extended only to a specific program or activity that directly received federal funding.49 Since few intercollegiate or interscholastic sports programs actually received federal funds, Title IX’s application to sports was questionable. Moreover, there were large gaps in Title IX’s coverage because many smaller institutions only received federal funds toward student financial aid. This narrow reading was changed by Congress. Determined to overrule the Supreme Court’s interpretation, Congress passed—over the veto of President Reagan—the Civil Rights Restoration Act of 1987,50 which altered the definition of “program or activity” to include “all the operations” of an educational institution receiving federal funding.51 As a result, Title IX’s scope today encompasses the general operations of

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educational institutions that receive federal funding. This includes, but is not limited to, “traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities.”52 Any public or private institution that provides any form of education, and that receives any amount of federal funding in any program, is bound by Title IX’s provisions.

Exemptions and Limitations Title IX’s text includes several caveats, or exceptions, to the law.53 First, single sex institutions, religious institutions, single-sex social fraternities or sororities, single-sex boys’ or girls’ clubs, and mother–daughter or father– son activities were permitted. Institutions could also employ “separate toilet, locker room, and shower facilities on the basis of sex,” “separate living facilities for the different sexes,” as well as “separate athletic teams for members of each sex,” as long as “such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.”54 The implicit assumption underlying these exceptions is that distinctions based upon sex and distinctions based upon race, ethnicity, or country of origin are not identical in their consequences.

Table 1.2 Sex Segregation Permitted by Title IX

Sex Segregation Permitted by Title IX

Reason

Residence Halls/Dormitories Locker Rooms Bathrooms

• Privacy Rights

Athletics Teams

• Recognizes biological differences between the sexes

Single Sex Classes

• Physical education classes segregated due to biological differences • Sexual education and health classes due to privacy concerns

Social Fraternities and Sororities

• 501(c)(3) tax exempt status required

Single Sex Boys or Girls Clubs

• Voluntary and traditionally sex segregated

Single Sex Schools

• Must have a demonstrated traditional and continuous admission of a single sex

Single Sex Military Academies

• Requires sufficient justification for the segregation or it can be forced to admit both sexes into the curriculum as demonstrated by United States v. Virginia (1996)

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Sex segregation is permitted under Title IX for two reasons: (1) due to biological differences between the two sexes and (2) due to the privacy rights of males and females.55 First, separate athletic teams are permitted because the respective biological differences between males and females in physical strength, bone density, and vulnerability to injury have consequences, whereas differences in skin pigmentation could justify no such separation. Second, separate but equal accommodations for males and females may be justifiable on the basis of the privacy rights, while such accommodations in the case of race, color, or national origin would violate the Equal Protection Clause. Separate facilities for the races are understood to be inherently unequal because they cultivated feelings of inferiority in the segregated race, while Title IX permits analogous distinctions on the basis of sex. As argued by Ruth Bader Ginsberg, equality between the sexes does not necessitate the elimination of sex segregation.56 She argues that privacy rights must also be protected. For this reason, Title IX does not require that the sexes use the same restrooms, dressing rooms, residence halls, or living facilities, and permits separate fraternities, sororities, and boys’ and girls’ organizations.57

HOW IS TITLE IX ENFORCED? Congress is the deliberative body whose primary responsibility is to debate, determine the meaning of, and pass laws. The Executive Branch is tasked with enforcing them through its bureaucratic agencies. Congress delegated enforcement responsibility for Title IX to the Department of Health, Education, and Welfare (HEW) and later to the Office for Civil Rights (OCR), whose mission is to “ensure equal access to education through vigorous enforcement of civil rights.”58 The OCR ensures Title IX compliance by institutions of learning by conducting investigations when they receive complaints, making recommendations through publishing formal or informal guidance, and by threatening the removal of federal funding in cases on noncompliance. Typically, when a complaint is made, the OCR conducts an investigation, and, if found to be in violation, the OCR will recommend steps to be taken by the institution.

Formal Regulations The OCR can encourage a particular understanding of compliance through the publication of formal regulations published in the Federal Register or through the issuance of informal guidance.59 These guidelines must

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conform to the public meaning of Title IX’s text.60 The OCR has promulgated formal regulations on three occasions: once, in 1975, when it issued the first set of regulations implementing the statute, and on two other occasions, in 2000 and 2006.61 Since 2006, the OCR has relied solely on Dear Colleague letters, some of which contain controversial and transformative interpretations of the statute.62 Unless such recommendations are formally approved by Congress, as were the initial 1975 regulations, or affirmed by the Supreme Court, they do not carry the full force of the law. Instead, they are generally regarded as good advice for any school that does not wish to be investigated.

Individual Enforcement through the Courts Individual students can also enforce Title IX by suing an educational institution if he or she is being discriminated against because of sex.63 The Supreme Court has transformed Title IX by permitting private parties to enforce Title IX, imposing liability for monetary damages, and recognizing liability for deliTHE ADMINISTRATIVE berate indifference to teacherPROCEDURES ACT (APA) student and peer-on-peer sexual harassment.64 The purpose of the The OCR’s authority for issuing federal court system is to protect recommendations outside of compliance the civil rights of individuals investigations is limited by the 1946 against violations by state and Administrative Procedure Act (APA), which federal governments and to was passed to prevent the encroachment ensure that federal regulations are of a “fourth branch” of government as well consistent with the Constitution as the “unconstitutional usurpation of and with the public meaning of power” by the executive department. The the laws they intend to enforce. APA provides guidance on the means by Some civil rights advocates and which laws are to be enforced when judicial activists believe that the the U.S. Constitution is silent. The Supreme Court should also use OCR’s interpretation of Title IX must be its power to extend the civil consistent with the public meaning of rights of marginalized groups the law’s text. The APA does not grant when the laws fail to do so. Dear Colleague letters or sub-regulatory

Rule of Law Potentially the most powerful enforcement mechanism in the United States is the rule of law,

guidance the force of law, but educational institutions have tremendous incentives to follow the directives of the OCR, owing to the OCR’s ability to investigate and remove federal funding.

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or the language of the law itself. The foundation of a constitutional republic is the belief that the Constitution limits the power of the government by prohibiting certain actions and requiring certain others. The language of a statute can serve as an interpretive guide, providing a stable foundation for future interpretation, precedent, and enforcement. The clear meaning of the words comprising a law at the time it was adopted tells the public exactly what rules the lawmakers were creating. Laws have no meaning without the carefully selected language chosen to comprise their scope. Since there are 535 federal lawmakers (100 Senators and 435 Members of Congress) whose hands potentially shape the meaning of any individual law today, it can be misleading to speak of a law’s “intent.” What matters is the original public meaning of the text enacted by the legislature.65 One can glean some insights into the law’s original public meaning from the congressional testimony and the narratives of the participants who helped to shape the law, but those pronouncements are not more significant than other contemporary interpretations. This book traces the development of Title IX’s evolution, rather than its “unintended consequences,” in order to account for the many stakeholders and opinions that have had a hand in propelling the development of Title IX.

ORGANIZATION OF THE BOOK As a critical moment in American history, the direct consequences of Title IX’s passage ended the general practice of single sex classes such as home economics and shop and opened the nation’s colleges and universities to women. But these changes represent only a portion of the statute’s continued significance for civil rights in American history. Indeed, we identify at least four critical moments, or stages, in Title IX’s evolution beyond its passage. The four chapters that follow analyze each of these developments in turn. Our second chapter explores the most studied aspect of Title IX: its impact on athletics. By issuing a guidance document mandating a “three part” test, the OCR altered Title IX’s understanding of equality of opportunity to signify numerical parity and affirmative action for women. The OCR’s new standard implementation of Title IX in the case of athletics is understood by many to provide unprecedented opportunities for women in sports, but it has also raised difficult questions regarding the structure of collegiate athletics as a whole. We consider the monumental impact of this change, which was achieved without any official codification in the law. At the heart of this chapter is a discussion of whether equality

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of opportunity for women can yield the equal results desired by women’s rights advocates. Chapter 3 lays out the Supreme Court’s adoption of an expanded notion of sex discrimination, which paves the way for two additional transformations of Title IX—the discovery of a newly defined right and the creation of an additional form of actionable sex harassment. The first transformation we explore is the Supreme Court’s recognition of students’ private right to sue institutions for large sums of money in cases of Title IX violations.66 Next, the Supreme Court expands the meaning of sex discrimination under Title IX by adopting Catharine Mackinnon’s theory of sexual harassment, and uses that theory to impose liability when an institution responds with deliberate indifference to known acts of sex discrimination by employees.67 In this same period, Norma Cantu’s Office for Civil Rights transforms school liability under Title IX to include peeron-peer sexual harassment. These developments force educational institutions to be far more attentive to their obligations. The fourth chapter explores the implications of Assistant Secretary for Civil Rights Russlynn Ali’s 2011 Dear Colleague Letter, which creates new Title IX policy without congressional or public oversight. By the standards outlined in the letter, Title IX becomes a law requiring a parallel justice system to deal with allegations of sexual assault among members of the university’s community. Public college administrators face unique challenges in devising the most appropriate way to secure the rights of sexual assault survivors in the manner mandated by the OCR, protect the due process rights of the accused as mandated by the Fourteenth Amendment and by Title IX, and shield their universities from private lawsuits by both sexual assault survivors and the accused perpetrators. The concluding chapter discusses the attempt by Catherine E. Lhamon and Vanita Gupta to transform Title IX into a ban against gender-identity discrimination by issuing a 2016 Transgender Guidance without congressional oversight or public input.68 The letter offers a new meaning of the term “sex” in order to facilitate this significant alteration of the law. Though never enacted, the letter’s attempt to create new law under Title IX is consistent with steps taken by the Office for Civil Rights in issuing its 2011 Dear Colleague Letter, the 1997 Sexual Harassment Guidance, and the 1979 athletics policy. This concluding chapter takes a final look at the process that has been used to transform Title IX from the perspective of the U.S. constitutional republic. Does the transformation of Title IX provide activists with a strategy for securing women’s rights in perpetuity, or might it be a cautionary tale of the fragility of these rights? The book weaves together significant legal developments, feminist theories, and conflicting views of the meaning of equality together into a

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story of Title IX’s transformational impact on American society. Overall, we will see that advocates from the left, right, and center find something to love and something to hate in the current applications of the law. The story we tell diverges from previous accounts by combining the law’s legal, social, and political history; by clarifying how distinct visions of sex, gender, and equality have shaped the current meaning of the law; and by unveiling the surprising story told by the non-legislative measures that ultimately transformed the law over more than four decades. We hope that Title IX’s story will inspire a renewed awareness by women and men of the fragility of their civil rights as well as the political, social, and cultural controversies associated with the attempt to bring about equality of the sexes.

NOTES 1 2 3 4 5 6 7 8 9 10 11 12 13 14

15 16 17

These amendments are also known as the Higher Education Amendments of 1972. Public Law No. 92–318, 86 Stat. 235 ( June 23, 1972), codified at 20 U.S.C. §§ 1681–1688. Before the creation of the Department of Education, the Department of Health, Education, and Welfare was responsible for enforcing Title IX. Grove City College v. Bell, 465 U.S. 555 (1984). Franklin v. Gwinnett School District, 503 U.S. 60 (1992); Gebser v. Lago Vista, 524 U.S. 274 (1998). Ibid. Department of Justice, Title IX Legal Manual, January 11, 2001, www.justice.gov/ sites/default/files/crt/legacy/2010/12/14/ixlegal.pdf. Bradwell v. State of Illinois, 83 U.S. 130 (1873). Craig v. Boren, 429 U.S. 190 (1976). Welch Suggs, A Place on the Team (Princeton, NJ: Princeton University Press, 2005), 37. Executive Order 10980 Establishing the President’s Commission on the Status of Women, Federal Register 26, No. 12059 (December 14, 1961). U.S. Department of Labor, “American Women,” A Report by the President’s Commission on the Status of Women, October 11, 1963. Ibid., iv, 7. Public Law. 88–352, U.S. Statues at Large 78 ( July 2, 1964): 252. For a detailed account of the passage of the 1964 Civil Rights act, see Charles Whalen & Barbara Whalen, The Longest Debate: The Legislative History of the 1964 Civil Rights Act (Washington D.C.: Seven Locks Press, 1985). Cary Franklin, “Inventing the Traditional Concept of ‘Sex Discrimination,” Harvard Law Review 125, no. 6 (April 2012): 6. Ibid., 33. Executive Order 11246, Equal Employment Opportunity, 30 Fed. Reg. 12319, 12935, also at Code of Federal Regulations, title 3 (1964–1965): 339.

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18

19 20 21

22 23 24 25

26

27

28 29 30

31 32 33 34 35 36 37 38 39 40

41 42

Sec. 202 amended by Executive Order No. 11375, Amending Executive Order No. 11246, Relating to Equal Employment Opportunity, 32 Fed. Reg. 14303 (Oct. 13, 1967), also at Code of Federal Regulations, title 3 (1966–1970): 684. Executive Order. No. 11478, Equal employment opportunity in the Federal Government, 34 Fed. Reg. 12985 (August 8, 1969). Public Law 88–352, 78 Stat. ( July 2, 1964): 241–268. See also Higher Education Act of 1965, Public Law. 89–329, Section 804(a). Public Law 88–352, 78 Stat. ( July 2, 1964): 255. See Bernice R. Sandler, “Too Strong for a Woman”—The Five Words That Created Title IX,” Equity and Excellence in Education 33 (2000): 9–13. Sandler, “Too Strong.” Philip Galanes, “Ruth Bader Ginsburg and Gloria Steinem on the Unending Fight for Women’s Rights,” The New York Times, November 14, 2015. Sandler, “Too Strong.” Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager, “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States,” William and Mary Journal of Women and the Law 3, no. 1 (1997): 116. Donald T. Critchlow and Cynthia L. Stacheki, “The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy,” The Journal of Policy History 20, no. 1 (2008): 157. David Margolick, “Women Turn to Courts to Gain Rights,” New York Times, June 29, 1982, www.nytimes.com/1982/06/29/us/women-turn-to-courts-to-gainrights.html. Ibid. The account that follows is based on Sandler’s narrative of her own experience as described in “Too Strong for a Woman.” “Green, Edith Starrett,” History, Art, and Archives of the United States House of Representatives, http://history.house.gov/People/Detail/14080; Sandler, “Too Strong.” Sandler, “Too Strong.” “Green, Edith Starrett,” History, Art, and Archives. Iram Valentin, “Title IX: A Brief History,” Equity Resource Center, Aug. 1997, 4. Sandler, “Too Strong.” 40 Fed. Reg. 108 ( June 4, 1975): 24128–24145. Ibid. World Health Organization (WHO), “Gender, women and health: What do we mean by ‘sex’ and ‘gender’?” www.legal-tools.org/doc/a33dc3/pdf/. G.G. ex rel. Grimm v. Gloucester City. School. Board, No. 15–2056, 2016 WL 1567467, at *21 (4th Cir. Apr. 19, 2016) WHO, “Gender, women and health.” U.S. Congress, House, Discrimination Against Women: Hearings before the Committee on Education and Labor Special Subcommittee on Education, 91st Cong., 2nd sess. July 1 and 31, 1970. The congressional testimony supporting documents included the word “gender” only three times, but none of the testimony did. See pp. 1073, 1074, 1218. Chapter 5 explores this attempt at length. Title IX Legal Manual.

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43 44 45 46 47 48 49 50 51 52 53 54 55

56 57 58 59 60 61 62

63 64

65 66

67 68

20 U.S.C. § 1681 et seq. (2007 Ed.). Christina Hoff Sommers, Who Stole Feminism. (New York: Touchstone, 1995). Robert Verchick, Nancy Levit, and Martha Minow. Feminist Legal Theory: A Primer (New York: NYU Press, 2006), 17. 40 Fed. Reg. 108 ( June 4, 1975): 24142–24143. Ibid., 24138, emphasis added. Title IX Legal Manual. Grove City College v. Bell, 465 U.S. 555 (1984). Civil Rights Restoration Act of 1987, Public Law 100–259, Statutes at Large 102 (March 22, 1988): 28–32. 20 U.S.C. § 1687. S. Rep. No. 64 at 17, reprinted in 1988 U.S.C.C.A.N. at 19. 20 U.S.C. §§ 1681–1688. 40 Fed. Reg. 108 ( June 4, 1975): 24142–24143. Though there is dispute today regarding whether only two sexes—male and female—exist, at the time of Title IX’s adoption, science had established, and the law was predicated on the notion, that there are two sexes designated by either an XX chromosome or an XY chromosome. Ruth Bader Ginsberg, “The Fear of the Equal Rights Amendment,” Washington Post, April 7, 1975. 40 Fed. Reg. 108 ( June 4, 1975): 24142–24143. U.S. Department of Education, “Office for Civil Rights,” www2.ed.gov/about/ offices/list/ocr/index.html. This authority to interpret Title IX authority has also been “specifically affirmed” by the Supreme Court in Gebser, 524 U.S. at 292. 5 U.S.C. § 552, 25. 40 Fed. Reg. 108 ( June 4, 1975); 65 Fed. Reg. 169 (August 30, 2000); 71 Fed. Reg. 206 (October 25, 2006). Task Force on Federal Regulation of Higher Education, “Recalibrating Regulation for Colleges and Universities: Report of the Task Force on Federal Regulation of Higher Education” (2013): 36. See Cannon v. University of Chicago, 441 U.S. 677 (1979). Ibid., North Haven Board of Ed v. Bell, 456 U.S. 512 (1982), Grove City College v. Bell (1984), Franklin, 503 U.S. 60 (1991), Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Oncale v. Sundowner Services, 523 U.S. 75 (1998). Cannon, 441 U.S. 677, 694–696 (1979); Franklin 503 U.S. 60 (1991) declared monetary damages were available; Gebser, 524 U.S. 274 (1998) imposed institutional liability for the actions of employees when the institution knew of violations; and Jackson v. Birmingham Bd. of Ed. 544 U.S. 167 (2005) declared Title IX applied to retaliation. Ibid. Catherine E. Lhamon, Assistant Secretary of Education, and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, “Dear Colleague Letter: Transgender Students,” United States Department of Education, Office for Civil Rights and Department of Justice, (May 13, 2016).

CHAPTER 2

The Transformation of Equal Representation in Athletics The 1979 Three-Part Test

INTRODUCTION

A

fter the adoption of the statute, the next major moment in Title IX’s transformation took place in a narrow educational context—athletics. The Department of Health, Education, and Welfare (HEW) transformed Title IX by issuing a 1979 “Policy Interpretation” on “Intercollegiate Athletics,” which established a Three-Part Test for determining whether colleges and universities are complying with Title IX. Though the impact of this transformation would not be felt for two decades, the document promoted a specific standard of equality—numerical parity—as the litmus test for determining compliance. The Three-Part Test for compliance is a significant transformation of the statute because it promulgated a new way to measure sex equality that was not implicit in Title IX’s text. The policy change also ushered a new manner of Title IX expansion and reinterpretation through the use of informal guidance published by appointees in the Department of Health Education and Welfare, rather than through a formal amendment by congressional lawmakers. The moment that Title IX’s non-discrimination mandate was redefined to require numerical equity in athletics has and continues to evoke bitter debate, in part because of the popularity of intercollegiate football and men’s basketball, but primarily due to disagreements regarding the meaning of equality promoted by the Three-Part Test.

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The stories below of two student athletes—Jennifer and James— illustrate the impact of this transformation.1 This chapter next outlines why Title IX covers athletics, describes the current guidelines (the infamous Three-Part Test for compliance) as well as the history leading up to them, and details the Court decisions that bolstered the current policy interpretation. The conclusion summarizes the controversies emanating from the Three-Part Test’s conception of sex equality.

A Tale of Two Athletes Jennifer is a college softball player on a full athletic scholarship at a state university in the mountain west. Although the closest NCAA Division I competitive rival is 500 miles away and although games in March and April frequently are snowed out, Jennifer’s team is successful and just missed qualifying for the NCAA Championships this past season. With all of the starters returning, Jennifer and her teammates are looking forward to a great season next year. Before going home to Texas for the summer, Jennifer and three of her teammates sign a lease on an apartment near the campus. Two weeks after returning home, Jennifer receives a registered letter from her university. The letter informs her that, due to budget cuts, the university is abolishing the women’s softball and men’s baseball teams with immediate effect. Additionally, the university is revoking Jennifer’s scholarship with immediate effect. When Jennifer and her teammates sue for sex discrimination, the university says it has cut one team for each sport and the cuts affect thirty men and twenty women. Therefore, the decision is not discriminatory against women because more males have lost athletics spots than have females. James is a college wrestler on a full athletic scholarship at a state university in the south. His university sponsors a large number of sports and 50 percent of the athletes are women. However, for a variety of non-discriminatory reasons, women are 60 percent of the student body at James’ university. Although no one has complained that women lack opportunities, an outside consultant tells the university that the disparity between women’s representation in the student body (60 percent) and women’s representation among athletes (50 percent) is discriminatory. Concerned that it will face a Title IX lawsuit for sex discrimination, the university decides to eliminate a number of men’s sports—including the wrestling team. James, his wrestling teammates, and the men on the other eliminated teams sue the university for discrimination. They argue the elimination of men’s teams while preserving the women’s teams is discriminatory.

THE 1979 THREE-PART TEST

Two Notions of Sex Equality Two separate conceptions of equality underlie the controversies in establishing non-discrimination in athletics—equality of opportunity versus equality of outcome. The statute does not clarify what sex equality must look like, but explicitly prohibits treating one individual “differently from another on the basis of sex” or providing “preferential or disparate treatment to the members of one sex” in order to correct a numerical “imbalance which may exist.” Yet, eliminating intentional discrimination to provide equality of opportunity does not guarantee the equality of outcomes. Women may have an equal opportunity to take auto mechanics, but the vast majority of the class may still turn out to be male. Men can pursue nursing, but most nursing students may still be female. Quite simply, for a number of possible reasons, each sex’s participation in a particular subject may not match each sex’s representation in the general population. In athletics, those who promote equality of outcomes as the standard argue that the persistence of males dominating sports, or females’ apparent weaker interest, is evidence of disparate impact discrimination. Females are discouraged, while males are encouraged to pursue athletic competition due to gender stereotypes. Equal outcome advocates would like to switch the narrative. Based on the premise that there is no inherent reason why males and females should differ at all, the differential outcomes are perceived as problems to be solved. To eliminate disparate impact discrimination under Title IX would require identical outcomes for males and females in each program under its jurisdiction. In order to accomplish these equal outcomes, one would have to strictly monitor enrollments and accomplishments, and potentially deny opportunities to the overrepresented sex and incentivize participation by the underrepresented sex. For example, women would need to be discouraged from entering activities besides athletics, while males would need to be encouraged to move into those other areas. Those who advocate for equality of opportunities for women in athletics contend that the differential representation of the sexes in athletics may result from self-selection, that is, idiosyncratic or divergent individual interests rather than societal discrimination perpetrated against the entire female sex. Thus, if men outnumber women in athletics or shop class, it may be due to individual choice rather than disparate impact discrimination. This camp prefers to focus on the equality of opportunity standard as the measure of equity. A mandated equal outcome, or numerical parity, they argue, erroneously assumes that males and females possess an identical interest in athletics.

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The university responds that it can reduce opportunities for men in order to have equal opportunities for women. These cases illustrate the main questions regarding the meaning of sex equality and non-discrimination in athletics. Is it adequate to offer females an equal opportunity to participate in sport, or must there be an equal result as indicated by the actual number of male and female student athletes? As explained in more detail below, because of the transformation of Title IX through the 1979 and follow-up guidance documents, Jennifer’s university cannot eliminate the woman’s softball team, but James’ university can eliminate numerous men’s teams.

HOW TITLE IX CAME TO COVER INTERCOLLEGIATE ATHLETICS After its passage in 1972, the first question to be addressed with respect to sport was whether interscholastic or intercollegiate athletics even fell under Title IX’s jurisdiction. For the first decade and a half of enforcement the answer was yes and no—but mostly no.

Women’s Athletics Before Enforcement Prior to Title IX’s enactment, women’s athletics primarily consisted of club sports or intramural teams. To the extent that interscholastic competition existed for women, it was mostly regional or statewide. In 1971, approximately 3.7 million boys participated in high school sports in comparison to only 294,000 girls.2 At the college level, women represented only 15 percent of intercollegiate athletes.3 Female athletics was regulated by a non-governmental organization, the Association for Intercollegiate Athletics for Women (AIAW), which promoted its own notion of competition and leadership for women. The AIAW created an “amateur educational approach to sport” that prohibited athletic scholarships and did not simply follow the male model.4 Their motto was a “girl for every sport, and a sport for every girl,” that is, widespread participation rather than cutthroat competition.5 Regulating women’s intercollegiate athletic competitions was only a portion of the AIAW’s women’s model;6 they also aimed to foster female leadership skills by promoting “standards of excellence and educational soundness.”7 Men had already engaged in highly competitive sport at the primary and intercollegiate levels, and were regulated by the National Collegiate Association for Athletics (NCAA), which had existed since 1906. The NCAA’s long history focused on competitiveness, but also

THE 1979 THREE-PART TEST

sought to protect male student athletes from physical harm or exploitation.8 Later, the NCAA also began regulating women’s sport, due to the AIAW’s limited funds. Some advocacy groups saw this as an unwelcome takeover of the AIAW, the net result of which was the elimination of separate competitive models for male and female athletes.

The Statutory Text on Athletics 1972–1975 When passed, there was much interest regarding what the actual application of Title IX would be in particular contexts. The statutory text tasked the Department of Health, Education, and Welfare with drafting the implementing regulations, which were reviewed by Congress and ultimately enacted in 1975. Because the law says nothing about athletics or other programs not directly receiving federal funding, initial confusion, and later, bitter disagreement emerged regarding whether athletics was even under Title IX’s jurisdiction.9 According to Bernice Sandler, one of the main architects of Title IX, “very few in Congress noticed that athletics might be affected.”10 The initial question was whether an intramural, club, interscholastic, intercollegiate, or revenue-producing sports team constituted an “educational program or activity receiving Federal financial assistance.”11 Interest groups, such as the National Women’s Law Center (NWLC) and the National Collegiate Athletics Association (NCAA), promoted sharply different views of Title IX’s application. The NWLC read the law as a clear mandate for increasing the number of women’s athletic opportunities, while the NCAA argued that Title IX did not even apply to athletics.12 NCAA Executive Director Walter Byers worried that federal interference with athletics programs through Title IX might “damage the overall sports program[s]” at universities.13 Universities, especially those with thriving men’s football and basketball programs, did not welcome the idea of Title IX impacting how they ran their sports programs. They rejected the intrusion of the federal government into what they saw as NCAA and AIAW business. Moreover, most popular men’s teams were financially independent and self-sustaining. Since they did not accept federal funds, many college presidents understood their athletic programs to be outside of Title IX’s reach. When the debate over the implementation of Title IX began, large schools such as the University of Georgia, Notre Dame, and Stanford lobbied for an amendment to the law to permit the exclusion of revenueproducing sports, such as football.14 Title IX’s sponsor, Senator Birch Bayh, clarified that the law’s goal was “to provide equal access for male and female students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football

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involved.”15 In 1974, Senator Tower sought to codify this notion that revenue-producing sports could be exempted with a “Tower Amendment,” but Congress rejected it in favor of the “Javits Amendment,”16 which allowed schools to adopt “reasonable provisions considering the nature of particular sports.”17 This provision afforded schools some flexibility in determining how to create equal opportunities in sport for both sexes. According to former University of Georgia President Fred Davison, the Javits Amendment recognizes “that revenue-producing capability is high for some sports [men’s football and basketball] and low for others.”18 In other words, Davison believed that men’s football and basketball were safe from the intrusion of federal regulation under Title IX. After three years of debate and comment from interested parties (1972–1975), Congress authorized Title IX’s implementing guidelines and President Ford signed them in 1975, giving schools until July 21, 1978, to comply.19 Much to the dismay of Davison and other presidents of large universities, HEW’s draft regulations, released in 1974, did not include any caveat regarding “the nature of particular sports” in the text.20 The only specific statements referring to athletics permit “separate toilet, locker room, and shower facilities on the basis of sex,” as well as “separate athletic teams for memSEPARATE BUT EQUAL bers of each sex,” as long as those facilities were “comparable to such Few women would be able to make a facilities for students of the other coed competitive team made of the sex.”21 As a result, schools began best players because females—on to field sex segregated teams—one average—are smaller, physically weaker, male and one female—each with slower, possess less muscle mass, are required comparable facilities.22 more vulnerable to physical injury than For the most part, the initial males. The net result of competitive regulations removed the absolute athletics without sex segregation would barriers to women participating be the absolute dominance of males in competitive athletics. Within and far fewer female athletes overall. the first decade of Title IX’s enRecognizing this physical reality, schools actment, the number of girls parbegan to field sex segregated teams— ticipating in athletics increased by one male and one female, which does 500 percent.23 This dramatic rise not constitute differing treatment or in women’s participation brought discrimination because of sex, as neither further issues. Since Congress of the sexes is qualified to participate provided no money for the imon the other’s team. plementation of Title IX, schools

THE 1979 THREE-PART TEST

had to fund the expansion of women’s sports from other revenue sources. There were no federal funds allocated to pay for professional coaches, purchase equipment, or construct new playing or practice facilities. As a result, women often had to share facilities, equipment, and coaches with well-established men’s teams. Not surprisingly, some schools dealt with the problem of limited resources by short-changing female athletes with inferior coaching, equipment, and facilities, if teams were even created.

1975 Regulations: Reasonable Accommodations Reacting to these problems, HEW issued additional guidelines in a “Letter to Chief State School Officers, Title IX Obligations in Athletics,” which was published in the Federal Register in 1975 under the title: “Elimination of Sex Discrimination in Athletic Programs.”24 For the most part, the 1975 guidance document simply applied the general non-discrimination principles of Title IX’s statutory text. The letter required schools to provide “equal opportunity to members of both sexes interested in participating in the athletic programs institutions offer.”25 Schools were afforded flexibility in determining the student interest level and how they would accommodate those interests within the framework of existing athletic opportunities. Though somewhat vague on what schools should do to comply with Title IX, the guidance document was much clearer regarding what schools were not required to do. Educational institutions are not required to duplicate their men’s program for women. The thrust of the effort should be on the contribution of each of the categories to the overall goal of equal opportunity in athletics rather than on the details related to each of the categories. While the impact of expenditures for sex identifiable sports programs should be carefully considered in determining whether equal opportunity in athletics exists for both sexes, equal aggregate expenditures for male and female teams are not required. Rather, the pattern of expenditures should not result in a disparate effect on opportunity.26

In sum, schools are not required to provide an identical number of teams, athletic spots, expenditures, or scholarships to male and female student athletes. The overall “thrust” of the athletic guidance “is the concept of reasonableness, not strict proportionality.”27

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In determining whether equal opportunities are available, HEW DO FEMALE INTERESTS IN would consider a number of facSPORT DIFFER FROM MALES? tors, including: medical, training, housing, equipment, and other The heart of the controversy over relevant services and supplies equitable athletics is the question of offered respectively to male and whether males and females share female athletes.28 Although equal identical interests in sports. Those who expenditures were not required, argue that equality of opportunity in the failure to provide “necessary athletics are adequate to accommodate funds for teams of one sex” could females do not take a position on the be a violation.29 In general, schools question, while those who promote must “effectively accommodate equality of outcomes suggest that males the interests and abilities of memand females share identical interests in bers of both sexes.”30 Yet the sport and this is why statistics are the guidelines do not define “interests only true measure of equality. and abilities,” which afforded schools great leeway in determining how to measure male and female athletic interest. This ambiguity is the core of all Title IX athletic disputes to this day. These disputes led President Carter’s Secretary for Health, Education, and Welfare, Joseph Califano, to oversee the drafting of the transformative Three-Part Test to measure athletic interests and accommodations under Title IX.

THE CURRENT GUIDELINES FOR ATHLETICS COMPLIANCE The current standards for measuring compliance in athletics are the result of HEW’s 1979 Policy Interpretation that established the Three-Part Test and the OCR’s 1996 Clarification that bolstered the enforcement of Title IX’s policy interpretation.31 The Three-Part Test was first issued in 1979 as an explanation of the ways a school may comply with the “interests and abilities” section of the 1975 regulation. The 1979 Policy Interpretation, which is not a regulation, recommends a Three-Part Test for compliance that is still used today. All the follow up clarifications of the 1979 Policy Interpretation have been issued not as formal regulations, but rather as Dear Colleague letters, which constitute the agency’s interpretation of the statute. Several later clarifications of the athletics policy followed in 1998, 2003, 2005, 2008, and 2010, though the 2005 guidelines were later rescinded.32 While none of these athletic policy interpretations is binding, the Office for Civil Rights has historically

THE 1979 THREE-PART TEST

The Three-Part Test for Athletics as established in 1979 and 1996 • •

•

Provide intercollegiate opportunities for male and female students in numbers substantially proportionate to their respective enrollments. Demonstrate a history and continuing practice of program expansion, which is demonstrably responsive to the developing interests and abilities of the underrepresented sex, when participation opportunities are not substantially proportionate to the enrollment rates. Demonstrate that the interests and abilities of the underrepresented sex have been fully and effectively accommodated when participation opportunities are not substantially proportionate to the enrollment rates and the institution cannot show a continuing program expansion.

issued such guidelines to incentivize schools who wish not to be investigated to implement the OCR preferred standards.

The Three-Part Test To determine whether an educational institution provides adequate opportunities to the interests and abilities of both sexes, the federal government provides three options: substantive proportionality, or a history of expanding the underrepresented sex’s athletic program, or full accommodation of the interests and abilities of the underrepresented sex. An institution can comply with Title IX by satisfying any single part of this test.33

Part 1: Substantial Proportionality The first part has become the default standard, or “safe harbor,” for ensuring compliance with Title IX and protecting schools against costly investigations or litigation.34 Essentially, this option requires that the percentage of intercollegiate athletes who are female must closely mirror the percentage of full-time students at the school who are female. Since the term “substantially proportionate” athletic opportunities could be open to various interpretations, the OCR clarified that athletic opportunities are “substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, i.e., a team for which there is a sufficient number of interested and able students and enough available competition to sustain

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an intercollegiate team.”35 The OCR first determines how many additional athletic spots are required for the underrepresented sex in order to achieve proportionality. If this number is sufficient to field a team, then the institution must add a team. Similarly, if offered, athletic scholarships must be provided “for members of each sex in proportion to the number of students of each sex participating in interscholastic sports.”36 In effect, if 50 percent of the athletes are female, then females should receive approximately 50 percent of total athletic financial assistance. If the awarding of athletics scholarships for males and females exhibit a greater than 1 percent divergence from the substantive proportionality in the campus population, the institution can be in violation of Title IX.37 To illustrate how part 1 works in practice, remember James, the college wrestler. Although women comprised 50 percent of the athletes at his school, women were 60 percent of the student population. In order to achieve substantial proportionality, James’ university chose to eliminate opportunities for men in order to bring men’s participation down to 40 percent and increase women’s participation to 60 percent.

Part 2: History and Continuing Practice of Program Expansion A second option is for schools to demonstrate a continuing history of expanding opportunities for the underrepresented sex. So, the school can comply even if the representation of female athletes is substantially below their representation in the student body, as long as they can provide evidence of such expansion and history for women’s teams. The Office for Civil Rights evaluates the institution’s “history” and “continuing practice” of adding teams, increasing participants on existing teams, and responding to requests to add teams. The federal government also examines the institutions “continuing practice” of adding teams. In practice, to comply with this test, the institution must have consistently added new teams for the underrepresented sex, refrained from eliminating any teams of the underrepresented sex, have created a plan for adding new teams in the future, and should not have been concurrently adding programs for the overrepresented sex. Although this second option appears simple and straightforward, its application is actually somewhat complex. First, merely adding a women’s team is not sufficient to comply. The institution must also demonstrate that it has a history of expanding opportunities for women, that is, adding a team every few years or so. Second, if the institution adds teams both

THE 1979 THREE-PART TEST

for the men and women, it cannot comply with part 2. The OCR explains: “under part two an institution has flexibility in choosing which teams it adds for the underrepresented sex, as long as it can show overall a history and continuing practice of program expansion for members of that sex.”38 If opportunities for men are augmented in any way, the rate of increase for women’s teams would be lessened and therefore the institution would not comply with this second option. Third, in practice, an institution cannot eliminate an existing women’s team and still comply with this part, as illustrated in the vignette involving the elimination of Jennifer’s softball team.

Part 3: Fully Accommodating Interests and Abilities Third, an institution may demonstrate that it is meeting the “interests and abilities of the institution’s students who are members of the Table 2.1 Title IX Regulations Relating to Sports 1972 Statute

• Schools shall not discriminate on the basis of sex in programs or activities receiving federal funding • Unclear if athletic programs must comply

Implementing Regulations July 21, 1975

• Permits sex segregated athletic teams if the facilities for both sexes are equal • Proportionality in participation numbers, scholarships, or financing not required

Policy Interpretation • Equal athletics opportunities for both sexes November 11, • Does not require equal results in number of teams, types of teams, 1975 or money spent on teams because of assumed differences in athletic interest between males and females 1979 Policy Interpretation for Intercollegiate Athletics

• Institutes a Three-Part Test for compliance in intercollegiate athletics, which includes proportionality as a desirable option • The guidance focuses on intercollegiate rather than all interscholastic sports

1996 Clarification of Intercollegiate Athletics Policy

• Reaffirms the Three-Part Test • In practice, parts 2 and 3 more difficult to utilize • Focuses on intercollegiate rather than all interscholastic sports

2005 Additional Clarification

• Eases the standards by which schools may prove they have accommodated the interests and abilities of students

2010 Policy Clarification

• Rescinds the 2005 clarification and reverts to the Three-Part Test • Schools are typically found to be non-compliant on the basis of proportionality

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underrepresented sex—including students who are admitted to the institution though not yet enrolled.”39 In other words, the institution could still be in compliance if it can show that its female students do not wish to have any opportunities other than those that exist. This option requires schools to measure student interest in athletics by surveying its student body periodically to ascertain interest, ability, and expectation of competition in particular sports. If female students indicate an unmet interest, the OCR would likely require the institution to add female teams. If an institution currently has a team for the underrepresented sex, the institution cannot eliminate that team and still comply with part 3. The existence of the team proves that there is both interest and ability in that sport. If the team is eliminated, then the college or university cannot claim that it is fully accommodating the interests and abilities of the female athletes. The vignette involving the elimination of Jennifer’s softball team illustrates the point. Because there was a softball team, there was interest and ability in softball. By eliminating the team, the institution made it impossible to comply with part 3. Similarly, because the institution reduced opportunities for the underrepresented sex, the institution could not comply with part 2. The only alternative was to comply with part 1— substantial proportionality.

IMPACT OF THE THREE-PART TEST Some Sports Exempted from Title IX: Grove City College v. Bell Shortly after the 1979 release of the Three-Part Test, Jimmy Carter lost the presidential election to Ronald Reagan, a candidate vowing to reduce federal regulations across the board. The result was that the Three-Part Test stood unenforced. At the time, there was a serious legal question as to whether Title IX even applied to intercollegiate athletics because most teams did not receive federal funding. The Reagan administration’s answer was no—Title IX did not apply to programs unless they directly received funding—and this view was supported by the Supreme Court. Grove City College v. Bell was the controversial Supreme Court decision that found Title IX only to apply to programs directly receiving federal funding. 40 Since most athletics teams did not receive direct funding, Title IX did not apply. Nevertheless, local political pressure caused high schools and colleges throughout the country to add women’s teams, so women’s opportunities still improved in the Reagan years.41 Yet, this

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growth was not adequate to women’s rights advocates, and the U.S. Congress agreed.

Congress Responds: 1987 Civil Rights Restoration Act Congress responded to Grove City by amending Title IX with the passage of the Civil Rights Restoration Act in 1987.42 This is a legitimate exercise of law-making authority by the law-making branch. When Congress does not agree with an interpretation of its own laws, including an interpretation by the Supreme Court or a bureaucratic agency, it can amend an existing law or create a new law that corrects what they perceive as the Court’s faulty interpretations. That is a functional check that the legislature has over the Judiciary and the Executive. The passage of the Civil Rights Restoration Act is one of the only instances in Title IX’s existence in which the legislature formally altered the law. This amendment broadened Title IX’s jurisdiction to the entire general operation of any school receiving any amount of federal funding in any area. When implemented in 1988, this law settled the question once and for all that Title IX would apply to athletics. To bolster Title IX’s impact on athletics, Congress also passed the Equity in Athletics Disclosure Act in 1994 to require schools to report annual data about their men’s and women’s athletics programs. These two congressional laws led schools nationwide to add record numbers of female teams, and to eliminate some male teams, resulting in closer participation rates and expenditures for male and female athletes. This amazing growth occurred even before the 1979 Three Part Test had even been actively enforced by the Office for Civil Rights. Participation rates in intercollegiate athletics by males and females both increased, but female rates exponentially so—tenfold since Title IX’s adoption.43 Epitomizing this success was the U.S. women’s first ever Soccer World Cup win in 1991 and the 1999 World Cup win, which was played in the United States and ended in the dramatic penalty kick where Brandi Chasten ripped off her shirt upon scoring the winning goal. That win affected the public conscious—the image of Brandi Chasten became iconic for young women across the country. Notwithstanding these accomplishments, studies indicated that male participation rates still dwarfed female rates and financial and other resources were overwhelmingly given to male athletes.44 For advocacy groups such as the National Coalition for Women and Girls in Education, the gains demonstrated that women and girls have an equal interest in sports, and the inequities in expenditures and participation sports needed to be addressed.45

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Norma Cantú Gives the Three-Part Test Teeth When Norma Cantú entered the scene as the new Assistant Secretary for Civil Rights in May of 1993, she decided that more needed to be done to equalize expenditures, participation rates, scholarships, facilities, and interest level. She chose the unenforced 1979 policy recommendations as the way to achieve these goals. Cantú re-issued the Three-Part Test in a 1996 “Clarification of Intercollegiate Athletics Policy Guidance” and began actively enforcing it. She also extends the 1979 policy, which only focused on intercollegiate athletics, “to elementary and secondary interscholastic athletic programs.”46 In addition, Cantú augmented the guidance itself with an active enforcement regime. She increased the number of athletics compliance investigations, worked with agencies outside of the OCR to solidify her definition of equality, actively sought to influence courts to adopt the OCR policy, and urged the NCAA to adopt the guidelines set forth in the 1996 Clarification.47 According to Cantú, as with the 1979 Guidance, the 1996 “threepart test furnishes an institution with three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities,” however, the requirements of parts 2 and 3 continued to be ambiguous and increasingly difficult to prove under Cantú’s clarification. Under part 2, Cantú offers a more trenchant standard for student interests: WHO IS NORMA CANTÚ? “an institution is expected to meet the actual interests and abilities of its Norma Cantú is a civil rights attorney, students and admitted students.”48 who served as the Assistant Secretary The “actual interest” of a student of Education for the Office for Civil body has no fixed definition, as Rights for eight years during the Clinton new enrollments, drop outs, and Administration. Cantú is an outspoken transfer students continually alter advocate of affirmative action policies, the numbers of interested students. who worked previously as the regional A school would need a way to counsel and education director of the prove that all interests of actual stuMexican-American Legal Defense and dents are accommodated. In other Educational Fund. Her advocacy for words, approximating student increasing the participation of women in interest levels and meeting them is sports through instituting and enforcing not sufficient. If a single student the Three-Part Test for athletics under claims not to be accommodated Title IX led to her induction into the with an athletics spot, a school is Women’s Institute on Sports and liable to be investigated by the Education Hall of Fame. OCR or sued by the student.

THE 1979 THREE-PART TEST

In effect, the most concrete way that a school could comply with these standards was to demonstrate numerically that the number of female athletic participation spots mirrored women’s proportion of the population at the institution. As described above, “substantive proportionality” became the de facto litmus test, which Cantú called a “safe harbor” for compliance. Between 1992 and 2000, the Office for Civil Rights investigated 44 Title IX complaints. “In only three of these cases was the school found compliant under part 2. None of the schools investigated could successfully demonstrate compliance under part 3.”49 Overall, Cantú’s office made clear that it understood equality in athletics to mean eventual numerical parity—school expenditures, scholarship dollars, participation spots, and athletics facilities must reflect the male and female proportion of the school’s population. In response to the Clinton administration’s guidance, George W. Bush’s Assistant Secretary for Civil Rights Gerald Reynolds issued a “Further Clarification”50 to open additional means of compliance other than proportionality. Specifically, the 2003 guidance enabled schools to use surveys as evidence of accommodating women’s and men’s interest and ability to play and thereby opened up the possibility of using part 3. The Obama administration rejected the relaxed options of the Bush years and reverted back to Cantú’s model.

The Courts Endorse Substantive Proportionality The OCR offers these regulations as flexible options for schools attempting to expand athletics opportunities for females, while critics complain that the only way to comply would be to make each sex’s representation among athletes approximate to its representation among the student body. Moreover, they challenge the necessity of eliminating male teams in order to attain a numerical parity. Though never making it to the Supreme Court, these disagreements entered the circuit courts in the 1980s and 1990s. Haffer v. Temple University focused on the need for schools to

SUBSTANTIVE PROPORTIONALITY The Court has clarified the meaning of substantively proportional by using the OCR’s own language: “if the results are substantially proportionate (for example, if the enrollment is 52 percent male and 48 percent female, then, ideally, about 52 percent of the participants in the athletics program should be male and 48 percent female), the recipient is effectively accommodating the interests and abilities of both sexes.”

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provide substantially proportionate funding to male and female teams,51 while Roberts v. Colorado State Board of Agriculture made it difficult for schools to eliminate women’s teams if the student athlete participation numbers for males and females did not mirror the student population.52 The court found that Colorado State University’s termination of the women’s softball team caused a violation of Title IX by failing to accommodate female students’ interests and abilities, as in the story about Jennifer in the opening of the chapter. Colorado State was required to reinstate its women’s softball team. The case clarified that if a school’s participation is not substantively proportional for the underrepresented sex, it may not cut a women’s team. The better-known case, perhaps because it took place at an Ivy League campus, is Cohen v. Brown, which was heard by the U.S. Court of Appeals, First Circuit in 1992. When budget difficulties led Brown University to demote women’s gymnastics and volleyball teams from university-funded to donor-funded varsity status, Amy Cohen and her teammates sued the university. Brown attempted to challenge the OCR’s substantive proportional standard by claiming males and females do not share identical interests in sports. The court agreed with the students and found Brown in violation of Title IX. The court found Brown’s argument that women are less interested in intercollegiate athletics than men to be based on discriminatory “stereotyped notions of women’s interests and abilities.” The court argued, “Interest and ability rarely develop in a vacuum; they evolve as a function of opportun[ity] and experience. The Policy Interpretation recognizes that women’s lower rate of participation in athletics reflects women’s historical lack of opportunities to participate in sports.”53 In a major victory for female athletes, Brown University was directed to restore funding for the women’s intercollegiate athletic teams. There are three key implications of the Brown and Colorado State decisions. First, the cases demonstrate how the Three-Part Test operates in practice—it makes it difficult for institutions to eliminate any women’s teams. Second and more importantly, the cases in effect nullify parts 2 and 3 as valid measures of compliance. According to Cohen, the concept of “women’s interests” cannot be fully measured unless substantive proportional opportunities have already been created. In other words, the substantive proportionality standard exists because, unless women receive opportunities proportional to their representation in the population, they will not be able to demonstrate the full extent of their interests and abilities. If this is the case, the second and third parts would always be invalid measures of compliance. More importantly, they can be certain that athletic opportunities for women will eventually mirror their representation in the

THE 1979 THREE-PART TEST

enrollment of a given school. Third, these cases indicate that substantive proportionality means representation in athletics by each sex must mirror their respective proportions in the student body. The vignettes at the beginning of the chapter illustrate the results of these decisions. Jennifer’s university cannot comply with any of the three parts because they eliminated a women’s team. Even after the school cut a larger number of opportunities for men, Jennifer’s university is still not at substantial proportionality. Because Jennifer’s university eliminated an existing women’s team, it cannot comply with parts 2 and 3. The existence of the women’s team indicates that there were enough women who were interested and able to field a competitive team. In contrast, James’ university complies with the Three-Part Test even though it did nothing to increase opportunities for women—it simply reduced the number of opportunities for men on campus. By eliminating the men’s teams, James’ university achieved part 1—substantial proportionality. Though this may be an unintended consequence of the ThreePart Test, it has been upheld by the courts. In 2005, the National Wrestling Coaches Association challenged the OCR’s interpretation of the Three-Part Test, but to no avail.54 The Association alleged that, the Department of Education encouraged schools to reduce opportunities for male athletes to attain numerical parity. Overall, the court has not been receptive to this argument that Title IX enforcement unlawfully discriminates against males.55 Though the Supreme Court has never ruled on the merits of these cases, after the Colorado State and Brown cases, litigation has been decided along the same lines in every other circuit, except the Federal and D.C. circuits. In the meantime, the de facto standard for proving that an

Table 2.2 Key Court Decisions—Title IX and Athletics

Grove City College v. Bell

Found that Title IX does not cover sports unless they directly receive federal funding.

Cohen v. Brown

Prevented the elimination of women’s teams when substantive proportionality has not been achieved.

Roberts v. Colorado State

The first time that an appellate court applied the Three-Part Test for athletics and ordered reinstatement of a women’s team.

Equity in Athletics Inc. v. United States Department of Education

James Madison University eliminated seven men’s and three women’s teams to bring women’s participation rate to 61% and achieve substantive proportionality. Ruled that the threepart test was valid.

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institution does not discriminate against the sexes in its athletics program is to maintain expenditures and participation numbers that mirror each sex’s representation in a school’s population.56 This standard was created by the Office for Civil Rights through a policy guidance document, has been actively enforced by the OCR since the 1990s, and has been supported by the lower federal courts.

REMAINING CONTROVERSIES Title IX’s current policy on athletics resulted from the transformation of its original statute through its 1979 and 1996 Policy Interpretation and Clarification. The remaining controversies emanate from two distinct groups who disagree regarding the best way to demonstrate equality in athletics—advocates of proportionality as the true measure of equality and their critics who challenge the methods employed to attain numerical parity in sport. Advocates argue that proportionality, or equality of outcomes, is the only legitimate way to eliminate discrimination “on the basis of sex” in athletics. Consequently their main concern is that proportionality has not yet been reached. They seek to bolster the authority of the OCR, who they view as having the appropriate expertise to enforce women’s civil liberties in a timely fashion. The advocates include prominent women’s organizations such as the Feminist Majority Foundation, the Women’s Sports Foundation, the National Women’s Law Center, the National Coalition for Women and Girls in Education, among others. Advocates urge that “the playing field is still not level for girls.”57 Substantial proportionality, they contend, is the only way to combat the gender stereotypes that have prevented women from participating. Proponents of the Three-Part Test appropriately fear that future administrations could easily fail to enforce, overturn, or ignore this guidance altogether. Welch Suggs argues that “ ‘close’ is not all the way. Women are a clear majority of students in higher education— 7.5 million of the 13.2 million undergrads at American colleges. Women are underrepresented on sports teams, and most of their teams receive lower budgets, poorer facilities, and less attention than their male counterparts.”58 Supporters of Title IX’s first part “point out statistical equality has not been achieved; 56 percent of college students are women and 42 percent of the athletes are women.”59 Marcia D. Greenberger of the National Women’s Law Center argues that “While there has been enormous progress, there is still a long way to go” to achieve substantial equality for women in collegiate sports.60 The statistics provide the evidence: women receive just over “40 percent of opportunities to play

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college sports,” and women’s athletic scholarships “are worth, cumulatively, $50 million less than athletic scholarships for men.”61 The critics of proportionality, including the Independent Women’s Forum and the Competitive Enterprise Institute, disagree philosophically with the notion of proportionality as a measure of equality. They argue that Title IX was instituted to afford women equal opportunities to engage in sport, not to manufacture the equality of outcomes. Because males and females biologically differ, as acknowledged in Title IX’s authorization of segregated sports teams and facilities, there might be reason to believe that male and female interest in sport may not be identical as proportionality assumes. Moreover, proportionality, in their view, is itself discriminatory against males because it mandates an unconstitutional quota. Finally, they emphasize that the standard of proportionality lacks the legitimacy and force of law because it was written as mere guidance by an unelected bureaucratic agency. The OCR would need congressional approval to attain the force of law. The 1979 Three-Part Test and the subsequent clarifications in the late twentieth and early twenty-first centuries, which have been universally endorsed by the federal appellate courts, have transformed Title IX from a mandate for equal opportunity into a mandate for equal outcomes in the context of interscholastic and intercollegiate athletics. As a practical matter, if a school sponsors interscholastic or intercollegiate teams, it eventually must ensure that participation in athletics mirrors each sex’s representation in the student body. Although the athletics context is unique in that inherent physical differences between the sexes necessitate sex segregated teams, the plain text of the statute does not mandate equal outcomes. In the case of athletics, one area in which treating the sexes separately based upon sex is necessary, the OCR, along with the courts, have taken this to mean that the only measure of true non-discrimination is the equality of results. As a result, the benchmark that the OCR and the courts have used to demonstrate equity is identical expenditures, facilities, and participation rates. While this interpretation of Title IX is limited to athletics, it could easily be extended to other contexts where the inherent physical differences between the sexes are irrelevant, such as the STEM fields (science, technology, engineering, and mathematics).62 Based upon the assumption that males and females possess identical predilections towards sport or any other pursuit, defenders could argue that the only true measure of “gender equity” in STEM fields would be quantitative measures, such as “the percentage of women undergraduates who are majoring in the department; the percentage of women who are graduate students and postdoctoral research associates; and the percentages of women who are

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lecturers/instructors, assistant professors, associate professors, and full professors.”63 They believe that female’s disproportionate accomplishments in comparison to male’s evidence women’s subjection by current laws, public policy, and social conditioning. In sum, a disproportionate number of women pursuing physics, computer coding, or math Ph.D.’s could only result from disparate impact discrimination. The next chapter illustrates how this feminist ideology, known as dominance theory, effectively transforms Title IX into a sexual harassment law.

NOTES 1

2

3

4 5 6 7 8

9 10 11 12 13

The cases are Roberts v. Colorado State University, 814 F. Supp. 1507 (D. Colo.), aff’d in part, rev’d in part sub nom. Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir.), cert. denied, 510 U.S. 1004 (1993) and Equity in Athletics, Inc. v. United States Department of Education, 504 F. Supp. 2d 88 (W.D. Va. 2007), aff’d, 291 Fed. Appx. 517 (4th Cir. 2008) (unpublished), cert. denied, 556 U.S. 1127 (2009), further proceedings, 675 F. Supp. 2d 660 (W.D. Va. 2009), aff’d, 639 F.3d 91 (4th Cir. 2011), cert. denied, 132 S. Ct. 1004 (2012). In the interests of both brevity and clarity, the vignettes do not reflect the actual facts of the cases. National Federation of State High School Associations’ 2002 Participation Survey cited in U.S. Department of Education, Secretary’s Commission for Opportunity in Athletics, Open to All: Title IX at Thirty, Washington, D.C., 20202, February 28, 2003, 13. R. Berry & G. Wong, Law & Business of the Sports Industries: Common Issues in Amateur & Professional Sports (Santa Barbara, CA: Greenwood Publishing Group, 1993), 211. Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton, NJ: Princeton University Press, 2005), 47. Ibid., 50. Amy Wilson, Committee on Women’s Athletics, “The Status of Women in Intercollegiate Athletics as Title IX Turns 40” ( June 2012). Association for Intercollegiate Athletics for Women (AIAW) archives, Special Collections, University of Maryland Libraries. Rodney K. Smith, “A Brief History of the National Collegiate Athletic Association’s Role in Regulating Intercollegiate Athletics,” Marquette Sports Law Review 11, no. 1 (2000): 11–12. Grove City College v. Bell, 465 U.S. 555, 570 (1984). Bernice R. Sandler, “Too Strong for a Woman: The Five Words that Created Title IX,” Equity & Excellence in Education 33, no. 1 (2000): 11. Public Law No. 92–318, 86 Stat. 235 ( June 23, 1972), codified at 20 U.S.C. §§ 1681–1688. Suggs, A Place, 68. Congressional Record 1974, May 20, 1974, vol. 120, pt. 15: 322. Also quoted in Suggs, A Place, 68.

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14 15 16

17 18 19

20 21 22 23

24 25 26 27 28 29 30 31

32

Fred C. Davison, “Carrying Title IX Too Far,” New York Times, December 3, 1978. Ibid. Office of the Secretary, “A Policy Interpretation: Title IX and Intercollegiate Athletics,” Department of Health, Education, and Welfare Office for Civil Rights (December 11, 1979), also at Federal Register 44, No. 239: 71413. Subsequent references to the former document will cite 1979 Athletics Interpretation. 1979 Athletics Interpretation; Davison, “Carrying Title IX Too Far.” Davison, “Carrying Title IX Too Far.” “Nondiscrimination on the Basis of Sex Under Federally Assisted Education Programs and Activities,” 40 Fed. Reg. 108 ( June 4, 1975): 24142–24143. Subsequent references to this document will cite Title IX Implementing Regulations. Davison, “Carrying Title IX Too Far.” Title IX Implementing Regulations, 24142–24143. Neal v. Board of Trustees, 198 F.3d at 773 n.8, (9th Cir. 1999). Susan Buttenwieser, “Time Flies When You’re Changing the World,” Ms. Magazine, May–June 1997, 46. Also quoted in Amy Bauer, “If You Build It, They Will Come: Establishing Title IX Compliance in Interscholastic Sports as a Foundation for Achieving Gender Equity.” William and Mary Journal of Women and the Law 7, no. 3 (2001): 983. “Sex Discrimination in Athletics Programs: A Memorandum,” 40 Fed. Reg. 218 (November 11, 1975): 52655–52657. Ibid. Ibid. Ibid. Ibid. Ibid. 34 C.F.R. § 106.41(c)(1). 1979 Athletics Interpretation; Norma Cantú, Assistant Secretary for Civil Rights, “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test,” United States Department of Education, Office for Civil Rights ( January 16, 1996). Subsequent references to the latter document will cite the 1996 Three-Part Test Clarification. Mary Frances O’Shea, National Coordinator for Title IX Athletics, “Dear Colleague Letter: Bowling Green State University,” Office for Civil Rights, U.S. Department of Education, Office of the Assistant Secretary ( July 23, 1998); Gerald Reynolds, Assistant Secretary for Civil Rights, “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance,” United States Department of Education, Office for Civil Rights ( July 11, 2003); James F. Manning, Delegated the Authority of the Assistant Secretary for Civil Rights, “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test- Part Three,” Office for Civil Rights, U.S. Department of Education (March 17, 2005). Stephanie Monroe, Assistant Secretary for Civil Rights, “Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance,” Office for Civil Rights, U.S. Department of Education, Office of the Assistant Secretary, (September 17, 2008); Russlynn Ali, Assistant Secretary for Civil Rights, “Dear Colleague Letter,” Office for Civil Rights, U.S. Department of Education, Office of the Assistant Secretary, (April 20, 2010).

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33

34 35 36 37

38 39 40 41

42 43 44

45 46 47 48 49 50 51 52 53 54 55

McCormick v. School District. of Mamaroneck, 370 F.3d 275, (2nd Cir. 2004); 615. Miami University Wrestling Club v. Miami University, 302 F.3d 608, (6th Cir. 2002); 1047. Chalenor v. University of North Dakota, 291 F.3d 1042, (8th Cir. 2002); 879. Pederson v. Louisiana State University, 213 F.3d 858, (5th Cir. 2000); 770. Neal v. Board of Trustees, 198 F.3d 763, (9th Cir. 1999); 271. Kelley v. Board of Trustees, University of Illinois, 35 F.3d 265, (7th Cir. 1994); 830. Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, (10th Cir. 1993); 171. Williams v. School District of Bethlehem, 998 F.2d 168, (3rd Cir. 1993); 896–897. Cohen v. Brown University, 991 F.2d 888, (1st Cir. 1993). 1996 Three-Part Test Clarification. Ibid. 34 C.F.R. § 106.37(c) (emphasis added). See also 1979 Athletics Interpretation, 71413, 71415–71423. This is an example of a federal government promulgated test set forth in a 1998 letter to Bowling Green State University: O’Shea, “Dear Colleague Letter: Bowling Green State University,” ( July 23, 1998). 1996 Three-Part Test Clarification. Ali, “Intercollegiate Athletics Policy Clarification” (April 20, 2010). Grove City College v. Bell, 465 U.S. 555 (1984). Jessica Gavora claims that women’s athletic opportunities were on the rise even before Title IX’s enactment and questions whether the law is responsible for women’s unprecedented opportunities. See Gavora, Tilting the Playing Field: Schools, Sports, Sex, and Title IX (San Francisco, CA: Encounter Books, 2003), 32–34. Civil Rights Restoration Act of 1987, Public Law 100–259, Statutes at Large 102 (March 22, 1988): 28–32. National Coalition for Women and Girls in Education (NCWGE). Title IX at 40: Working to Ensure Gender Equity in Education (Washington, DC: NCWGE, 2012), 8. NCAA Gender Equity Task Force, Final Report of the NCAA Gender-Equity Task Force. (Kansas City, MO: NCAA Publications, 1993), 1; USA Today Staff, “Title IX: 20 Years Later a New Call for Action,” USA Today, June 8, 1992 at Section C. NCWGE, Title IX at 40, 2–3. 1996 Three-Part Test Clarification. Gavora, Tilting the Playing Field, 28–29. Ibid., emphasis added. Gavora, Tilting the Playing Field, 37. “Further Clarification of Intercollegiate Athletics Policy” ( July 11, 2003). Haffer v. Temple University, 678 F. Supp. 517 (1987). Roberts v. Colorado State Board. of Agriculture, 998 F.2d 824, 834–835 (10th Cir. 1993). Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993). National Wrestling Coaches Association v. Department of Education, 383 F. 3d 1047 (D.C. Cir. 2004), cert. denied, 545 1104 (2005). Ibid.; Equity in Athletics, Inc. v. United States Department of Education, 504 F. Supp. 2d 88 (W.D. Va. 2007), aff’d, 291 Fed. Appx. 517 (4th Cir. 2008) (unpublished), cert. denied, 556 U.S. 1127 (2009), further proceedings, 675 F. Supp. 2d 660 (W.D. Va. 2009), aff’d, 639 F.3d 91 (4th Cir. 2011), cert. denied, 132

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56 57 58 59 60 61 62

63

S. Ct. 1004 (2012). See, for example, Williams v. School District. of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993); Pederson v. La. State University, 213 F.3d 858, 880 (5th Cir. 2000); Miami University Wrestling Club v. Miami University, 302 F.3d 608, 612–613 (6th Cir. 2002); Chalenor v. University of N.D., 291 F.3d 1042, 1046 (8th Cir. 2002); Roberts v. Colorado State University, 998 F.2d 824, 828–829 (10th Cir. 1993), among others. 1996 Three-Part Test Clarification. NCWGE, Title IX at 40, 7. Suggs, A Place on the Team. 3. Frank Litsky, “Colleges; Bush Administration Says Title IX Should Stay as It Is” New York Times, July 12, 2003. Ibid. Ibid. Richard N. Zare, “Sex, Lies, and Title IX: Federal Law banning sex discrimination in schools may do as much for academics as it has for athletics.” Education 84, no. 20, 46–49; Debra R. Rolinson, “Title IX as a change strategy for women in science and engineering . . . and what comes next,” in Women, Work, and the Academy. U.S. Department of Education, “Title IX: A Sea of Change in Gender Equity in Education” (Washington, DC: Office for Civil Rights, U.S. Department of Education, 1997), 9.

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CHAPTER 3

The Expansion of Title IX Liability The 1997 Sexual Harassment Guidance

T

he Supreme Court (SCOTUS) and the Office for Civil Rights (OCR) together instituted the next substantive changes to Title IX’s meaning and enforcement by allowing students to sue when Title IX is violated, and by expanding Title IX’s mandate to include a ban of sexual harassment. These alterations include one significant expansion—the inclusion of sexual harassment as a form of sex discrimination—and two additional transformations—the Court’s discovery of a newly defined right and the creation of an additional form of actionable (peer-on-peer) sexual harassment. This chapter has three parts, each of which demonstrates the power of the Supreme Court and the federal bureaucracy to expand and enforce Title IX’s scope and meaning. The first section details the Supreme Court decisions that increase the legal remedies for students. Specifically, the court cases Cannon, Franklin, Gebser, and Davis, respectively, recognize a private right of action whereby aggrieved students can enforce Title IX, impose monetary liability for Title IX violations that permit students to collect monetary damages, and find that schools have liability for sexual harassment when it occurs. The next section details SCOTUS’s expansion of the types of behavior prohibited by Title IX. The added legal options for students intend to incentivize schools to adhere to Title IX. The third section explores the OCR’s inclusion of peer sexual harassment as actionable under Title IX. Assistant Secretary Norma Cantú in the Office for Civil Rights assists in this transformation by issuing a 1997 Sexual Harassment Guidance, which goes beyond complying with previous court rulings in two substantive ways.1 First, the document adds student sexual misconduct as an actionable violation of Title IX to influence

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the outcome of pending Supreme Court cases; and second, the document expands the meaning of sexual harassment to add forms of “gender discrimination” as punishable under Title IX. The new policies in the 1997 document were supplemented by Cantú’s punitive model of investigation. To appreciate the scope of these transformations, consider the story below of Joan who is sexually harassed and assaulted by a teacher.2

A STORY OF SUING A SCHOOL FOR SECRET SEXUAL HARASSMENT Joan is a tenth grade student, who attends a public high school in Georgia. Her teacher, Mr. Cole, repeatedly engages her and other students in sexually explicit conversations and makes sexually suggestive jokes during practice. When the two are alone, he asks her when she lost her virginity, what sexual activities she and her boyfriend enjoy, and whether she is interested in sex with an older man. She tries to duck the questions and avoids being alone with him. In her eleventh grade, he asks to excuse her from class and takes her to a secluded location on campus where he forces her to have intercourse with him. He does this on three other occasions. Eventually, he convinces her to begin a physical relationship with him. Out of fear, she keeps the relationship, which includes several sexual encounters, secret. Joan’s parents discover the sexual relationship and inform the school. When the school finds out about the harassment and assault, they fire Mr. Cole, who is also charged criminally. Joan files a complaint against her school with the Office for Civil Rights. The OCR believes that the school should have addressed the harassment sooner. They respond that they have already fired Mr. Cole. Though he has been fired, Joan still feels traumatized. Her parents convince her to sue the school district for monetary damages. She is not awarded any because she failed to inform anyone at the school of the behavior. The school claims that they could not have intervened to stop Mr. Cole’s behavior because no one had informed them of his actions and the court agrees. Joan believes this decision is unjust because it fails to force schools to preemptively eliminate the possibility of sexual harassment. If the year was 1975, Joan’s only option would have been to report the harassment to the federal government and hope that an investigation would follow. The notion “sexual harassment” as a form of discrimination banned by Title IX had barely been conceived. As of 1980, Joan would

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have a right to bring suit against her school because the Supreme Court found a private right of action in Title IX. However, not until the turn of the century, thanks to the 1997 Sexual Harassment Guidance issued by the Office for Civil Rights as well as the Supreme Court case Davis v. Monroe County District, would it become much easier for Joan to hold her school district accountable for an employee’s or non-employee’s sexual harassment and assault.

PRIVATE RIGHT OF ACTION FOR MONETARY DAMAGES Title IX was passed as a civil rights law to ensure that males and females have equal access to education. Congress tasked the Department of Health, Education, and Welfare (HEW), and later the Office for Civil Rights (OCR), with ensuring Title IX compliance by institutions of learning through investigations of alleged violations backed up by the threat of the removal of federal funding. In its early years, HEW would investigate complaints. If HEW found a school guilty of a Title IX violation, the school would either voluntarily correct the discriminatory practice, or face the loss of federal funding. Often a HEW investigation would result in an agreement requiring the school to do something specific, such as admit the student against whom it had discriminated and/or end the discriminatory practice. However, if the violation only happened once, not much was likely to change. In general, schools were deterred from discriminating by the bad press that might come from an investigation and the fear that they might lose federal funds.

Cannon v. University of Chicago The question arose as to whether this administrative resolution—filing a complaint with HEW and waiting for the bureaucracy to conduct a lengthy investigation—was a sufficient remedy to compel schools to stop discriminating against women. Cannon v. University of Chicago (1979) answered that concern by finding a private right to sue under Title IX. Geraldine Cannon sued the University of Chicago, alleging that she was denied admission into two medical schools because she was a woman. The lower district and appeals courts denied her standing to sue the university under the view that Title IX did not grant her the right to do so.3 In other words, Cannon’s only option was administrative: she could file a complaint with the office of Heath, Education, and Welfare and await the outcome of the investigation.

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A lengthy federal investigation might not help Geraldine Cannon, PRIVATE RIGHT OF ACTION who, at 39, needed to enter VS. ADMINISTRATIVE medical school in a timely manner REMEDY in order to facilitate her career. A private right of action, howAn administrative remedy is a remedy ever, would allow an individual that an agency, such as the Office for student, such as Ms. Cannon, to Civil Rights, provides in order to enforce receive an individual settlement. or protect your rights. An example would The Supreme Court agreed that be the OCR issuing a settlement requiring Cannon had a private right to sue a university to provide sexual harassment “despite the absence of any express training to protect students against authorization for it in Title IX.”4 such behaviors. A private right of action Though Title IX only contains a (or cause of action) allows an individual to general prohibition against sex sue in court for the change of a policy or discrimination, the court held that for money. For example, a student might permitting a student to bring a sue to be admitted to a school whose private lawsuit “is not only sensible sexist admissions policy prevented but is also fully consistent with and women from entering. The student might in some cases even necessary to also sue for legal fees. the orderly enforcement of the statute.”5 In other words, a student would no longer need to file a complaint with the OCR and hope that the agency utilized its investigative and punitive power. Instead, she could more effectively and efficiently enforce Title IX through a private lawsuit.6 Thus, just seven years after its passage, the Supreme Court empowered individuals to enjoy a new private right of action under Title IX. The transformative force of the court in adding the private right of action to Title IX is best understood in the context of the law’s legislative history as modeled after another civil rights law—Title VI of the Civil rights act of 1964.7 Though Title VI does not ban sex discrimination, the text of the two statutes is virtually the same. “Title IX was modeled after Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in programs receiving federal funds. Both statutes condition federal funding on a recipient’s promise not to discriminate, in what amounts essentially to a contract between the Government and the recipient.”8 Like Title VI, the text of Title IX does not include the explicit private right of an individual to sue in order to compel adherence to the contract with the federal government. The absence of a private right to sue in both Title VI and IX may be due to the fact that these two laws are contractual in nature—not outright

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prohibitions of specific behaviors. A discriminatory practice would simply breach the contract and allow the government to withhold federal funding. Before Cannon (1979), SCOTUS had not found an implied private right of action to sue in Title VI and rarely found such rights if they were not expressly stated by Congress in the language of the law.9 In general, the court assumed that the lawmakers in Congress would include explicit language if they intended private lawsuits to be permitted. The Court, however, altered legal precedent by finding an “implied” right in Title IX that allowed Geraldine Cannon to sue the University of Chicago. Consequently, Cannon’s assertion of the implied right to sue allowed for more prompt remedies for victims, and greater means of enforcing its sex discrimination ban.

Franklin v. Gwinnett School District (1992) With the right to sue schools firmly in hand, students were empowered to challenge perceived Title IX violations. Questions still remained as to how far that right extended: could a plaintiff receive monetary damages or would she be “limited to obtaining orders prohibiting such conduct in the future, requiring schools to establish grievance procedures or to dismiss the offending teachers, or the like.”10 Franklin v. Gwinnett School District (1992) answered that question of potential damages for students in Title IX cases.11 After the case, students could sue for financial damages and could sue if sexually harassed by a teacher or agent of the school. However, the case also limited the school’s responsibility to known misdeeds by its employees. Franklin was also the first Supreme Court case to consider sexual harassment as a form of sex discrimination under Title IX. The federal Second Circuit Court of Appeals had previously considered a Title IX sexual harassment case in 1980. Catharine MacKinnon, the feminist legal scholar who created the notion of sexual harassment as a form of sex discrimination in the workplace under Title VII, argued with Anne E. Simon and Phyllis Crocker that sexual harassment in education constituted a violation of Title IX.12 The plaintiffs represented female Yale students, who claimed to have been sexually harassed by professors and staff, but had no mechanism by which to file complaints within the university. They attempted to sue Yale University, not for financial compensation, but for a change in the institution’s sexual harassment policies and procedures. Though they failed to prove their case, it was the first Title IX case to recognize sexual harassment as a form of sex discrimination. As a result, schools across the country began drafting policies banning sexual harassment by faculty and staff.13

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TITLE VI, VII, AND IX The texts of Title VI and Title IX are virtually the same. Title IV of the Civil Rights Act of 1964: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Title IX of the 1972 Education Amendments: 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. Title VII of the 1964 Civil Rights Act stands in contrast to Title VI and IX. The statutory language of Title VII “is framed as an outright prohibition” of sex discrimination in employment, and explicitly permits a private cause of action for an aggrieved party. While allowing its overseeing agency (the EEOC) to conduct investigations, if the EEOC fails to or decides not to take civil action against an alleged violation of Title VII, the complainant could still bring an individual lawsuit, with written permission of one member of the EEOC. These additional legal remedies in Title VII led women’s rights advocates to prefer to use Title VII as a model for Title IX interpretation. According to the Supreme Court, Title IX is not analogous to Title VII. However, once SCOTUS ruled in Cannon, the right exists. Moreover, the Title IX case, Cannon v. University of Chicago, is later used as a precedent to find an implied private right of action in Title VI. Constitutionalists see the court as bending the legal structure of Title IX, which does not explicitly grant such a right. In the twenty-first century, it has become rare for the Supreme Court to find implied rights of action where they are not expressly granted in the statutory framework. Later courts have argued that it is the role of Congress, rather than the courts or bureaucratic agencies, to grant those individual options in the language of the laws they pass.

Christine Franklin was a sophomore in Gwinnett County when she claimed to have been sexually harassed by her male coach and teacher, Andrew Hill. Ms. Franklin claimed that Hill had used sexually explicit language and forced kissing, and ultimately coerced her into having sexual intercourse with him at the school. Hill allegedly used his authoritative position as a teacher and coach to coerce sexual activity from Ms. Franklin. He thereby treated her differently than he would a male student because

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of his desire to have sexual intercourse with her. In such a case WHO IS CATHARINE of overt harm and intentional MACKINNON? disparate treatment, one might question whether leveling a comCatharine MacKinnon is a self-described plaint through the Office for Civil radical feminist and legal scholar, who Rights to launch an investigation pioneered the notion that the sexual would be sufficient to remedy the harassment of women should be harm done to Ms. Franklin. Moreconceived as a form of sexual over, would removing Hill from discrimination, which the Supreme Court his position provide Christine adopted in Title VII and Title IX decisions. with the tools she needs to recover As a radical feminist, MacKinnon from the harassment? Though she understood American society to have ultimately was not awarded any been built upon gender stereotypes that monetary damages, Ms. Franklin continue to subordinate women and was able to establish her right to aggrandize men. sue for monetary damages under Title IX. In a unanimous decision, Justice White, speaking for the majority, acknowledged Ms. Franklin’s right to bring a civil suit against the Gwinnett School District as an individual, and also recognized her right to sue for monetary damages if such sex discrimination is present. However, the court also limited the school’s liability to incidents of overt and known sexual harassment. The case was remanded to the Eleventh Circuit and was ultimately settled out of court. The way a private Title IX lawsuit works is that the plaintiff sues the school district instead of the individual or individuals who actually perpetrated the discriminatory actions. For example, Ms. Franklin did not sue Hill under Title IX, but sued the entire school district for failing to prevent his behavior. In a separate criminal case, Hill was arrested and charged. A Title IX case is a different matter. In essence, the Title IX allegation was a suit against the school system, i.e., holding the school district culpable for negligence in facilitating the hostile environment that exacerbated Hill’s treatment of Franklin. Though Ms. Franklin might have sued Hill separately in a non-Title IX case, she may have chosen to sue the school district instead because the teacher’s financial resources may not have been sufficient to enable meaningful financial damages be awarded. Women’s rights activists viewed the decision as a significant expansion of protections for victims of sex discrimination, as the potential to be found liable for monetary damages supplies “a meaningful remedy that will spur schools to guard against such misconduct.”14 Franklin is notable,

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not only because it answers the question of monetary damages in Title IX lawsuits, but also because it is the first Supreme Court case to conceive of sexual harassment as a violation of Title IX. After the case, schools began developing more specific sexual harassment policies. Cannon and Franklin together increased the remedies by which aggrieved students could combat perceived discrimination under Title IX, and possibly also improved the promptness by which such remedies might be applied. Prior to Franklin, if a school excluded someone from a class because of sex or, in the context of sports, failed to comply with the Three-Part Test in athletics, it would not have faced monetary liability. The addition of damages in private lawsuits led schools in the 1990s to adopt a defensive posture against every single student within their institution, any of whom is a potential lawsuit waiting to happen. The next part of this transformation includes SCOTUS and the OCR issuing mutually supportive findings and guidance that multiply the types of offenses that constitute actionable violations of Title IX to include various forms of sexual harassment.

SEXUAL HARASSMENT OF STUDENTS BY TEACHERS VIOLATES TITLE IX In the early 1990s, sexual harassment had not yet resulted in monetary awards. Alida Star Gebser tried to change that when she alleged that her school district had been negligent in permitting her teacher to sexually harass her. Though she lost her case and was not awarded any monetary damages, Ms. Gebser’s case clarified that schools could be held accountable for sexual harassment by teachers if the school knew and behaved in a grossly negligent manner.

Gebser v. Lago Vista School District (1998) Ms. Gebser was an eighth grade student when she participated in a reading group with Frank Waldrop, a teacher in the Lago Vista Independent School district. She alleged that Mr. Waldrop made sexually explicit remarks in the reading group. In the fall of 1991 when she entered the Lago Vista High School, she was placed in Mr. Waldrop’s class in the fall and spring semesters. Later, they were discovered having sex and the teacher was arrested. Mr. Waldrop’s arrest was on a criminal charge of an inappropriate relationship. This arrest was not part of the Title IX case. Ms. Gebser’s Title IX case—Gebser v. Lago Vista School District (1998)— was a civil case against the school district, rather than a criminal case against Waldrop, though Ms. Gebser also sued Waldrop in a separate case. The

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priority of civil cases is to re-establish equality for the victim by providing the necessary accommodations to make the victim feel as if he or she is being treated equally. The focus in a criminal case is on punishing the perpetrator and keeping the community safe.15 A civil case under Title IX aims to determine, for example, if the school was negligent in employing Mr. Waldrop, in being ignorant that harassing behavior was occurring, or in failing to provide a proper response or resources to Ms. Gebser. Civil suits do not aim to punish the perpetrator, in this case Mr. Waldrop; rather, the civil case aims to restore equal treatment to all students and focuses on the victim’s right to be free from discrimination.16 The National School Boards fought the case and warned of the harmful financial devastation that would affect the nation’s public schools if the awarding of monetary damages in Title IX suits were permitted.17 The National Women’s Law Center, who filed a brief in support of Ms. Franklin’s case, viewed this case as an opportunity to expand the protections offered under Title IX to include private lawsuits in cases of the sexual harassment of students. The first question in Gebser was whether sexual harassment by a teacher constituted a form of sex discrimination banned by Title IX. Following Franklin the court found the answer to be yes. The court ruled that schools could be held responsible “for teacher-student sexual harassment in an implied private action under Title IX.”18 Though Title IX’s ban on sexual harassment was new in the 1990s, the court found that it is consistent with the law’s spirit to outlaw all forms of sex discrimination, including forms that might not have been conceptualized at the time the law was enacted. The basis for seeing sexual harassment as a violation of equal rights is the power that a teacher or staff member might have over a student to coerce certain behaviors. Justice Stephens explained that as a “secondary school teacher, Waldrop exercised even greater authority and control over his students than employers and supervisors exercise over their employees. His gross misuse of that authority allowed him to abuse his young student’s trust.”19 The “gross misuse” of his authority prevented Ms. Gebser from receiving the same access to education that any male in Mr. Waldrop’s classroom would have received. Although Title IX does not explicitly mention sexual harassment, if such conduct is perpetuated against a student because of her sex, and such harassment prevents that student from receiving an educational experience that is equal to that of her male classmates, such behavior would logically fall under Title IX’s scope. The controversy over Title IX’s jurisdiction tends not to focus on whether such behavior should be prohibited under Title IX, but whether a school district (rather than the individual perpetrator) is responsible and has liability under Title IX when sexual harassment of a student by a

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teacher occurs. A related question is whether awarding monetary damages to a complainant helps to re-establish the equality in education for the student. On the Title IX charge, the Supreme Court found that schools could be held responsible when a teacher in an authoritative position sexually harasses students, but only in specific cases. The court ruled that schools could be held responsible “for teacher-student sexual harassment in an implied private action under Title IX” but only if the school district “has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.”20 In other words, the answer to the above questions is that had the school been aware of the conduct and did nothing they would be financially liable for Mr. Waldrop’s actions. Theoretically, if monetary damages somehow reestablish the equality that a plaintiff failed to receive, they could be allowable. Marcia D. Greenberger, co-president of the National Women’s Law Center at the time, saw the decision as a defeat. The court did not award Ms. Gebser monetary damages from the school district because they ruled that the school could not have known about the behavior. The Lago Vista School District was found not responsible because Gebser never reported the sexual conduct. For women’s rights activists like Greenberger, Justice O’Connor’s standard of “deliberate indifference” would “make the job of eliminating sexual harassment in schools far more difficult.”21 Justice Stevens’ dissent similarly argues that the decision fails to “induce school boards to adopt and enforce practices that will minimize the danger that vulnerable students will be exposed to such odious behavior.”22 In the view of Stevens, Justice Ginsberg (who also signed onto the dissent), and Greenberger, damages should have been awarded regardless of the actual knowledge of the school board.23 Ms. Gebser was not protected from sexual harassment by a school employee. Monetary damages even when the school didn’t know of the banned conduct could provide a powerful incentive to induce schools to enact proactive and preventive measures against such behavior in the future. Greenberger, Stevens, and Ginsberg would have preferred Gebser to be a stark warning to all school districts to be aware of any misconduct and act preemptively to prevent the sexual harassment of students. Ultimately, the combined decisions of Franklin v. Gwinnett School District (1992) and Gebser v. Lago Vista Independent School District (1998) expanded the meaning of sexual discrimination under Title IX to include various forms of sexual harassment by teachers or staff perpetrated upon students, and expanded the remedies to include monetary damages from the school or school district when such behavior occurs and the school behaves in a delinquent manner.24

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How Sexual Harassment Was Conceived as a Form of Sex Discrimination The conception of sexual harassment as an example of discrimination based upon sex did not exist at the time of Title IX’s adoption, but has been incorporated through the adoption of a theory promoted by legal scholar Catharine MacKinnon. The term “sexual harassment” was created in 1975 during a consciousness-raising session at Cornell University to help Mechelle Vinson articulate her grievances against the intimidating and subordinating behavior of her co-worker at the Meritor Savings Bank. Four years later, a young legal scholar named Catharine MacKinnon propelled the term into America’s legal vernacular, and ultimately into the jurisdiction of Titles VII and IX, respectively, with the publication of her 1979 treatise Sexual Harassment of Working Women. MacKinnon argues that sexual harassment happens to women at work “because of their group characteristic, that is, sex.” She explains that women were expected to conform to society’s (i.e., men’s) notion of the female gender by submitting to sexual harassment. Sexual harassment is perpetrated by males who possess a privileged power status in order to ensure women’s subordinated status in society. In defining sexual harassment as an act perpetuated upon women because of membership in the female gender, MacKinnon argues that these acts constitute an unjust denial of a woman’s civil right to participate in work (under Title VII) or educational programs and activities (under Title IX). This argument is in line with the feminist theory called “dominance theory,” which perceives the social framework as one in which “men, as a group, still [run] the world, and women, as a group, [are] still second-class citizens.” The net effect of all written laws, because they are devised by men to perpetuate women’s subordinated status, is a disparate impact on females. According to Mackinnon, incorporating this definition of sexual harassment as a civil rights violation into the legal system enables the creation of remedial measures and affirmative actions to reconcile a woman’s situation as a member of a subordinated group.

Davis v. Monroe Co. Board of Education (1999) Though Ms. Gebser was unable to recover damages herself, less than a year later, the ruling enabled LaShonda Davis to do so. The case, Davis v. Monroe County School Board, filed by LaShonda’s mother, opened a new area of school liability under Title IX to include sexual harassment of one student by another student. The parents asserted that LaShonda, a fifth-grade student at Hubbard Elementary in the Monroe County Public School System had been a victim of repeated sexual harassment by a

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classmate, “G.F.,” who repeatedly made vulgar statements, propositioned her, and attempted to touch her breasts and genitals. This behavior continued for several months. LaShonda repeatedly reported each incident to her mom and her teacher, and allegedly some of the incidents occurred in front of a teacher. Because the school had been repeatedly informed of G.F.’s harassing conduct, the Supreme Court found school district behaved in a “deliberately indifferent” manner to LaShonda’s complaints.25 In other words, the school knew of the harassment and did nothing about it. Supporters see the decision as a “warning that [schools] must protect students from their peers.”26 Greenberger applauded the court for giving “life to the promise of Title IX, that sex discrimination cannot be chalked off and ignored.”27 However, Justice O’Conner added what some saw as a strict standard to limit frivolous lawsuits against schools for minor cases of student misconduct or adolescent teasing. To be actionable for monetary damages, the harassment has to be so “severe, pervasive, and objectively offensive that it may inhibit the recipient’s ability to participate in school programs and activities.”28 Davis represented the most significant transformation of Title IX at the time, as it imposed liability on educational institutions for actions of sexual harassment or assault by non-employees and non-agents of the school. This finding goes beyond the Gebser rule. A school district can only act through their agents or employees, so it understandably could be held liable for the acts and omissions of their agents and employees when the Table 3.1 Supreme Court Decisions that Impact Title IX

Cannon v. University of Chicago (1979)

Found an implied right of action in Title IX.

Franklin v. Gwinnett School District (1992)

Decided that a plaintiff in a Title IX case can be awarded monetary damages if the school is found liable. Also determined that a school district may be held liable in cases of known sexual harassment of a student by a teacher. Damages were not awarded.

Gebser v. Lago Vista Independent School District (1998)

Held that a school district may be liable in cases of known sexual harassment of a student by a teacher if the school responded in a deliberately indifferent manner. Damages were not awarded.

Davis v. Monroe County School Board of Education (1999)

Opened a new area of school liability in cases of student-on-student sexual harassment. Damages were awarded.

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school district knows of the acts or omissions and does nothing. Conversely, Davis holds schools responsible for the behavior of students, who are not agents or employees of the school. Now, schools must monitor the private relations of students and create preventive and punitive policies that regulate the conduct of students on and off campus. While Justice O’Connor provides what she believes is a liability standard that is high enough to prevent frivolous lawsuits, she also inadvertently predicts the future direction of Title IX when she warns that “damages are not available for simple acts of teasing and name-calling among schoolchildren,” or for any comment that happens to make a distinction based upon sex.29 Justice Kennedy, in his dissenting opinion, disagrees. He argues that Title IX’s text does not include student misconduct as a form of sex discrimination, and warns that this expansion would inevitably lead to frivolous lawsuits. Moreover, Title IX’s legal precedent does not suggest that schools are responsible for the acts perpetrated by students on students—non-agents and non-employees over whom a school has limited authority. Nothing in Title IX suggests that Congress even contemplated this question, much less answered it in the affirmative and in unambiguous terms. . . . In reality, there is no established body of federal or state law on which courts may draw in defining the student conduct that qualifies as Title IX gender discrimination. Analogies to Title VII hostile environment harassment, precedents are inapposite because schools are not workplaces and children are not adults. Analogies to Title IX teacher sexual harassments of students are similarly flawed. A teacher’s sexual overtures towards a student are always inappropriate. A teenager’s romantic overtures to a classmate, even when persistent and unwelcome, are an inescapable part of adolescence.30

Kennedy warns that defining peer misconduct as liable under Title IX will “breed a climate of fear” in which educators feel pressured to “label even the most innocuous of child conduct sexual harassment” for fear that they might otherwise lose federal funding.31 The administrative oversight of students’ interpersonal skills, or lack thereof, may ultimately prevent students from maturing, growing, and learning how to associate with their peers. In response to Gebser and Davis, school boards across the country began issuing new or amending existing sexual harassment policies to include statements regarding faculty-student and peer conduct. Together

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Cannon, Franklin, Gebser, and Davis allow private individuals to recover monetary damages for overt sexual harassment of students by employees or students. The decisions in Cannon and Franklin are transformations of Title IX, enabled by SCOTUS, in that they add additional remedies by which students may enforce Title IX. Gebser is best characterized as interpretive rather than transformative of Title IX, in that it simply applies the precedents of Cannon and Franklin, and clarifies that sexual harassment by a responsible employee may prevent an individual student from receiving equal access to education. Davis, as we will see in Chapter 4, is transformative in holding school districts responsible for the sexual choices of students in addition to employees.

EXPANSION OF TITLE IX’S LIABILITY IN THE 1997 SEXUAL HARASSMENT GUIDANCE The second part of this transformation involves the Office for Civil Rights under Assistant Secretary Norma Cantú significantly altering the meaning of “sex discrimination” under Title IX with the publication of the 1997 Sexual Harassment Guidance.32 Appointed by President Clinton, Cantú utilized guidance documents to expand the meaning of sexual harassment under Title IX, to expand schools’ responsibilities under Title IX, and to warn schools that a single violation could result in an investigation of the entire school district. Cantú posted a public notice and invited comments from interested parties before publishing the document in the Federal Register, but the final document expanded the definition of actionable sexual harassment under Title IX beyond any Supreme Court rulings at the time.

Definition of Sexual Harassment under Title IX The 1997 Guidance defines two forms of sexual harassment. The first is a “quid pro quo,” in which, for example, a student is asked to exchange sexual conduct for a grade or a space in a class. A second type, “hostile environment” harassment, occurs when persistent and unwanted sexual advances impede a student’s ability to participate in an educational program or activity.33 Quid pro quo would be a clear-cut violation of Title IX because it treats that student unequally with respect to other students on the basis of sex. The latter type, hostile environment sexual harassment, is a much broader concept that encompasses innumerable behaviors that may be perceived in a variety of ways by the recipient. Hostile environment harassment includes “unwanted sexual advances” such as pinching, staring,

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kissing, or sexual comments from superiors. “Sexually harassing conduct” includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature . . . that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.”34 To be clear, according to the OCR, a school district can be held liable for monetary damages if it is aware that a person in authority has said or done anything that a student feels is unwelcome. Prior to its publication in the Federal Register, reviewers of the guidelines expressed concern that the broad definition of sexual harassment might impede academic freedom of the freedom of speech on campus.35 The “unwanted” aspect of hostile environment harassment is in the eye of the recipient, since only the victim/survivor knows when he or she feels harassed or perceives that the environment has become hostile. Commentators worried that banning unwanted verbal conduct dealing with sex would limit what a teacher or professor might be able to say in class in a way that could damage his or her ability to teach sensitive material. Moreover, it might be challenging or impossible for an instructor preemptively to know which words or actions might make each and every student feel uncomfortable. The OCR appropriates the above definitions neither from Title IX court decisions, nor legal precedents in Title VI cases, the law upon which Title IX was modeled. Instead, Cantú appears to model the 1997 Sexual Harassment Guidance after Title VII litigation and guidelines offered by the Equal Employment Opportunity Commission (EEOC), the government agency tasked with enforcing workplace nondiscrimination under Title VII.36 Those documents are derived from the work of Catharine Mackinnon, whose book Sexual Harassment of Working Women helped incorporate terms such as “hostile environment,” “quid pro quo harassment” and “unwelcomeness” into Title VII employment law cases.

Influences on Pending Supreme Court Decisions Cantú’s guidance document adds peer-on-peer sexual harassment as actionable under Title IX, and extends the liability of educational institutions when such behavior occurs, despite the fact that the district courts at that time had issued conflicting and unresolved decisions. While the Supreme Court was contemplating taking the case Davis v. Monroe County37 and while Gebser was being decided, Cantú issued the 1997 Guidance

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Document that directly answered THIRD PARTY VS. AGENT the legal question of both cases. OF THE SCHOOL The text of the 1997 Guidance makes Cantú’s objective According to the 1997 Sexual Harassment clear: “One beneficial result of Guidance document, actionable sexual the Guidance will be to provide harassment under Title IX may be courts with ready access to the perpetrated by anyone—a teacher, standards used by the agency that employee, student, or other third party. has been given the authority by This means that a college, university, law to inter-pret and enforce Title primary school, or entire school district IX. Courts generally benefit from may be held monetarily liable for the and defer to the expertise of an sexual misconduct that takes place on or 38 agency with that authority.” She off campus of any individual who is not hoped that her agency’s “expertan employee or agent of a school. ise” would assist the Supreme Court in making its decisions. The 1997 Sexual Harassment Guidance moved from interpreting Title IX to creating new policy by stressing that the perpetrators of actionable sexual harassment may include students or other “adults who are not employees or agents of the school.”39 In other words, the standards set for holding schools accountable for the behavior of their employees, including the possibility of being sued for large sums of money in the case of sexual harassment, were now extended to the behavior of non-employees and students. The addition of these groups went well beyond anything established by Congress or the Supreme Court at the time. Further, as is typical when the Supreme Court is reviewing an agency’s interpretation of its own doctrine, the Department of Education, along with the U.S. Solicitor General Seth Waxman and the Department of Justice, issued an Amicus brief to support LaShonda Davis’ case. And, as anticipated, Davis affirmed “the Department’s interpretation that studenton-student (peer) harassment is covered by Title IX.”40

Gender-Based Harassment Added to Title IX Jurisdiction Finally, the 1997 document also expands Title IX jurisdiction to protect against forms of gender-based harassment. The document reasons that incidents of sexual harassment and “non-sexual, gender-based harassment” can, in combination, create a hostile environment, which also invokes Title IX protection.41 Hostile-environment-based claims may involve a number of actions, including sex stereotyping and taunting about sexual

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orientation. Again, following Title VII litigation, gender stereotyping is understood to be a form of discrimination based upon sex because such stereotyping treats students differently based upon the expectations of his or her perceived sex, or perceived sexual orientation. Neither document explicitly asserts Title IX jurisdiction over “gender-based discrimination,” however both documents imply that a possible future clarification would be written with respect to gender-based harassment and discrimination.42 Such a clarification has yet to be written; however, the OCR’s 2016 DCL (which has since been rescinded) includes a ban against gender identity discrimination.43

CONTROVERSIAL TRANSFORMATIONS To recap, a number of controversies result from the changes implemented by the Supreme Court and the Office for Civil Rights during this stage of Title IX’s development. First, we have seen the controversy involving the Supreme Court’s implying a private right of action and monetary damages in Title IX suits. Critics of these decisions contend that these decisions are based on a false legal precedent, Title VII, instead of Title VI, upon which Title IX was based. Advocates applaud the creation of these rights as effective enforcement mechanisms to induce schools to protect students against sexual harassment by school employees. Next, critics question the extension of Title IX’s jurisdiction and a school’s potential liability for peer-on-peer sexual misconduct. OCR policy interpretations and the SCOTUS rulings influenced by them have adopted a novel approach to women’s rights in conceiving sexual harassment and assault, not as a criminal act, but as a civil rights violation under Title IX. While no one “questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher’s conduct is reprehensible and undermines the basic purposes of the educational system,”44 critics contend that the OCR’s inclusion of peer sexual misconduct violates Title IX’s statutory meaning. This controversy, along with how this change facilitated future controversies relating to sexual assault on campus, forms the content of the next chapter. Advocacy groups such as the National Women’s Law Center and the National Organization for Women advocate that bureaucratic agencies such as the Office for Civil Rights stretch Title IX to include as many expansions to women’s civil rights as possible.45 Further, the courts have recognized the OCR’s authority to interpret Title IX and to use punitive force to defend those interpretations. Agencies such as the OCR are the

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only tools women’s rights advocates have to ensure that Title IX’s purpose to preemptively prevent discriminatory behavior is fulfilled. Further, this should be conceived as the place to expand women’s rights. The lawmaking process is painstakingly slow and continually ends in women’s failure to pass broad civil rights legislation, as evidenced by the continued failure to pass an Equal Rights Amendment to the U.S. Constitution. Critics see a deeper controversy relating to the OCR’s active role adopted during the 1990s to alter Title IX policy through sub-regulatory guidance. The OCR has expanded the positive responsibilities of schools, influenced open Supreme Court cases, and adopted an active enforcement paradigm to ensure schools adopt OCR policies.46 School districts, colleges, universities, and the Supreme Court have tended to defer to these policy interpretations even when they constitute significant policy changes, that is, new laws.47 Beyond the question of whether Title IX has jurisdiction over sexual harassment, the legitimacy of the authority assumed by the OCR has been challenged. A bipartisan task force has suggested that the agency has overstepped their delegated authority to interpret Title IX and has, in fact, re-written the law by utilizing its own guidance documents as precedents for newer interpretations of their own regulations.48

NOTES 1

2

3 4 5 6 7 8 9 10

Norma V. Cantú, Assistant Secretary for Civil Rights, “Sexual Harassment Guidance.” Office for Civil Rights, U.S. Department of Education. Office of the Assistant Secretary (March 13, 1997). Also found at Federal Register 62, No. 49 (March 13, 1997): 12034–12051. The actual cases are Cannon v. University of Chicago, 441 U.S. 677 (1979); Franklin v. Gwinnett School District, 503 U.S. 60 (1992); and Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998); and Davis v. Monroe County School Board of Education, 526 U.S. 629 (1999). In the interests of both brevity and clarity, the vignettes do not reflect the actual facts of the cases. Public Law No. 92–318, 86 Stat. 235 ( June 23, 1972), codified at 20 U.S.C. § 1682. Cannon, 441 U.S. 677 (1979). Ibid., 706–707. Ibid., 677. Department of Justice, Title IX Legal Manual, January 11, 2001, www.justice.gov/ sites/default/files/crt/legacy/2010/12/14/ixlegal.pdf. Gebser, 524 U.S. 274 (1998), 292–293. Alexander v. Sandoval, 532 U.S. 275 (2001), 293. Ruth Marcus, “Harassment Damages Approved,” Washington Post, February 27, 1992.

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11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

26 27 28 29 30 31 32

33 34 35 36

37 38 39 40

Franklin, 503 U.S. 60 (1992). Alexander v. Yale, 631 F. 2d 178 (2d Cir. 1980). Tyler Kingkade, “How a Title IX Harassment Case at Yale in 1980 Set the Stage for Today’s Sexual Assault Activism,” The Huffington Post, June 10, 2014. Ruth Marcus, “Harassment Damages Approved,” Washington Post, February 27, 1992. Nanci Chi Cantalupo, “The Civil Rights Approach to Campus Sexual Violence,” Regent Law Review 28 (2016): 188. Ibid. Linda Greenhouse, “School Districts Are Given a Shield in Sex Harassment,” The New York Times, June 23, 1998. Gebser, 524 U.S. 274 (1998), 274. Ibid., 299. Ibid., 274. Greenhouse, “Shield in Sex Harassment.” Gebser. 524 U.S. 274 (1998) 300. Ibid., 298. Franklin, 503 U.S. 60 (1992); Gebser, 524 U.S. 274 (1998). Davis, 526 U.S. (1999), 629. In order to recover for peer sexual harassment, a plaintiff must establish the following: (1) an act of harassment; (2) involving students of the educational entity; (3) occurring in a context where the educational entity exercises significant control over the harasser; (4) that is known to the educational entity; and (5) the educational entity responds to the harassment with deliberate indifference. Unless all elements are met, the educational entity cannot be liable. Joan Biskupic, “Schools Liable for Harassment,” Washington Post, May 25, 1999. Ibid. Davis, 526 U.S. (1999), 629. Ibid., 676. Ibid., 675. Ibid., 681. 1997 Sexual Harassment Guidance; Norma V. Cantu , Assistant Secretary for Civil Rights, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties,” U.S. Department of Education, Office for Civil Rights, ( January 19, 2001). Also found at 66 Fed. Reg. 13 ( January 19, 2001): 5512. Subsequent references to the latter document will be cited as the 2001 Revised Harassment Guidance. 1997 Sexual Harassment Guidance, 12038. Ibid., 12038–12039. Ibid., 12035–12036. R. Gaull Silberman, Vice Chairman U.S. Equal Employment Opportunity Commission, “Policy Guidance on Current Issues of Sexual Harassment,” Notice no. N-915-050, (1990). Davis, 631 F. 2d 178 (2d Cir. 1980). 1997 Sexual Harassment Guidance, 12036. Ibid., 12036. Davis, 526 U.S. 629 (1999); 2001 Revised Sexual Harassment Guidance. This affirmation enabled the OCR to cite Davis (which utilizes OCR’s 1997 Guidance

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41 42

43

44 45 46

47 48

a precedent for its ruling) as precedent for their 2001 Revised Sexual Harassment Guidance. 1997 Sexual Harassment Guidance, 12039. However, Assistant Secretary for Civil Rights Catherine Lhamon’s “Dear Colleague Letter on Bullying and Harassment,” U.S. Department of Education, Office for Civil Rights (October 26, 2010) makes clear that harassment based upon sexual orientation may be covered under Title IX and her 2016 “Dear Colleague Letter: Transgender Students” (May 16, 2016) includes sexual identity discrimination as a form of gender-based discrimination. Catherine E. Lhamon, Assistant Secretary of Education, and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, “Dear Colleague Letter: Transgender Students,” United States Department of Education, Office for Civil Rights and Department of Justice, (May 13, 2016). President Trump rescinded the transgender guidance in February of 2017. Gebser, 524 U.S. 274 (1998), 292. David Margolic, “Women Turn to Courts to Gain Rights,” New York Times, June 29, 1982. Task Force on Federal Regulation of Higher Education, “Recalibrating Regulation for Colleges and Universities,” Task Force on Federal Regulation of Higher Education, February 12, 2015; American Association of University Professors, “The History, Uses, and Abuses of Title IX,” Bulletin, June 2016, 94–95. See Auer v. Robbins, 519, U.S. 452 (1997). G.G. v. Gloucester County. School Board, No. 15–2056, (4th Circ. Apr. 19, 2016).

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CHAPTER 4

Title IX’s Transformation of Campus Sexual Assault Trials The 2011 Dear Colleague Letter

O

n April 4, 2011, the Office for Civil Rights ushered in the next major transformation of Title IX when it issued a Dear Colleague Letter (DCL) in response to the problem of campus sexual assault.1 The letter brought needed attention to the failure by numerous institutions to respond appropriately to sexual assault,2 but also significant controversy that has impeded the reauthorization of the Higher Education Act.3 By issuing the letter, Assistant Secretary for Civil Rights Russlynn Ali singlehandedly created and imposed “new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct” without congressional oversight, without legal precedent, and without input from college administrators.4 The new policy transformed Title IX into a mandate for a parallel justice system to adjudicate sexual misconduct on college campuses. At the time it was promulgated, the letter’s list of required procedures in cases of peer sexual misconduct signified the single most expansive transformation of Title IX. Though Education Secretary Betsy DeVos ultimately rescinded the letter, the policy recommendations have had widespread impact with some schools planning to continue the procedures set forth in the letter.5 This chapter discusses the significance of the 2011 Dear Colleague Letter’s requirement of a parallel campus justice system for student disciplinary proceedings involving sexual misconduct between students. Before addressing the letter, the unique nature of peer sexual assault on college campuses is presented to lay the foundation for the requirements

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that follow. The next section describes the procedural guidelines mandated by the letter to demonstrate how they go beyond legal precedent to create new Title IX policy. Finally, the constitutional questions raised by those required procedures are discussed.

THE UNIQUE PROBLEM OF CAMPUS SEXUAL ASSAULT Traditionally, colleges and universities had operated under the in loco parentis doctrine, which meant that colleges assumed some of the responsibilities of a parent by attempting to develop the moral character of students. A number of Supreme Court decisions weakened this doctrine at the university level, thus limiting the authority of college administrators to shape the behavior of students.6 As a result, colleges and universities have tolerated student-life culture that emphasizes heavy drinking and casual sex. Students are generally treated as adult consumers who are “free to engage in various activities at their own discretion.”7 Students exercise tremendous freedom with respect to their sexual choices as expressions of their civil liberties. Such an environment does not prevent sexual assault and indirectly encourages it, as substance abuse and prior consensual sexual activity are major risk factors for sexual assault.8 University of California President and former Cabinet member Janet Napolitano has noted that the increased awareness of sexual assault on campuses highlights the need for public instiIN LOCO PARENTIS tutions to improve significantly their procedures for responding to The term in loco parentis is derived from this problem.9 the Latin phrase meaning “in the place Prior to 2011, when students of a parent.” This legal doctrine refers to had come forward with allegations the responsibility of primary and of sexual assault, campus officials secondary schools, as well as colleges often failed to provide adequate and universities, to behave as a parent psychological counseling, grant by monitoring behavior in the best appropriate accommodations, such interests of students. Since the 1960s, as changes in class schedule or the doctrine has no longer exerted force housing, or prevent retaliation by at institutions of higher learning due to a the alleged perpetrator’s supportchanging culture as well as Supreme ers.10 If a victim/survivor wished Court decisions that undermined the to pursue justice against an alleged authority of colleges and universities to attacker, the university often simshape student behavior. ply referred them to the criminal

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justice system, where the police and prosecutors often declined to pursue ambiguous cases.11 If the school initiated student disciplinary proceedings, it was often a horrific experience for the victim/survivor.12 Sadly, at some institutions, the alleged perpetrator’s status as an athlete or child of a wealthy donor apparently influenced the decision to pursue discipline or the sanction involved.13 Off campus, if a rape victim/survivor turned to the criminal justice system, the difficulty of prosecuting sexual assault under the required due process standards made conviction difficult and unlikely.14 For this reason, many advocates see the criminal justice system as unresponsiveand traumatic for victims, or ineffective altogether.15 The low conviction rates of the criminal justice system, combined with the inadequate response to sexual assault occurring on college campuses across the country led President Barack Obama to make combating sexual assault a centerpiece of his presidency. He exhorted “every agency in the Federal government to be part of the solution to ending violence against women.”16 In response, Assistant Secretary of Education for Civil Rights Russlynn Ali issued the 2011 DCL to replace “universities’ botched responses to sexual harassment and sexual violence” with appropriate grievance procedures, which included new measures to deal with sexual assault allegations.17 In effect, Ali’s new guidelines moved rape trials to college campuses and out of the criminal justice system. Without the due process constraints of criminal proceedings, a campus trial would move more promptly to protect the victim/survivor and punish the alleged rapist. Nancy Chi Cantalupo, a Research Fellow with the Victim Rights Law Center at Georgetown University, described Ali’s new approach to use Title IX as a means of adjudicating campus sexual assault as “the civil rights approach to campus sexual assault” because it focuses on the needs of the victims, rather than the due process requirements of the accused.18 However, the often-ambiguous nature of peer sexual encounters led to a firestorm of controversy regarding whether peer sexual assault is best handled by a campus panel or a criminal court. Sexual assault differs from all other campus conduct issues, such as lying or drinking alcohol in a dry residence hall, because rape is a crime. Consider another crime— assault with a deadly weapon. If Jonny shoots Suzie, the action would not be considered a campus conduct violation with student life officials or students determining the appropriate course of action. Instead, the campus would call the police to deal with Jonny. If Jonny beats Suzie, the police would similarly be called. In contrast, if Jonny and Suzie have a sexual encounter and Suzie reports it after the fact as rape, the police could be called to initiate a criminal proceeding, as with the shooting. However, the rape case would be far more difficult to prove. Moreover,

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in cases of alleged rape, the nature of the victim’s trauma must be alleviated regardless of whether a finding of guilt emerges. Misinformation creates a culture that mistrusts rape victims, the due process rights of the accused must be considered, and, sadly, the actual events of an alleged peer rape may simply be impossible to determine without witnesses. To understand the impact of the Dear Colleague Letter, it is helpful to examine several scenarios: (1) An Inadequate Protection of the Victim/ Survivor; (2) Misinformation as an Obstacle to Rape Investigations; and (3) The Inherent Ambiguity of Private Sexual Encounters.

Prospective One: How to Protect the Victim/Survivor? Kathy was a student at a state university.19 After consuming several drinks with friends, she encountered two students—both members of the university’s football team—in a room in Kathy’s residence hall. One of the students had publicly stated that “I like to get girls drunk and f*** them.” After half an hour of small talk, this student asked her to have sexual intercourse. When Kathy politely but firmly said no and rose to leave the room, this student of grabbed her, pinned her down, disrobed her, and raped her. The second student then raped her. The first student then raped her again. At the conclusion of the rapes, the first student said, “You better not have any f***ing diseases.” Initially, Kathy did not report the incident to law enforcement or university officials, but in the weeks following the incident, Kathy became depressed, stopped attending classes, and attempted to commit suicide. A university psychiatrist treated her with anti-depressant medication, but no university employee attempted any more than a cursory inquiry into the source of her mental distress. Four months after the incident, Kathy recognized the two men on campus as the students who had raped her. Two months later—a total of six months after the incident—Kathy filed a complaint with the university against the players. The local district attorney declined to prosecute in criminal court. During a student disciplinary hearing, the first student admitted to having sex with Kathy, but claimed it was consensual, while the second student denied having any sexual contact. A student disciplinary panel found the first player guilty, and recommended two semesters of suspension, but the finding was reversed on appeal. Upon rehearing, the first player was found not guilty of sexual assault, but was found guilty of abusive language, a much lesser charge. The first student received a minor penalty but remained in school with his full football scholarship. Many people, including Kathy, believed that the male students’ status as football players made the university reluctant to discipline them.

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Although the local prosecutor chose not to pursue criminal charges, the 2011 DCL provided Kathy with another avenue—Title IX—by which she might receive justice. To those who see sexual assault as a civil rights matter, Kathy’s trauma made her feel forced to leave school. Her civil rights under Title IX were violated because the trauma and lack of response prevented her from enjoying an equal opportunity to education. Kathy’s whole future was upended by that fateful night. In response, the 2011 Dear Colleague Letter added a number of protections to victim/survivors.

Prospective Two: Misinformation A vignette involving the University of Virginia and a tale of ritualistic rape, rape culture, and an indifferent administration explains why assault victims/survivors are often viewed with skepticism. “You can trace UVA’s cycle of sexual violence and institutional indifference back at least 30 years,” a trail that leads back to its fraternities, according to Sabrina Rubin Erdely.20 “Jackie” was a bright-eyed, naïve freshman at the University of Virginia in 2012, until she attended the Phi Kappa Psi party in which a brutal, three-hour long ritualized gang rape was perpetuated upon her.21 Afterwards, discouraged by friends to report the incident for fear of social suicide, she began to withdraw and descended into depression. So began the fictional account of university malfeasance. When the story hit the press, the reaction was a combination of disbelief, discomfort, fear, and outrage. The only minor consolation was the fact that the dirty laundry of campus sexual violence would finally be aired and the rape culture of campus fraternities would be punished. Erdely detailed Jackie’s vicious attack, reluctance to report, and self-doubt leading her to leave the university. Jackie stood as the voice of the silenced survivor who failed to receive justice. But, as Shakespeare has taught, “The truth will out.” And it did. The story began to unravel as fact-checking operations by numerous media outlets, such as The Washington Post, uncovered facts that led the police and Rolling Stone Magazine to repudiate “Jackie’s” alleged sexual assault.22 The story was fabricated by its author, who had been searching for a feature story on sexual assault, but failed to vet her sources. Rolling Stone retracted the article in its entirety in 2015 and settled a libel lawsuit with UVA in late 2016.23 Far from putting the nail in the coffin of campus sexual violence, the false report may have discouraged countless sexual assault victim/ survivors from reporting rapes, and increased the likelihood that they would be viewed with skepticism when they did so. “Jackie” was clearly

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traumatized by someone or something, but it was not a gang rape ROLLING STONE ’S HOAX at a UVA fraternity party. HowRAPE STORY AND ITS ever, her misinformation has CONSEQUENCES exacerbated the problem—some fear that women manufacture alleThe infamous story of “Jackie’s” gang gations of rape to cloak their regret rape at a UVA fraternity party was or shame after engaging in sexual demonstrated to be false by journalists activity, or their failure to recall working for The Washington Post and events when under the influence others. UVA Dean Nicole Eramo, who was of drugs or alcohol. portrayed as an indifferent and ineffective The Dear Colleague Letter leader in responding to campus sexual required universities to investigate assaults, was defamed by the false story claims such as Jackie’s and provide and successfully sued the magazine for a her with resources, even if no settlement of $3 million dollars. However, criminal case was filed. In this case, numerous future victim/survivors may the letter forced UVA to act also have become collateral damage, as swiftly in light of the severity of the story renewed skepticism surrounding rape allegations. the claims. Before the story had been verified, UVA’s president suspended its fraternities for two months; their board issued a “zerotolerance” vote against sexual assault; and the university instituted reforms to address alcohol abuse within its “entrenched fraternity” culture.24 Were Jackie’s alleged gang rape real, such prompt responses might have been welcomed. Unfortunately, this case demonstrates the damage done to the alleged perpetrators and to the university community when claims are false. Lacking the investigatory tools employed by the criminal justice system, UVA was pressured to take prompt steps outlined by the 2011 letter before the facts of the case emerged. It only took one false allegation to renew skepticism regarding date rape allegations. Such fabrications have permanent consequences: the reputations of the brothers of Phi Kappa Psi, the Dean of UVA, and the university itself were irreparably sullied. Of course, just as an alleged victim/survivor can level a false accusation, a perpetrator can make fabrications, as Kathy’s case above reveals. Any system of civil or criminal trial must properly vet all witnesses to sift the truth from a complex incident. Moving quickly for the shock value of the story or the prompt justice of the survivor/victim can leave collateral damage. At the very least, this cautionary tale reminds one of the need to examine fully a case of sexual assault before making a judgment.

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Prospective Three: Ambiguity Some cases are so ambiguous that the truth of the student encounter may never be determined. John met Susan on the first day of freshman orientation at a public university and they immediately made a connection. Susan was from a small town and her family was deeply religious. As their relationship developed, she told John that she did not want to have sexual intercourse until marriage, but she was willing to engage in fondling and to give and receive oral sex. John respected those boundaries; however, after consuming several drinks at a party in early October, Susan had sexual intercourse with John before falling asleep in his room. In the following weeks, John and Susan regularly had sexual intercourse and exchanged text messages about these encounters.25 Early in the Spring Semester, Susan broke up with John and filed a student disciplinary complaint alleging that John raped her the first time they had sexual intercourse. Susan conceded that subsequent sexual encounters were consensual. The university prohibited John from having any contact with Susan and launched a full-scale investigation. Because the incident occurred in the privacy of John’s bedroom, the only witnesses were John and Susan. The university’s Title IX investigator—who had been trained to investigate sexual assaults by a rape victim’s advocacy group—interviewed both John and Susan. In her final report, the investigator stated, “John is emphatic that the sex was consensual, Susan insists that it was rape. In my experience, the victim’s version is correct at least ninety percent of the time.” Based on this report, the university charged John with sexual assault. John’s disciplinary hearing took place before three people—a professor of gender studies, the director of residence life, and the director the LGBTQ* center. Although John was permitted to have an attorney, his attorney is forbidden to speak. At most, he can pass notes and whisper in John’s ear, but the panel ultimately decided that the attorney’s constant whispering and note passing is distracting and orders him to stop. John was not permitted to cross-examine Susan, but could submit proposed questions to the panel. Of the ten questions he submitted, the panel asked two. Significantly, the panel refused to ask any questions related to the text messages between the two or their subsequent sexual conduct. By a vote of 2–1, the panel found John guilty of sexual assault and expelled him. The university’s policy does not allow an appeal. John sued the university claiming a violation of due process. The university responded that Title IX requires it to do exactly what it did. As we will see below, the guidelines the university had in place may be consistent with the OCR’s 2011 letter, but may also be inconsistent with

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the due process rights of the accused. John may now take the case to court and may win the appeal as other similarly situated males have successfully done.26 No matter what the result, one of the two parties will feel disenfranchised by the process. This story brings a number of issues to light. First, it may simply be impossible to determine the truth of the matter—what actually happened between the sheets. The emotions of a break up combined with the passage of time may also cloud both individuals’ judgment and recollection. Passion, affection, confusion, disagreement, emotions, and regret are all elements of peer sexual encounters, any of which may cloud the truth of the events. Perhaps the core difficulty underlying peer sexual assault cases is this “he-said-she-said” problem. The combination of immaturity, naiveté, and sexual desire can often lead to “romantic overtures,” that while “persistent and unwelcome, are an inescapable part of adolescence.”27 A socially awkward youth may continually proposition a young classmate to go on a date. It may be difficult to say whether a student’s repeated rejection of romantic overtures imply sexual harassment has occurred. Maturation involves the courage to make a move, or a misstep, to learn and move on, as well as the judgment to determine appropriateness and attain proper consent. At the same time, predators exist and are all-too-willing to take advantage of naïve young coeds. Stir alcohol or drugs into the mix and even greater ambiguities emerge. It may be impossible to know what happened in the bedroom that night between John and Susan. While the letter requires all schools to proceed with an investigation and to take interim measures to alleviate Susan’s stress, such a case introduces the question of whether such a campus hearing or a criminal trial would more effectively tease out the truth in such matters.

NEW STANDARDS OF THE 2011 DEAR COLLEAGUE LETTER The controversial standards for adjudicating claims of sexual assault resulted from Assistant Secretary Russlynn Ali’s 2011 Dear Colleague Letter and subsequent 2014 “Questions and Answers on Sexual Violence.”28 After President Obama declared his administration’s intention to reduce the number of sexual assaults on college campuses across the country, Ali promptly penned the letter without the typical notice and comment opportunity for school administrators. Ali thus broke with protocol under the Administrative Procedures Act by deciding not to issue a draft of the 2011 letter or the 2014 supplement to college presidents or to Congress.29

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Before and After the Letter Before the 2011 OCR letter, when Jill alleged that Jack raped her, the school’s student life officials would investigate and ensure that Jill received the resources she needed as a potential rape victim, regardless of whether the rape was verifiable or not. At conclusion of a typical campus conduct investigation, the student affairs folks might have determined that while Jack said the sex was consensual, Jill said it was not. The student life officials did not know what actually happened. They may have thought that Jill is a little more credible than Jack, but they did not know for certain. The typical result was that nothing would happen. This is the problem that the OCR sought to remedy in 2011. After Ali issued the 2011 letter, the school was expected to respond promptly by expelling Jack. The letter included detailed requirements of a campus proceeding, which may or may not have involved a formal hearing, and detailed the specific resources that the school was required to offer Jill. The letter removed the discretion of campus life administrators to make individual case-by-case judgments or to use common sense to draw conclusions in sexual misconduct cases. The letter ultimately transformed the student disciplinary hearing into a trial.

These documents, when combined with recent changes to other federal statutes, required universities to establish a parallel criminal justice system for sexual assaults on college campuses.30 The standards put forth by the Office for Civil Rights in 2011 intended to achieve two core goals—to minimize the victim/survivor’s stress and promptly to punish the offender after a violation has occurred. Under the letter it would not have been sufficient for an institution to prohibit sexual assault or discipline the perpetrators; institutions were required to take prompt measures to prevent sexual assault and lessen its impact on students.31 Towards this end, schools had to hire one or more Title IX coordinator(s),32 educate employees and students, and disseminate the adjudication procedures. The most controversial elements of the letter involved the mandated procedures for campus trials, the letter’s creation of new policies beyond the established legal precedents,33 and the fact that Ali issued new requirements without any oversight from Congress or interested parties.

Minimize the Stress of the Disciplinary Proceeding First, the 2011 guidelines sought to protect the victim/survivor after an alleged rape has occurred by requiring a number of resources and

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procedures be employed. While not constitutionally required, such measures are compassionate. A disciplinary proceeding is an extraordinarily stressful and traumatic event for the victim/survivor, many of whom experience posttraumatic stress, anxiety, depression, sleeping and eating disorders, and other negative emotional consequences. Individuals struggling with posttraumatic stress experience distress when recounting the event that caused the symptoms.34 At a minimum, the victim/survivor will have to recount the events of a sexual encounter that, at least in the victim’s/survivor’s view, was nonconsensual. To the extent that an educational institution can minimize the stress of the ordeal by providing counseling, schedule adjustments, or housing adjustments, it was required to do so even before a hearing. These suggestions have been relatively uncontroversial. Other requirements focused specifically on the campus trial. According to the letter, the hearing had to be prompt, the victim’s identity shielded from the campus community, if desired by the complainant, and the complainant informed during all stages of the process. One measure recommended to minimize the stress was to screen the victim/survivor separately from the alleged perpetrator during the hearing. In order to make the process as safe as possible, a school “must not require a complainant to be present at the hearing,” nor require “that the school allow

Five New Obligations Imposed by the 2011 DCL •

• •

• •

First, a school must notify parties of any delay in the investigation, and provide the reason for the delay. Similarly, if a school must delay its own inquiry because of a pending criminal investigation or proceeding, the school should also continue to update the parties on the status of the criminal investigation. Second, a school must provide notice of meetings at which the accuser or the accused, or both, may be present (for example, at the hearing). Third, a school must notify the parties of the outcome, specifically whether or not it found that the alleged conduct occurred as well as steps the school has taken to eliminate and prevent the hostile environment if determined to exist. Fourth, schools must notify the complainant of any information that will be disclosed, to whom it will be disclosed, and why it is to be disclosed. Fifth, schools must explain the possible interim measures that the victim/ survivor can pursue before and during an investigation, including any available resources, such as victim advocacy, housing assistance, academic support, counseling, disability services, health and mental health services, and legal assistance, and the right to report to campus or local law enforcement.

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a complainant to be present for the entire hearing,” and should “make arrangements so that the complainant and the alleged perpetrator do not have to be present in the same room at the same time.”35 In sum, the OCR does not require a formal hearing, cross-examination of the accuser, or an appeals process.36

Procedures for Determining Guilt and Punishing Sexual Misconduct Second, the letter sought to punish the perpetrators of sexual assault. The 2011 letter accomplished this by requiring the establishment of some sort of mechanism within the university, independent of the criminal justice system, which allowed the university to determine whether alleged perpetrators are guilty of sexual assault and, if so, to punish them.37 This new policy replaced the “deliberate indifference” standard of liability previously set by the Supreme Court in Davis v. Monroe County Board of Education.38 According to the Davis standard, once an institution learns of a sexual assault, it must respond in a manner that is not deliberately indifferent. Deliberate indifference to “known acts of student-on-student sexual harassment” could create liability for schools receiving federal funding.39 While the university satisfied its Title IX obligations simply by establishing such a system to try sexual assaults, the 2011 guidance required institutions implement additional procedures into their campus investigations.40 First, all institutions were required to use the preponderance of the evidence standard of proof in adjudicating student sexual misconduct, and second, as described above, they must have had to create conditions so as to reduce the stress of the investigation on the victims/survivors.41

Preponderance of the Evidence Standard of Proof The 2011 letter required universities to employ a “preponderance of the evidence” standard in campus sexual assault investigations under Title IX. The previous 2001 guidelines contained no such requirement, but permitted schools the flexibility to adopt a “common sense” approach, as there “may be more than one right way to respond” to sexual harassment claims.42 Under the 2001 standards, many state schools opted to use the “‘clear and convincing’ standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred).”43 The 2011 DCL, however, removed this flexibility by requiring schools to adopt the preponderance standard, which means that “it is more likely than not that sexual harassment or violence occurred.”44 In doing so, the 2011 guidelines created potential conflicts with the laws of many states. The

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OCR rejected both the “beyond a reasonable doubt” and the “clear and convincing” standards as “inconsistent with the standard of proof established for violations of the civil rights laws.”45 In contrast, the preponderance standard makes a conviction more easily attainable for campus investigators, which may be a motivation behind the new guidance.

OCR Enforcement

PREPONDERANCE OF THE EVIDENCE While a conviction for sexual assault in the criminal justice system requires the prosecution to prove every element of the offense beyond a reasonable doubt (99 percent certainty), the OCR’s 2011 letter required campus proceedings to use a preponderance of the evidence— it is more likely than not that a crime occurred. In between these two standards lies the clear and convincing standard, which requires the evidence to be highly and substantially more probable before a verdict of guilt can be proven.

Swift and extensive OCR enforcement of the guidelines contained in the 2011 letter converted Title IX’s reputation from a sports law into a sexual assault law, and has increased the likelihood of incidents being reported and investigated by the OCR. The period following the letter has been dubbed the “era of enforcement,” with the OCR actively investigating over 340 colleges for possible mishandling of reported sexual violence.46 Women’s rights activist Erin Buzuvis, the Women’s Sports Foundation, and the National Women’s Law Center (NWLC) commended the OCR’s focus on victims’ rights, the renewed focus on sexual assault prevention, and the mandated preponderance of the evidence standard.47 However, a number of legal experts across the country, including the Foundation for Individual Rights in Education (FIRE), and the American Association of University Professors (AAUP), believe that the 2011 letter raised serious constitutional questions.48 Specifically, they questioned the OCR’s aggressive enforcement paradigm, the standard of evidence and hearing requirements, and the fact the “guidance acts as a de facto law, which the OCR has no authority to issue.”49

CONSTITUTIONAL QUESTIONS Protections to the Victims The vignette involving Susan’s “He-said-She-said” allegations against John illustrates the difficulties universities face as they attempt to support

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victims/survivors of sexual assault while providing due process to accused students.50 The OCR’s response went further than any American jurisdiction in simultaneously weakening both the standard of proof and the due process protections of the accused. In addition to not requiring the right to face one’s accuser, a trial, or an appeals process, the letter forbade the consideration of the victim/survivor’s sexual history with anyone other than the accused student.51 This broad rape shield law presented significant problems, since “[s]uch evidence is occasionally highly relevant, and a blanket rule would deprive the defendant in such cases of a valid defense.”52 Imagine, for example, that a video circulates around a college campus showing a man and a woman engaging in what most people would consider a degrading sex act for the woman. The woman then files a complaint with the university, claiming she was sexually assaulted. During the investigation, the woman claims she would never voluntarily consent to such a degrading act. The accused, however, locates four men willing to testify that they engaged in the exact same act with the accuser, and it was fully consensual. One of them even has his own video of the interaction. Under the OCR guidelines, the student accused of sexual assault would not be allowed to present that potentially exculpatory evidence. The DCL appeared to favor the protection of the victim/survivor under the view that a false acquittal is more dangerous than a false conviction: it is better that an innocent student be expelled than to allow a rapist to escape punishment. WHICH IS WORSE— Under the requirements of the FALSE ACQUITTAL OR 2011 letter, an educational instiFALSE CONVICTION? tution could have found individuals guilty of assault and expelled A wrongful conviction occurs when an them from school without having innocent person is found guilty of a crime afforded them the opportunity to he or she did not commit. A false face the accuser, without having acquittal is a miscarriage of justice in the permitted them to cross examine other direction—a rapist, for example, is their accuser or witnesses, withfound not guilty of a crime. American out allowing them a hearing, and jurisprudence holds false convictions to without permitting an appeals be the greatest miscarriage of justice, process. The letter’s requirement and consequently affords significant due of prompt interim measures during process protections (such as the right to an ongoing investigation meant counsel, the right to remain silent, and that the accused could be removed the assumption of innocence until proven from campus before a decision of guilty) to the individuals accused of guilt had been made.53 Finally, the criminal violations. letter required that schools permit

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the victim/survivor to appeal not-guilty campus verdicts, which may be “a form of double jeopardy.”54

Due Process of the Accused Unlike the legal traditions of other cultures, the Anglo-AmericanAustralian legal tradition requires procedural due process before government deprives an individual of life, liberty, or property. Due process prevents arbitrary governmental action, but it ultimately enables the search for truth—did the individual actually do the action for which he is accused. This system of justice resolves all doubts in favor of the accused individual. The focus is on preventing false convictions.55 As Sir William Blackstone noted, it is better for ten guilty men to go free than for an innocent man to be imprisoned.56 A student disciplinary hearing is not a criminal trial with the possibility of incarceration, so one might question whether heightened due process protections are warranted in Title IX campus investigations. The OCR largely ignores the question. While the 2001 guidance acknowledged the need to reconcile Title IX enforcement and “any federally guaranteed due process rights”57 and “additional or separate rights . . . created for employees or students by State law,”58 the 2011 letter did “not address . . . federal, state, or local laws, or an individual school’s code of conduct,”59 nor did it provide guidance regarding how to reconcile conflicts between the OCR-mandated procedures for protecting the complainant and constitutionally mandated due process protections of the accused. The 2011 letter mentioned the need for public and state schools to “provide due process to the alleged perpetrator,” but emphasized the need for prompt survivor protections. Due process concerns, for example, must not “unnecessarily delay the Title IX protections for the complainant.”60 The letter also stressed the need to take remedial steps before a determination of guilt has been made.61 To be sure, a student disciplinary hearing is not a criminal trial. Yet, since the landmark decision in Dixon v. Alabama State Board of Education,62 it has been clear the Constitution requires due process before a public university expels a student or imposes a lengthy disciplinary suspension.63 It is not enough that the university believes the student committed sexual assault; the university must prove these allegations in a proceeding that comports with due process.64 While the exact contours of due process depend upon the context, the stakes are enormously high when a student is accused of sexual assault.65 A student who is expelled for sexual assault will find it difficult to enroll at another institution. In some States, the student’s transcript will carry a scarlet letter notation that the student was

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expelled for sexual assault.66 Given the potential liability of admitting a known sex offender, it will be difficult for students to transfer to other institutions. Given the enormous stakes for accused students, due process in the sexual assault context requires (1) a strict separation of investigative, prosecutorial, adjudication, and appellate roles; (2) a hearing with adequate procedural safeguards; and (3) meaningful appellate review. Unfortunately, the 2011 letter does not provide these protections to the accused. Backlash emerged from all sides of the political spectrum in response to the letter’s lowering of the standards of evidence, enforcement by means of a sub-regulatory guidance document, and reduced due process rights of the accused, culminating in litigation against the OCR itself.67 Harvard law professors penned a rejection of Harvard’s implementation of the OCR letter,68 which was followed by an open letter issued by twenty other law professors from across the country challenging the absence of adequate due process protections.69 In an odd turn of events, males accused of sexual assault have sued their respective colleges for failing to afford them adequate due process under the OCR requirements, and some have prevailed.70

Creating New Laws In addition to these due process challenges, a deeper issue focuses on whether the new guidelines contained in the 2011 Dear Colleague Letter, had they not been rescinded, would have been legally binding. Critics claimed that (while enforced) the guidance “act[ed] as a de facto law, which the OCR has no authority to issue.”71 With the 2011 letter, the OCR used an informal guidance document to create a broad range of new policies by which schools should investigate claims of sexual assault under Title IX, and did so without soliciting advice from Congress or interested parties. The primary goal of these policies was to protect potential victim/survivors. Bipartisan leaders have questioned the legitimacy of this manner of creating new mandates, that is, by administratively creating “serious additional responsibilities [that] break new policy ground.”72 While the DCL described these new requirements merely as “guidance,” which does not carry the force of law, it simultaneously enforced the letter as if it were law.73 The Administrative Procedures Act, the law that governs what bureaucratic agencies can and cannot do in their interpretations of law, limits the discretion of the OCR. Any guidance relating to Title IX enforcement should be a reflection of the Title IX’s text and statutory history. If the 2011 letter merely constituted the OCR’s view of “best

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practices” to prevent sexual assault as a form of sex discrimination, and had been properly vetted by interested parties or Congress, it would have been prudent for universities to follow it. However, since the agency’s 2011 letter created very specific and new sexual assault guidelines that are not clearly inferred from the text of Title IX, without congressional oversight, without legal precedent, and without the typical notice and comment period required by the Administrative Procedures Act, the answer is not so clear. Without having sought advice from Congress, the body who enacted Title IX, it may be “unlikely that these requirements will reflect Congressional intent.”74 To clarify, the “issue is not the substance of the requirements—colleges and universities must maintain a safe learning environment for all students free from discrimination,” but rather the OCR’s use of sub-regulatory guidance to create “new enforcement standards” that may have diverged from the statutory meaning of Title IX.75 The reason why the Administrative Procedures Act requires agencies such as the OCR to receive feedback from stakeholders before issuing and enforcing new policies is to provide administrators with prior notice and for the OCR to learn of unanticipated conflicts. Above all, this process aims to ensure that each individual’s rights are protected to the greatest extent possible. Yet, according to Robert Shibley, the Executive Director of the Foundation for Individual Rights in Education, when the agency issued its Dear Colleague Letter on Sexual Violence, the “OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement, and the general public.”76 Without having solicited feedback from such groups, the OCR’s 2011 guidelines inadvertently created conflicts of interest between public universities’ obligations under the DCL and their respective obligations under the Constitution and the laws of their respective states. The lowered due process protections also invited lawsuits from students accused of sexual assault. Above all, the letter exacerbated the debate regarding whether a college campus or a criminal court is the proper venue to adjudicate sexual misconduct among students. On one hand, it may be prudent for schools to follow the OCR mandates to avoid investigation, while on the other it may be prudent for a school to follow the Constitution and state law.

HOW DID TITLE IX BECOME A LAW TO MONITOR STUDENT SEXUAL MISCONDUCT? In 1993, Antioch University was the first campus to implement an affirmative consent policy for sexual encounters between students in order

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to preemptively eliminate the possibility of sexual assaults among students. The result: the university became a laughingstock, fodder for late-night television parodies, and an example of the bureaucracy run amuck.77 In an effort to “codify the sexual behavior of adolescents,” the policy became infamous for requiring students to receive a verbal indication of consent for every stage of sexual intimacy.78 The policy seemed to misunderstand the nature of sexual intimacy and created a culture of fear surrounding spontaneous displays of affection or sexual interest. Fast forward almost two decades and the standards of the 2011 letter transformed the Antioch policy into the standard operating procedure for colleges across the country. How did this happen? Before Title IX, the Fourteenth Amendment already prevented public institutions from denying participation in educational programs or activities on the basis of a student’s race, sex, or other immutable characteristics.79 However, the ban against sex discrimination under the amendment was not recognized by the Supreme Court until 1976.80 Title IX was passed to expand the scope of this ban against sex discrimination in education beyond public institutions to all educational programs receiving federal funds. Once the U.S. Supreme Court also accepted the notion of sexual harassment as a form of sex discrimination,81 the Fourteenth Amendment and Title IX also conferred positive obligations on public institutions to prevent sexual harassment. Public schools and schools receiving any federal funding, for example, were required to ensure that all students were free from assault, harassment, and other forms of discrimination.82 Before the 2011 letter, it was not enough for the institution to prohibit sexual assault or discipline the perpetrators; the Fourteenth Amendment also required institutions to take measures to create an environment in which sexual assault would not happen and lessen its impact on individual students when they occurred.83 Specifically, public universities were required to change the culture, support victims/survivors, and facilitate victims’/survivors’ pursuit of justice. Title IX extended these requirements to any school receiving federal funding. However, students such as Kathy, as described in prospective one, were still sexually assaulted and failed to receive justice. The combination of Norma Cantú’s 1997 inclusion of peer sexual misconduct as actionable under Title IX84 with the Supreme Court decision in Davis v. Monroe County Board of Education helped pave the way for the Office for Civil Rights to issue its 2011 letter. Court rulings from Cannon, to Franklin, to Gebser and Davis that created a private right of action and monetary damages if a school is found to be liable led schools to adopt defensive student conduct policy to avoid being sued.85

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Figure 4.1 The Evolution of Title IX to Include Peer Sexual Misconduct Cannon v. University of Chicago finds a private right of action in Title IX.

Franklin and Gebser together affirm a private right of action and monetary damages if a school fails to provide remediation for known sexual harassment of a student by an employee of the school district.

Norma Cantú issues the 1997 Sexual Harassment Guidance, which includes a ban of peer sexual misconduct as actionable under Title IX.

Davis v. Monroe County Board of Education finds peer-on-peer sexual misconduct to be actionable under Title IX, if severe, pervasive, and objectively offensive.

2011 Letter creates specific guidelines for trying cases of sexual misconduct among students.

2014 “Questions and Answers” provides detailed descriptions of the 2011 requirements.

2017 Letter rescinds the 2011 and 2014 Letters on the basis of their failing to provide adequate due process protections and failing to have solicited notice and comment from interested parties.

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Further, the OCR’s 1997 Guidance, which increased Title IX liability to cover peer-on-peer sexual harassment, established a precedent of the agency independently creating new policy without authorization by Congress or the Supreme Court. For over two decades, very little oversight has been exercised by Congress, the Supreme Court, or the people over the OCR’s expanding guidance documents. Moreover, since the courts generally defer to the agency’s interpretation of its own guidelines, the OCR has been free to add requirements to existing laws. Women’s rights advocates believe that this is the appropriate functioning of the Office for Civil Rights—to expand women’s rights under Title IX as much as possible, and, in this case, provide additional protections to women in cases of sexual assault.86 Critics of the 2011 letter question the constitutionality of the new rules themselves and the method by which these complex mandates were created.87 Why did Secretary Ali issue such detailed and specific procedures for campus investigations of sexual assault in 2011? In short, Title IX became the means of combating sexual assault on college campuses because the President of the United States decided that it should. The decision may have been inspired by advocates who were frustrated with the criminal justice system’s low conviction rate, or may have been politically motivated, since President Obama’s party had lost seats in the midterm election of 2010.88 In either case, the issuance of the letter followed a trend of increasing and unchecked bureaucratic discretion in the OCR.

CONCLUSION The 2011 Dear Colleague Letter on Sexual Assault represents a major transformation to Title IX in three fundamental ways. First, the 2011 guidelines adopted “a civil rights approach” to sexual assault, which focuses on the needs of the victim/survivor.89 To correct past failings by colleges and universities across the country the new approach focuses on providing prompt remedial measures to protect the victim/survivor from the trauma of a rape trial. While the Dear Colleague Letter appropriately prompted institutions to do more to provide resources to the victim/survivor, it also raised significant due process concerns. Advocacy groups, including the AAUP and FIRE, as well as legal experts across the country, have raised concerns regarding the appropriate due process protections for both the victim/survivor and the accused. Those due process concerns were a major reason why the OCR rescinded the letter in 2017. Second, like the 1997 Sexual Harassment Guidance, the letter went beyond the established legal precedent established in Gebser and Davis,

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which required that schools respond to known patently offensive and repeated offenses between peers without deliberate indifference.90 The Dear Colleague Letter required far more—institutions were expected to investigate, prosecute, and adjudicate single claims of sexual assault by persons over whom the school has no direct control, in environments over which the school also has no control. Moreover, such investigations were required to occur in a rapid manner and to utilize procedures that are significantly less protective of the accused than those of the criminal justice system. Third, the manner in which the OCR promulgated the 2011 DCL raised concerns regarding what constitutes legitimate law-making process.91 The Office for Civil Rights has allocated to itself the authority, not merely to interpret Title IX’s legal precedent, but to create new policy to investigate sexual assault allegations through issuing a sub-regulatory guidance letter. Unlike the 1997 Sexual Harassment Guidance, Ali did not solicit input regarding the 2011 letter’s content. A bi-partisan task force has argued that since “sub-regulatory guidance lacks the formal opportunity for stakeholders to comment on the proposed guidance, it is doubly important that this process be used sparingly.”92 Congress is the elected body created to make legal policy with its legitimacy arising from the people who elected them, while the responsibility of agencies such as the OCR is to “use regulations to effectuate those [congressional] policies.”93 While it may seem attractive to encourage the President of the United States or his department’s bureaucratic agencies such as the OCR to “use those processes to pursue its own policy,” such actions may inadvertently lead to constitutional conflicts, unintended legal consequences, and partisan controversy epitomized by the national reaction to the 2011 letter, and its later withdrawal. The problem of sexual assault on college campus remains. While there may be greater awareness that a serious problem exists, debate continues regarding an appropriate means of addressing that problem. The next decade will help determine whether a campus Title IX investigation or criminal court is the proper vehicle by which sexual assault should be investigated and punished, as universities decide the standards by which they will adjudicate such crimes. Sadly, regardless of the method of choice, victims/survivors will still fail to receive justice, and, innocent students may falsely be punished. The good news is that this Title IX controversy has brought public scrutiny to sexual assault on college campuses, and victim/survivors are more likely to receive the resources they need to overcome the traumatic experience that no one should have to endure.

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NOTES 1

2

3 4

5

6

7 8

9 10 11

12 13 14 15 16

17

Russlynn Ali, Assistant Secretary for Civil Rights, “Dear Colleague Letter: Sexual Violence,” Office for Civil Rights, U.S. Department of Education (April 4, 2011). All subsequent references to this letter will refer to DCL 2011. Nancy Chi Cantalupo, “Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence,” Loyola University Chicago Law Journal 43 (2011) 205, 214–217. Jake New, “Guidance or Rulemaking,” Inside Higher Education, January 7, 2016. Candice Jackson, Acting Assistant Secretary for Civil Rights, “Dear Colleague Letter on Campus Sexual Misconduct,” Office for Civil Rights, U.S. Department of Education (September 22, 2017). The only Title IX legal precedent cited in support of the 2011 procedures for adjudicating sexual assault is Davis v. Monroe County Board of Education, 631 F. 2d 178 (2d Cir. 1980), a case that does not specify any required adjudication procedures for sexual assault cases. 2017 DCL on Campus Sexual Misconduct; Jeremy Beaman, “Some campuses say they’ll stick with low standard of evidence to adjudicate rape claims,” The College Fix, October 12, 2017; “Message from GW President Thomas LeBlanc on Title IX,” GW Today, September 25, 2017. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); Dixon v. Alabama, 294 F. 2d 150 (5th Cir. 1961). Oren R. Griffin, “A View of Campus Safety Law in Higher Education and the Merits of Enterprise Risk Management,” Wayne Law Review 61 (2016): 379, 383. Christopher Krebs, Christine Lindquist, Tara Warner, Bonnie Fisher, and Sandra Martin, “The Campus Sexual Assault (CSA) Study,” Report to the U.S. Department of Justice (unpublished), (October, 2007), STUDY 2-5–2-8, www.ncjrs.gov/ pdffiles1/nij/grants/221153.pdf. Janet Napolitano, “Only Yes Means Yes: An Essay on University Policies Regarding Sexual Violence and Sexual Assault,” Yale Law and Policy Review 33 (2014): 387. Cantalupo, “Burying Our Heads,” 214–216. Nancy Chi Cantalupo, “Decriminalizing Campus Institutional Responses to Peer Sexual Violence,” Journal of College and University Law 38 (2012): 481, 487–488 n.28. Cantalupo, “Burying our Heads,” 214–216. David E. Bernstein, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law (New York: Encounter Books, (2015), 123. Annie Kerrick, “Justice Is More Than Jail: Civil Legal Needs of Sexual Assault Victims,” The Advocate ( January 2014): 38. Diane L. Rosenfeld, “Uncomfortable Conversations: Confronting the Reality of Target Rape on Campus,” Harvard Law Review F. 128 (2015): 359, 366. “Fact Sheet: Obama Administration Highlights Unprecedented Coordination across Federal Government to Combat Violence Against Women,” accessed on November 29, 2016, www.whitehouse.gov/sites/default/files/rss_viewer/Reducing_Domestic _Violence_fact_sheet.pdf. Erin Buzuvis, “OCR ‘Dear Colleague’ Letter Addresses Sexual Harassment in Schools,” Title IX Blog, April 6, 2011.

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18 19

20 21 22 23 24 25 26

27 28

29 30

31 32

33 34

Nancy Chi Cantalupo, “The Civil Rights Approach to Sexual Violence,” Regent Law Review 28 (2016): 185–196. This vignette is adapted from Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), cert. voluntarily dismissed in relevant part sub nom. United States v. Morrison, 529 U.S. 1062 (2000). The actual allegations have been modified in the interests of brevity and clarity. Sabrina Rubin Erdely, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA,” Rolling Stone, November 19, 2014. Ibid. “Jackie” is a pseudonym used by the complainant in her interview. T. Rees Shapiro, “U-Va. students challenge Rolling Stone account of alleged sexual assault,” The Washington Post, December 12, 2014. Matthew Haag, “Rolling Stone Settles Lawsuit Over Debunked Campus Rape Article,” New York Times, April 11, 2017. “Timeline: Allegations of Rape at UVA,” Washington Post, www.washingtonpost. com/apps/g/page/local/timeline-allegations-of-rape-at-u-va/1501/. This case is a composite of several cases, some of them still pending. The facts have been modified in the interests of brevity and clarity. Scott Jaschik, “Title IX Victory for Man Suing Over Sex Assault Finding,” Inside Higher Ed, August 1, 2016; Jake New, “Out of Balance,” Inside Higher Ed, April 14, 2016; Valerie Bauerlin, “In Campus Rape Tribunals, Some Men See Justice,” Wall Street Journal, April 10, 2015; Matt Rocheleau, “Ex-UMass Student Sues Over Expulsion in Sex Assault Case,” The Boston Globe, August 8, 2014; Robert Shibley, “Time to Call the Cops; Title IX Has Failed Campus Sexual Assault,” Time, December 1, 2014. Davis v. Monroe County School Board of Education, 526 U.S. 629 (1999), 675. DCL 2011; Catherine E. Lhamon, Assistant Secretary for Civil Rights, “Questions and Answers on Title IX and Sexual Violence,” United States Department of Education, Office for Civil Rights (April 29, 2014). All subsequent references to this document will be cited as Q and A 2014. Q and A 2014, F3. As a condition of participation of Title IX and the Higher Education Assistance (HEA) programs, colleges and universities also are subject to the Clery Act, which requires institutions of higher education to comply with certain safety and security related requirements. In 2013, the Violence Against Women Act (VAWA) amended the Clery Act to require institutions to provide, among other things, programs and policies to address incidents of dating and domestic violence, sexual assault and stalking. 20 U.S.C. § 1092(f ). 42 U.S.C. § 13925 et seq. Proposed regulations pursuant to VAWA were issued June 20, 2014 and final regulations were issued on October 20, 2014. See 34 C.F.R. § 668.46. Stephen Henrick, “A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses,” N. Kentucky Law Review 40 (2013): 369. Catherine E. Lhamon, Assistant Secretary for Civil Rights, “Dear Colleague Letter: Title IX Coordinators from Assistant Secretary for Civil Rights,” Office for Civil Rights, U.S. Department of Education. Office of the Assistant (April 24, 2015). Davis, 526 U.S. 629 (1999). See Karen Oehme et al., “A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers,” Harvard Journal of Law and Gender 38,

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35 36 37 38 39 40 41 42

43 44 45 46 47

48 49 50

51 52 53 54 55

56 57 58 59 60 61 62 63

(2015): 337, 347; Anxiety and Depression Association of America, “Symptoms of PTSD,” www.adaa.org/understanding-anxiety/posttraumatic-stress-disorder-ptsd/ symptoms (last updated Aug. 2015). Q and A 2014, 30. Ibid., 25, 30, 37. Henrick, “A Hostile Environment,” 52. Davis, 526 U.S. 629, 644–647 (1999). Ibid. DCL 2011, 1–19; Q and A 2014, 1–3. DCL 2011, 11, 16–17. Norma V. Cantú, Assistant Secretary for Civil Rights, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties,” U.S. Department of Education, Office for Civil Rights, ( January 19, 2001). All subsequent references to this document will be cited as Revised Sexual Harassment Guidance, 2001. DCL 2011, 11. Ibid. Ibid. “Title IX: Tracking Sexual Assault Investigations,” Chronicle for Higher Education, http://projects.chronicle.com/titleix/ Neena Chaudhry and Lara S. Kaufmann, Senior Counsel National Women’s Law Center, “Letter to Russlynn Ali Assistant Secretary for Civil Rights,” February 8, 2012. “Rethink Harvard’s sexual harassment policy,” Boston Globe, October 15, 2014. James S. Murphy, “The Office for Civil Rights’s Volatile Power,” The Atlantic, March 13, 2017. See Cloud v. Trustees of Boston University, 720 F.2d 721, 724–725 (1st Cir. 1983); Gomes v. University of Maine System, 365 F. Supp. 2d 6, 29 (D. Me. 2005) Q and A 2014, 31. Bernstein, Lawless, 125–126. Q and A 2014, 32. KC Johnson and Stuart Taylor, “The Path to Obama’s Dear Colleague Letter,” Washington Post, January 31, 2017. To the extent the OCR epistles encourage institutions to ignore due process, the OCR epistles seem to promote an attitude of avoiding false acquittals rather than false convictions. It is better that an innocent student be expelled than to allow a rapist to escape punishment. See William Blackstone, 4 Commentaries *352 (“[B]etter that ten guilty persons escape, than that one innocent suffer.”). Revised Sexual Harassment Guidance, 2001. Ibid., 22. Q and A 2014, footnote 22. DCL 2011, 12. Ibid., 4, 5, 6, 8, 9, 10, 12, 15, 16, 18. Dixon, 294 F.3d 150 (5th Cir. 1961). See Flaim v. Medical College of Ohio, 418 F.3d 629, 633–637 (6th Cir. 2005).

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64

65

66 67 68 69 70 71 72

73 74 75 76 77 78 79

80 81 82

Unfortunately, institutions often fail in this regard. As Professor Bernstein observed: most campus tribunals ban attorneys for the parties (even in an advisory capacity), rules of procedure and evidence are typically ad hoc, and no one can consult precedents because records of previous disputes are sealed due to privacy considerations. Campus “courts” therefore have an inherently kangarooish nature. Even trained police officers and prosecutors too often mishandle sexual assault cases, so it’s not surprising that the amateurs running the show at universities tend to have a poor record. David E. Bernstein, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law. (New York: Encounter Books, 2015), 124. As the Supreme Court explained in Mathews v. Eldridge, 424 U.S. 319, 334–335 (1976): [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Virginia Code § 23–9.2: 18. Susan Svrluga “Former U-Va. law student files suit challenging federal sexual assault directive,” Washington Post, June 17, 2016. “Rethink Harvard’s sexual harassment policy,” Boston Globe, October 15, 2014. Bradford Richardson, “Professors pen open letter denouncing Title IX overreach,” Washington Times, May 18, 2016. Jake New, “Out of Balance,” Inside Higher Education, April 14, 2016. James S. Murphy, “The Office for Civil Rights’s Volatile Power,” The Atlantic, March 13, 2017. Task Force on Federal Regulation of Higher Education, “Recalibrating Regulation for Colleges and Universities,” Task Force on Federal Regulation of Higher Education, February 12, 2015, 36, www.help.senate.gov/imo/media/Regulations_ Task_Force_Report_2015_FINAL.pdf. All subsequent references to this document will cite Task Force, “Recalibrating.” Jake New, “Must vs. Should,” Inside Higher Education, February 25, 2016. Ibid. Task Force, “Recalibrating,” 36. Foundation for Individual Rights in Education, “FIRE Aims to Challenge Legality of Federal Sexual Misconduct Mandate,” April 4, 2016. “ ‘Ask First’ at Antioch,” New York Times, October 11, 1993. Ibid. Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (race); United States v. Virginia, 518 U.S. 515, 532–533 (1996) (sex); Bernal v. Fainter, 467 U.S. 216, 219–220 (1984) (alienage). Craig v. Boren, 429 U.S. 190 (1976). Meritor Savings Bank v. Vinson, 477 US 57 (1986). See Brian A. Snow & William E. Thro, “Still on the Sidelines: Developing the Non-Discrimination Paradigm Under Title IX,” Duke Journal of Gender Law and Policy 3, 1 (1996): 14–16.

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83

84 85

86 87

88 89 90 91 92 93

Henrick, “A Hostile Environment,” 49, 52; Diane L. Rosenfeld, “Uncomfortable Conversations: Confronting the Reality of Target Rape on Campus,” Harvard Law Review F. 128 (2015): 369. Norma V. Cantú, Assistant Secretary for Civil Rights, “Sexual Harassment Guidance.” Federal Register 62, No. 49 (March 13, 1997): 12034–12051. Cannon v. University of Chicago, 441 U.S. 677 (1979); Franklin v. Gwinnett School District, 503 U.S. 60 (1992); and Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998); and Davis, 526 U.S. 629 (1999). David Margolick, “Women Turn to Courts to Gain Rights,” New York Times, June 29, 1982. Task Force on Federal Regulation of Higher Education, “Recalibrating Regulation for Colleges and Universities,” Task Force on Federal Regulation of Higher Education, February 12, 2015, www.help.senate.gov/imo/media/Regulations_ Task_Force_Report_2015_FINAL.pdf. Johnson and Taylor, “The Path to Obama’s Dear Colleague Letter.” Cantalupo, “The Civil Rights Approach to Sexual Violence.” Gebser, 524 U.S. 274 (1998) and Davis, 526 U.S. 629 (1999). Task Force, “Recalibrating.” Ibid., 14. Ibid.

CHAPTER 5

Title IX’s Untold Story

TITLE IX’S NEW FRONTIER

A

final transformation of Title IX was attempted on May 13, 2016 when the Office for Civil Rights and the Department of Justice jointly issued a letter declaring that Title IX also constituted a ban against discrimination based upon “gender identity.”1 The letter had two goals. First, the directive aimed to provide broader Title IX protections to transgender students who identify as a sex other than their biological sex. Second, the letter intended to influence a pending court case that was likely to be heard by the Supreme Court.2 In February of 2017, the Trump administration rescinded the letter and so its content is null and void. The core controversies associated with this transformation, as with the others, arose not only from the content of the new requirements, but also from the manner in which the new mandate was created. The new law was written, interpreted, and enforced by the Office for Civil Rights and the Department of Justice without any congressional debate or input from other interested parties. In order to achieve its goals, the Transgender Letter created new obligations under Title IX by promulgating a new definition of discrimination based upon sex. After describing the court battle that motivated the OCR to issue the letter, the chapter details the content of the letter and how the letter came to be. The chapter concludes by exploring the implications of the 2016 Dear Colleague Letter and similar Title IX transformations for a constitutional system based upon the rule of law, separation of powers, and checks and balances.

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THE CASE OF GAVIN GRIMM Gavin Grimm (G.G.) is a transgendered student, who is biologically a female, but chose to undergo hormone treatments to transition into a male. When the Gloucester School District prohibited transgendered students from using the bathroom that did not correlate with their biological sex, G.G. filed a suit claiming that this amounted to discrimination “on the basis of gender and sex.”3 When G.G. indicated discomfort using the girls’ restrooms, the school granted permission to use the unisex single-stall bathroom. However, the unisex bathroom made Gavin feel even more uncomfortable and eventually G.G. avoided using the bathroom at school altogether, which resulted in multiple urinary tract infections.4 The principal agreed to grant G.G. access to the men’s restroom for almost two months, but when parents within the school district complained that this policy violated their children’s right to privacy from members of the opposite sex, the school returned to the policy of segregated bathrooms based on biological sex.5 Transgender students like Gavin, who declined to use the bathroom that correlated to their biological sex, would be permitted to use the unisex restrooms.6 G.G. filed a Title IX complaint with the Office for Civil Rights and, with the assistance of the American Civil Liberties Union, a complaint in district court. G.G. argued that the Gloucester school district’s transgender bathroom policy constituted discrimination based upon sex in violation of the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972. First, the school refused to recognize G.G. as “biologically” male despite G.G.’s identification as male. Second, the school excluded G.G. from the male restrooms “because of his ‘gender identity issues.’ ”7

THE TRANSGENDER GUIDANCE While Gavin’s case was working its way through the courts, on May 13, 2016, the OCR and the Department of Justice (DOJ) jointly issued a Dear Colleague Letter covering schools’ responsibilities towards transgender students.8 Assistant Secretary for Civil Rights Catherine Lhamon and Principal Deputy Assistant Attorney General for Civil Rights Vanita Gupta issued the Dear Colleague letter without releasing the draft document for comment from interested parties. The letter brought immediate impact—it impelled the judges in G.G.’s Circuit Court Case to grant a preliminary injunction requiring Gloucester to allow G.G. access to the

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Questions Raised by G.G. v. Gloucester County Gavin’s case raises a number of concerns. • • • •

•

Is gender-identity discrimination a form of sex discrimination banned under Title IX? Is the right to a particular bathroom regardless of one’s biological sex an established right under Title IX? Are biological “sex” and “gender identity” interchangeable concepts? Does requiring a transgender student to use unisex bathrooms or bathrooms that correspond to his or her biological sex constitute discrimination based upon gender identity? Does this constitute discrimination based upon sex? Does a right to privacy allow bathrooms to be segregated based upon sex? The answers depend upon the meaning of “sex” and “gender-identity.”

If sex is a biological designation relating to one’s anatomical structure and physiology: “Sex” would be a fixed designation determined by biology. No individual chooses the sex with which he or she is born. In contrast, “gender-identity” is a choice and not an immutable designation. Thus, the ban against discrimination based upon sex would not be the same notion as a ban against discrimination based upon gender identity because the two concepts are distinct. According to this view, requiring all females (regardless of gender identity) to use the same bathroom would not constitute discrimination based upon sex under Title IX. Both sexes have a right to privacy, which in this context means a right to have their bodies shielded from members of the opposite sex. The desire to protect the rights of transgender individuals, therefore, leads to a need for public discourse and clear legislative policy from Congress. If sex is “assigned at birth,” i.e., a choice that a doctor or parent makes for the child: Sex in this view would be a choice, just as gender-identity is a choice. Under this conception, the terms “sex” and “gender identity” would be synonymous and interchangeable. According to this view, the ban against discrimination based upon sex under Title IX would be identical to a ban against discrimination based upon gender identity. This is the argument by which Catherine Lhamon asserts that it “couldn’t be clearer that the prohibition on sex discrimination” requires that individuals be permitted to choose their amenities and athletics teams based upon their chosen gender-identity, rather than the “sex assigned at birth.” According to Circuit Judge Paul V. Niemeyer, this “new definition of sex that excludes reference to physiological differences” breaks with “virtually every dictionary definition of ‘sex.’ ”9 The right to select the bathroom of one’s choice would follow from this new definition of sex as changeable. The right to privacy would not enter this conversation.

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men’s restroom.10 Nationwide controversy also ensued. In two separate cases, twenty-one states brought lawsuits against the federal government and requested an injunction to put the new policy on hold.11 Ultimately, the preliminary injunction was suspended and, while the case was still pending, the Trump administration rescinded the Transgender DCL. As a result, the Supreme Court sent Gavin’s case back to the Fourth Circuit Court of Appeals to be reconsidered. Although the guidance was only enforced for a few weeks, the letter exemplifies the way in which Title IX has been transformed for over four decades. Federal agencies such as the Office for Civil Rights have often created and enforced new rules under the laws they are created to enforce. New obligations constitute new law, which may or may not be consistent with the text of any given law passed by Congress. The story of how and why the Transgender Dear Colleague Letter was able to be issued clarifies why Title IX’s transformation has been so expansive, and has often been challenged in court, for over forty-five years. Moreover, the legal challenges to various interpretations of Title IX, perpetrated through Dear Colleague letters and guidance recommendations, bring to light two underlying reasons why Title IX has been a lightning rod for controversy throughout its history. Title IX’s checkered history is not rooted in the debates over any particular extension of women’s rights, but in two deeper questions: the meaning of equality (opportunities versus end-results) and the role of the bureaucracy NEW POLICIES OF THE within a constitutional system. 2016 DCL These two questions will likely characterize the future of Title IX.

The 2016 Dear Colleague Letter eliminates permissible sex segregation under Title IX. Since its implementation, Title IX has permitted sex-segregated restrooms, dressing rooms, residence halls, or living facilities (due to privacy concerns) and separate athletics teams based upon sex (due to biological differences). The transgender guidance eliminates these exceptions. According to the letter, anyone, regardless of their biological sex, must be permitted to utilize a facility or join a team based on the gender identity they have chosen.

Content of the Transgender Letter The Transgender Dear Colleague Letter redefined the term “sex” as “gender identity” in order to prohibit the practice of segregating facilities or opportunities based upon biological sex. Although Title IX had since its adoption permitted such sex segregation to protect the privacy rights of both sexes, the redefinition of sex

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as gender identity made such segregation impossible. The letter required schools to “treat a student’s gender identity as the student’s sex for purposes of Title IX.”12 Toward this end, if “a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity,” or be provided with private individual facilities if the transgender student prefers.13 In athletics, a transgender student must be permitted to participate on the team of their identified gender unless there is “sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.” The educational institution bore the burden of demonstrating such impact.14

The OCR’s Redefinition of Sex In issuing this letter, the Office for Civil Rights and the Department of Justice attempted to replace the word “sex” in Title IX’s prohibition of “sex discrimination in educational programs and activities” with the term “gender identity,” so that the law would have prohibited “gender identity discrimination.” Title IX was written and interpreted under the fixed notion of biological sex, understood as the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished.15 The Transgender Letter, however, redefined the term “sex” or “biological sex” as “sex assigned at birth,” which is “the sex designation recorded on an infant’s birth certificate.”16 With this statement, the OCR and the DOJ transformed the notion of sex as a fixed biological trait into a completely mutable lifestyle choice “assigned at birth.” The letter’s redefinition of sex as a choice provides the justification for requiring institutions to “treat a student’s gender identity as the student’s sex for purposes of Title IX.”17 The letter provided this new conception of sex, not due to a new consensus in the scientific or medical community, nor because the term sex is used differently in the twenty-first century than it was at the time of Title IX’s adoption. The redefinition was made to achieve the policy goal of ensuring that “transgender students enjoy a supportive and nondiscriminatory school environment.”18 None of the legal challenges disputed the goal of providing a supportive educational environment for all students, instead their focus was on whether Title IX requires schools to permit students to choose a sex-segregated facility or activity based on their identity instead of their biological sex.

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Table 5.1 What Is Sex? Sex

Physiological and anatomical structures of males and females as determined by biology.

Sex Equality

Treating individual males and females equally regardless of their biology.

Gender

Society’s notion of the traits a male or a female should possess. The belief that males should be masculine, while females should be feminine. Gender is created and based on changeable attitudes.

Gender Equality

Equalizing society’s notion of what a male should be with society’s notion of what a female should be. Adjusting societal attitudes so that neither males, nor, females are valued more than the other.

Gender Identity

An individual’s internal sense of gender.

Sex Assigned at Birth

The sex designation recorded on an infant’s birth certificate.

Transgender

An individual whose gender identity does not align with their sex assigned at birth.

Gender Transition

The process a transgender individual may take to assert the sex characteristics of the gender identity with which they internally identify.

PERMISSIBLE DIFFERENTIAL TREATMENT UNDER TITLE IX The letter’s rejection of the sex segregation (of bathrooms, locker rooms, residence halls, athletics, and other programs or activities) that had been permitted under Title IX also challenged the longstanding rationales by which differential treatment based upon sex is warranted under Title IX: (1) privacy rights, and (2) biological differences.

Right to Privacy → Segregated Bathrooms and Locker Rooms According to Title IX and the Supreme Court, a ban on sex discrimination does not require the elimination of sex-segregated bathrooms or other facilities; in fact, Title IX explicitly permits such differential treatment.19 The courts have also consistently recognized “privacy and safety concerns arising from the biological differences between males and females.”20 Justice Ruth Bader Ginsberg similarly has argued that “[s]eparate places

TITLE IX’S UNTOLD STORY

to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.”21 The individual right to privacy is “a right of constitutional dimension” that can be “harmonized” with the equality of the sexes, in her view.22 Fourth Circuit Judge Paul Niemeyer agrees. An individual “has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex.”23 Had the 2016 Dear Colleague Letter been fully enforced, such sex segregation in the interests of privacy rights would have been prohibited across the board.

Biological Differences → Segregated Athletic Teams The second reason that disparate treatment based on sex is permitted under Title IX is due to the relevance of the differing biology of males and females in physical competition. The letter attempted to remove four and a half decades of precedent that had accommodated the physiological differences between males and females under Title IX. If it had been enforced, the Transgender DCL would have permitted biological males (who identify as female) to compete on women’s teams. If athletic competitions ceased segregating male and female teams, the net result could be the complete dominance of males and far fewer opportunities for women. Thus, the letter’s requirements could have altered the competitive structure of sports and potentially limited the opportunities of biological females.

CONFUSION OVER THE MEANING OF “SEX” AND “GENDER” Over the four and a half decades since Title IX’s adoption, American society has come to recognize additional forms of sex discrimination, such as sexual harassment and various forms of sex stereotyping. This broadened definition of sex discrimination under Title IX has resulted in a number of positive developments. Today, victims of sexual harassment and assault have more opportunities to receive resources to help them overcome the trauma and move on with their lives. In addition, young girls and boys are no longer tracked into certain fields of studies due to sex stereotypes. The power of those sex stereotypes has also been weakened. As Title IX and other laws opened doors to women and men outside the traditional jobs and fields of study, the sex stereotypes previously attached to males and females also began to erode.

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To assist in opening opportunities and overcoming the outSEX STEREOTYPING dated stereotypes that impeded women from playing sports, Title IX says that individuals are not to joining the military, or becombe treated differently based upon their ing electrical engineers, women’s biological sex, which has evolved to rights activists such as Catharine include a ban of sex stereotyping. MacKinnon created new terminRecognizing sex stereotyping as a form ology. As a result of MacKinnon’s of sex discrimination under Title IX is efforts, today the term “gender” analogous to recognizing that sexual has become the politically correct harassment is a form of sex term for “sex” in order to stress discrimination. An effeminate male that sex stereotypes are not natural cannot be denied an opportunity because or fixed. The term “gender” sighe is not more masculine, nor can an nifies the opinions that society ambitious woman be denied a promotion attaches to members of each sex. because she is not feminine enough. Women’s rights advocates prefer Similarly, a student cannot be forced to use the term “gender” to stress to comply with the sexual advances of a that a female or a male can be teacher because the teacher believes whatever she or he wishes to be; her complicity is the duty of young neither is determined by biology, females. and neither needs to conform to society’s traditional roles. As awareness of the difficulties faced by transgender individuals have come to light, new terms, such as gender-non-conforming or cisgender have also been introduced into the American vernacular to assist us in understanding our diverse society. However, an unintended consequence of the introduction of the term “gender” is that people often erroneously use the terms “gender” and “sex” interchangeably despite their different meanings. The term “sex” has always signified the biological, physiological, and anatomical differences between the two sexes. The creation of the term “gender” has led some to argue that “sex” does not exist.24 The 2016 Dear Colleague Letter capitalized on this ambiguity in terminology. Although Title IX bans sex discrimination, the letter altered the meaning of sex within the statute to advance a particular notion of civil rights. To extend Title IX protections to transgender students, they employ use of the terms “sex” and “gender” interchangeably, despite their very different meanings. According to Catherine Lhamon, it “couldn’t be clearer that the prohibition on sex discrimination” in Title IX is also a ban against gender-identity discrimination because sex and gender are synonymous and interchangeable terms.25 The American Civil Liberties Union agrees.26 They argue that the Supreme Court’s history of banning

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sex stereotyping as a form of sex discrimination provides a precedent for including gender identity discrimination as banned.27 However, the 2016 Transgender Letter does not cite any Title IX precedent for such an interpretation because the Supreme Court has never addressed sex identity discrimination under Title IX. Ultimately, Congress or the Courts are delegated the authority by the U.S. Constitution to decide the meaning of words in Title IX or any statute under scrutiny. While Congress may repeal or rewrite a law, neither the Courts, nor the appointed bureaucrats in the federal government have the authority to rewrite the words of a law. Over the last decade, the Office for Civil Rights has decided to resolve a number of substantive disputes regarding the meaning of the words within Title IX’s text before Congress or the courts have intervened. This exponential growth in the power of bureaucratic agencies such as the Office for Civil Rights, not merely to enforce, but also to create and interpret new policy has played a significant role in transforming Title IX.28

THE UNTOLD STORY OF TITLE IX’S TRANSFORMATION It turns out that Title IX is a case study in the development of what we term the “discretionary bureaucracy,” an appointed agency that does not merely enforce the law, but also creates and enforces “new substantive legal obligations” beyond the text of the law.29 Many stories have celebrated Title IX’s opening of sports opportunities, classroom equality, or sexual assault awareness, or lamented the work yet to be done. This book has chronicled Title IX’s untold story—a tale of expanding women’s rights through the federal bureaucracy, specifically, the Office for Civil Rights. As with the previous transformations, the continuing controversy surrounding the 2016 letter does not lie within its content, since it has already been rescinded, but with the means by which the letter’s new policy was enacted. This story closes by asking whether the process of altering civil rights through informal guidance documents a good way to protect the civil rights of males and females in perpetuity, and whether the increasing power of the bureaucracy is constitutional. According to Edith Green, the former U.S. Representative who assisted Title IX’s passage in the House of Representatives, the statute was all about “equality of opportunities” for all students.30 It “was designed to end discrimination on the basis of sex—in admission standards to undergraduate or graduate schools.”31 Its enactment removed the overt and arbitrary barriers to women in classrooms, in educational activities, and in

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WHAT IS THE “DISCRETIONARY BUREAUCRACY?” Since the 1970s and especially since the War on Terror, there has been a steady increase in deference to presidential authority, sometimes referred to as the “discretionary presidency.” The term “discretionary bureaucracy” applies the same notion to the administrative agencies of the federal government, who create, interpret, and enforce their own laws without oversight from another branch of government. Unlike the president, who is highly visible and therefore accountable to the public, bureaucrats are numerous and unseen.

athletics, but was narrow in scope because it only applied to programs directly receiving federal funding. After over four decades of enforcement, the American Association of University Professors finds that Green’s description “bears little resemblance to the version of Title IX currently advanced by the OCR.”32

The Discretionary Bureaucracy Just five years after Title IX’s passage, Representative Green noticed the beginnings of regulations inconsistent with Title IX as she and other lawmakers had conceived it. In a speech before Brigham Young University, she stressed:

Title IX was not designed to do away with intercollegiate sports. Title IX was not designed to force the integration by sex, of every physical education class in the country. Title IX was not designed to do away with all male choirs, father-son or, other-daughter banquets—or to require the integration by sex of Boy Scouts, Girl Scouts, Campfire Girls, Y.M.C.A.’s,—sororities, fraternities.33

These regulations, Green noted, “grew out of the fertile imaginative brain of someone in the administrative branch of the government.”34 Often such hasty regulations, she added, had to be corrected by Congress or the courts.35 This book has similarly illustrated three substantive expansions and three foundational transformations of the statute over the more than four decades since its passage. We have used the term “expansion” to signify the extension of Title IX’s jurisdiction consistent with its statutory language and “transformation” to denote alterations in jurisdiction, requirements, or enforcement beyond the statutory language or constitutional bounds of the law. The key expansions were constitutionally enacted by three branches of government—Congress, the Supreme Court, and the federal bureau-

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cracy. Congress passed the Civil Rights Restoration Act of 1987 to expand the jurisdiction of Title IX to all operations of a school in reaction to Grove City College v. Bell. The Supreme Court expanded Title IX’s jurisdiction to cases of overt and known sexual harassment of students by authority figures in Gebser v. Lago Vista. Finally, the Office for Civil Rights affirmed Gebser with its 1997 Sexual Harassment Guidance that clarified the affirmative requirements of Title IX’s non-discriminatory mandate. Once an institution has direct knowledge of sexual harassment, it must provide remedial resources. The transformations chronicled in this book display a pattern similar to the administrative guidelines that Representative Green lamented. The federal bureaucracy through its Office for Civil Rights has issued guidance documents and Dear Colleague letters that created, promulgated, and enforced three major transformations of Title IX’s meaning. The first of these was the Three-Part Test for athletics compliance, which altered the meaning of equal opportunity under Title IX to end-result equality. Next was the 1997 Sexual Harassment Guidance that added peer-on-peer sexual harassment as actionable under Title IX. The OCR enforced the new policy before the Courts had rendered a judgment. Third, the OCR issued, interpreted, and enforced a 2011 Dear Colleague Letter on sexual violence as a directive for a parallel criminal justice system for sexual misconduct. Finally, the 2016 Dear Colleague Letter was a fourth attempt to transform Title IX from a ban against sex discrimination into a ban against gender-identity discrimination. The last two letters, which substantially changed the compliance requirements of Title IX without legal or statutory precedent, were issued without providing draft documents to any interested parties. This use of discretionary power has also turned the Department of Education into a politicized agency that, according to the bipartisan Task Force on Federal Regulation of Higher Education, “has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives.”36 Sub-regulatory interpretations, guidance, and Dear Colleague letters have frequently been employed to solidify a policy change before the next presidential administration is elected. Unelected bureaucrats have changed Title IX by promulgating interpretations desired by the political party they represent, actions taken by both political parties. Democratic administrations have expanded the meaning of discrimination based upon sex, requiring end-result equality in athletics, and pursuing aggressive compliance reviews, while republican administrations tend to read Title IX more narrowly and relax the end-result standards.

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Table 5.2 Policy Changes Enacted by the OCR 1979 and 1996 Athletics Guidance: Issuance and Enforcement of Athletics Policy

• Adds the requirement of complying the Three-Part Test • Easiest way to comply is to establish equal outcomes • Replaces equality of opportunity with equal outcomes (dollars spend and participation spots offered) • Permitted interested parties time to comment • Enacted by a policy guidance and interpretation

1997 Sexual Harassment Guidance: Sexual Harassment Guidance

• Adds peer-on-peer sexual assault under Title IX without legal precedent • Permitted interested parties to comment • Enacted by a policy guidance and interpretation

2011 Dear Colleague Letter on Sexual Violence

• Adds a requirement of specific procedures for adjudicating peer-on-peer sexual assault • No opportunity for comment by interested parties • Enacted by a Dear Colleague letter

2016 Transgender Guidance

• Adds the requirement that schools treat a student’s gender identity as their biological sex • Removes the possibility of sex segregated bathrooms, locker rooms, residence halls, and athletics • Adds sexual-identity discrimination as banned under Title IX • No opportunity for comment by interested parties • Enacted by a Dear Colleague letter

Is This the Best Way to Protect Women’s Rights? A number of women’s advocacy groups encourage the Office for Civil Rights to take the precise actions they have over the last several decades because Title IX should “address discrimination in all forms.”37 These groups see three benefits of the discretionary bureaucracy. First, regulations can provide clarity to laws that Congress may not have addressed. Consistency and clarity, they say, are key reasons why the 2011 and 2016 Dear Colleague letters were needed. These bureaucratically created rules eliminate school discretion, and thus inconsistency nationwide. The absence of the OCR’s detailed obligations, they argue, makes “students more vulnerable” and creates confusion regarding “how to best comply

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with Title IX.”38 Schools need the OCR guidance to avoid “creating chaos for our kids.”39 Second, an OCR mandate can be “proactive” and can “[shift] power into the hands of the violated.”40 While the purpose of civil rights legislation is to protect the marginalized, the bitterly divided Congress has appeared incapable of achieving anything to protect anybody over the last two decades. The Office for Civil Rights, however, can act quickly to promulgate an important civil rights protection. This approach is less time consuming than building majority support for a policy, which could take years of persuasion, coalition-building, and compromise. Finally, the discretionary bureaucracy may, more easily than Congress or the courts, enforce a popular notion of sex discrimination to provide the greatest degree of protection possible. For all of these reasons, women’s rights advocates encourage the “courts and OCR [to] read [Title IX’s] prohibition against sex discrimination more broadly.”41 While such prerogative is welcomed when one favors the policy being promoted, or when one’s own candidate is in power, what happens when the political opposition gains the office? The same fiat may be used to impose the opposite policies. If one governs by bureaucratic directives such as the OCR’s, “the next President can come in and overturn them.”42 The ease with which an appointed bureaucrat may re-write a law or rescind its predecessor’s guidance can be problematic for an enduring notion of women’s rights. As President Obama was known to say, “Elections have consequences,” by which he implied that if Congress would not act, he (or his appointees) would go it alone.43 We have seen that an appointed bureaucrat can, with the stroke of a pen, wipe out the accomplishments of the previous administration, which leaves women’s rights on very shaky ground. Further, though the quick action may be satisfying to the party in power, it may also lead to inconsistent, shortsighted, or unreliable laws. Finally, the extensive use of administrative agencies such as the OCR has transformed law making into “a winnertake-all conflict between wholly incompatible ideologies and identities.”44 The result is a bitter, polarized public, as indicated by the split between popular and the Electoral College vote in two of the last five presidential elections. The public learns that what matters is power, not consensus.

Is the Discretionary Bureaucracy Constitutional? The deeper question, already raised by Edith Green, is the constitutionality of the authority adopted by the Office for Civil Rights. Constitutional scholars, such as Philip Hamburger, are troubled by the growth of discretion.45 The United States Constitution was instituted as a rejection

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of the prerogatives of King George over the colonies. Instead of placing arbitrary power in the hands of leaders, the U.S. Constitution creates a standard—fixed law that applies to all—backed up by a number of unique features, including a separation of powers and a system of checks and balances to support the rule of law. The Legislative Branch of the federal government has the authority to make the law. Though in recent years such law-making authority might erroneously be associated with the Supreme Court or with the President, Article I of the U.S. Constitution vests “[a]ll legislative Powers” in a Congress composed of a House and a Senate. Dividing the legislature into two houses ensures that the law-making process would be slow moving, often painstaking, and frustrating. This process has two main purposes: to avoid bad laws and to build consensus. To the first point, the slow process may protect against the passions of the moment and result in consensus-based sensible rules. To the second point, the process of consensus building can itself be therapeutic for winners and losers. Legislation built on debate, compromise, and consensus tends to be more stable, reliable, and respected. The Judicial Power is vested in a Supreme Court and all inferior courts. This power exists to defend the rule of law as outlined in the U.S. Constitution and to protect the structure of the federal government. Since Marbury v. Madison, the Supreme Court’s authority to declare a law passed by Congress unconstitutional has been recognized.46 This judicial review also intends to limit the impact of bad laws, which means laws that violate the Constitution. The Supreme Court is the final judge on the consistency of laws with the law of the land—the U.S. Constitution. Questions relating to the extent of a law’s jurisdiction or whether a law violates an individual’s or a group’s rights may be determined by the court. In the case of Title IX, the court has issued decisions relating to the jurisdiction—what acts constitute sex discrimination under Title IX? It has ruled that sexual harassment by teachers and sexual harassment by peers may be covered. The power to enforce the law, the “executive Power,” is “vested in a President of the United States of America.” The President enforces the laws made by Congress, and takes an oath to “preserve, protect and defend the Constitution of the United States.” The president has a role in law making—the veto power and the requirement of the President’s signature before a law passes give the president authority to turn down legislation unless Congress overrides a veto. The veto provides yet another protection against the possibility of a bad law being passed. Once a law is passed, the president must uphold the law through its bureaucratic agencies, such as the OCR. The president appoints the leaders of these departments, who serve at the pleasure of the president.

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Figure 5.1 How a Bill Becomes a Law A bill is introduced by a member of the House or Senate The House

The Senate

The bill is sent to committee

The committee either sends the bill to the floor for debate or kills it

The whole House debates and votes either to pass the bill or kill it

The floor either passes the same version as the Senate, or kills it

The bill is sent to committee The first time a bill passes the floor it is sent to the other chamber of Congress

After a bill has been through full Congress

If the chambers pass different versions of the bill, it is sent to conference committee. A single version is sent back to the floor of each chamber

The committee either sends the bill to the floor for debate or kills it

The whole Senate debates and votes either to pass the bill or kill it

The floor either passes the same version as the House, or kills it

If both floors pass the same version, it goes to the President

The President has ten days to:

Veto: The bill is sent back to Congress, who can turn bill into law with a 2/3 majority vote in both houses

Sign the bill into law

Do nothing: If Congress is in session it becomes law. If Congress is out of session it dies

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How the Other Branches “Make Law” Administrative Agencies The Constitution does not grant the Office for Civil Rights or other bureaucratic agencies explicit power to create new law. •

• • •

Issue a Guidance, which may have new policies – Should seek advice and guidance before issuing a final draft – Generally, has not sought advice in the last decade Choose whether and how stringently to enforce existing regulations Conduct compliance reviews at their discretion File Amicus Briefs with any Court addressing the same policies

The Judiciary The Anti-Federalist Brutus and the Federalist Hamilton warned against the possibility of Judges creating new policies based on personal preferences. • • • •

Interpret a law beyond its statutory framework to accomplish a policy objective Use an interpretation of a law to create a new right not clearly in the law or in the Constitution Overturn a law that believed to be detrimental without the law having violated the Constitution Uphold a law because of a preferred policy outcome of that law, even if the law conflicts with the Constitution

The President While the President's power to sign or veto legislation is enumerated in the Constitution, the informal powers are not outlined. • • • • • •

Issue an Executive Order Sign a bill that has passed both Houses Refuse to enforce existing Law Direct an executive agency to promulgate and enforce a new interpretation of a law Temporarily alter or suspend a law or legal protection during wartime Use the veto to prevent new law

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Presidents can influence these agencies by firing appointees. HOW MUCH POWER DOES Though technically part of the THE BUREAUCRACY HAVE? executive branch of government, the federal bureaucracies have The Constitution does not articulate how been called a “fourth branch of much authority a bureaucratic agency government” because they have a may or may not have. Typically, the law great deal of freedom to interpret that an agency is tasked with enforcing the laws in the manner they specifies what an agency such as the choose and to enforce them with OCR can and cannot do. the degree of vigor that they choose. This means that the bureaucracy may adopt a punitive stance or a laissez fair approach to enforcement. The bureaucracy is restricted by the Administrative Procedures Act. As we have seen in the case of Title IX, the bureaucracy’s authority has grown in recent years. Title IX’s transformation depicts the Office for Civil Rights as a lawmaker, enforcer, and interpreter of Title IX law. The OCR has added new requirements; judged compliance according to whether schools adopt their interpretations, and allocated punishments for failure to comply. The agency is the combination of legislative, executive, and judicial authority. According to Supreme Court Justice Roberts: Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.47

If the OCR interprets Title IX beyond its statutory language, it is also exercising legislative authority in potential violation of the separation of powers. In Federalist Paper 47, James Madison termed this “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,” as “tyranny.”48 Not only are bureaucrats largely unchecked by the other branches of government, they are also unelected

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and hidden from the public. Individual citizens rarely understand the work of the bureaucracy, so they have very few means of keeping them accountable short of voting against the President who appointed them. “Title IX is one of the nation’s most significant civil rights laws,”49 and will likely continue to be. Its story of unprecedented opportunities for women also teaches a cautionary tale. Legislation by fiat, whether executive, judicial, or bureaucratic, may not be the best way to protect the civil rights of women and men in perpetuity. If women’s rights are to be preserved, constitutional safeguards provided through the proper legislative channels are needed. The future of Title IX and of equality for males and females in the United States will be determined either by the growth of the discretionary bureaucracy or by the reassertion of the nation’s ordinary citizens and the law-making branch that represents them.

NOTES 1

2 3 4 5 6 7 8 9 10

11

12 13 14 15

Catherine E. Lhamon, Assistant Secretary of Education, and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, “Dear Colleague Letter: Transgender Students,” United States Department of Education, Office for Civil Rights and Department of Justice (May 13, 2016). All subsequent references to this document will cite the Transgender DCL. G.G. v. Gloucester County School Board, Case 4: 15-cv-00054-RGD-TEM, Document 8, Complaint, June 11, 2015, 2. Ibid. Ibid. Chase Strangio, “Caitlyn Jenner is Right: Trans Youth are Dying Because We Don’t Accept Them,” The American Civil Liberties Union, July 16, 2015. Ibid., p. 2. G.G. v. Gloucester County School Board, Case 4:15-cv-00054-RGD-TEM, Document 8, Complaint, June 11, 2015, 2, 14. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15–2056, 2016 WL 1567467, at *21 (4th Cir. Apr. 19, 2016). Transgender DCL. Court Order, G.G. v. Gloucester County School Board, (E.D. Va.), 4:15cv54 ( June 23, 2016), www.aclu.org/legal-document/gg-v-gloucester-county-schoolboard-order-granting-plaintiffs-motion-preliminary. State of Texas et al. v. United States of America, et al., 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016); State of Nebraska et al. v. United States of America et al., (D. Neb.) 4:16cv3117 (2016). Transgender DCL, 2. Ibid., 3. Ibid. G.G. ex rel. Grimm v. Gloucester County School Board, No. 15–2056, 2016 WL 1567467, at *21 (4th Cir. Apr. 19, 2016).

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16 17 18 19 20

21 22 23 24 25 26

27

28 29

30

31 32

Ibid., 1. Ibid., 2. Ibid., 1. Federal Register 40, No. 108 ( June 4, 1975): 24128–24145. G.G. v. Gloucester County School Board, (4th Cir.), No. 15: 2056 (April 19, 2016). Judge Niemeyer cites the following cases as evidence of the court’s recognition of a right to privacy allowing, and in some cases requiring, segregated facilities based upon sex in order to protect an individual’s right to privacy: Doe v. Luzerne County, 660 F.3d 169, 176–177 (3d Cir. 2011); Brannum v. Overton County. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008); Beard v. Whitmore Lake School District, 402 F.3d 598, 604 (6th Cir. 2005); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1989); Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993); United States v. Virginia, 518 U.S. 515, 550 n.19 (1996). Ruth Bader Ginsberg, “The Fear of the ERA,” Washington Post, Apr. 8, 1975, A21 Ibid. G.G. v. Gloucester County School Board, (4th Cir.), No. 15: 2056 (April 19, 2016). See Steven Pinker, The Blank Slate, (New York: Penguin Books, 2003). Jake Horowitz, “Woman behind Obama era protections for trans students speaks out against Trump,” The Movement, February 28, 2017. American Civil Liberties Union, “Aclu Statement on Revoking of Title IX Guidance for Transgender Students & Impact on Gavin Grimm Supreme Court Case,” February 22, 2017. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Though these are Title VII cases, Scalia, speaking for the majority in Oncale explains that “while same-sex harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII . . . statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits ‘discriminat[ion] . . . because of . . . sex.’ [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements.” Id. at 79–80. In other words, once sex stereotyping or same sex harassment is defined as a form of discrimination based upon sex, it would fall under the statute banning sex discrimination. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 561 U.S. 477 (2010). Task Force on Federal Regulation of Higher Education, “Recalibrating Regulation for Colleges and Universities,” Task Force on Federal Regulation of Higher Education, February 12, 2015. Edith Green, “The Road is Paved with Good Intentions: Title IX and What it is Not,” Speech delivered at Brigham Young University, Salt Lake City, Utah, January 25, 1977. Ibid. American Association of University Professors, “The History, Uses, and Abuses of Title IX,” 2016 Bulletin.

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33 34 35 36 37 38 39 40 41 42 43 44 45

46 47 48 49

Green, “The Road is Paved with Good Intentions.” Ibid. Ibid. Ibid. National Women’s Law Center, brief of amici curiae national women’s law center, et al., in support of respondent. Lisa Maatz, “AAUW Reacts to Trump Rescinding Transgender Guidance,” American Association of University Women, February 23, 2017. Ibid. Catharine A. MacKinnon, “In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education,” Yale Law Journal 125, 7 (2016). Adele P. Kimmel, “Title IX: An Imperfect but Vital Tool to Stop Bullying of LGBT Students,” Yale Law Journal 125, 2006 (2016), 2027. Evan Osnos, “President Trump’s First Term,” The New Yorker, September 26, 2016. Chuck McCutcheon and David Mark, “ ‘Elections Have Consequences,’ Does Obama regret saying that now?” Christian Science Monitor, November 21, 2014. Mark Schmitt, “Trump did not Break Politics,” The New York Times, January 4, 2016. See Philip Hamburger, Is Administrative Law Unlawful? (Chicago, IL: University of Chicago Press, 2014) and Philip Hamburger, The Administrative Threat (New York: Encounter Books, 2017). Marbury v. Madison, 5 U.S. 137 (1803). Arlington v. Fed. Commc’n Comm’n 569 U.S. 290 (2013). James Madison, Federalist No. 47, in The Federalist, ed. George W. Carey and James McClellan (Indianapolis, IN: Liberty Fund, 2001), 249. Maatz, “AAUW Reacts.”

Documents

DOCUMENT 1

Bernice R. Sandler

“Too Strong for a Woman”— The Five Words That Created Title IX 2000

B

ernice R. Sandler, “Too Strong for a Woman”—The Five Words That Created Title IX,” Equity and Excellence in Education 33 (2000): 9–13.

The year was 1969. I had been teaching part-time at the University of Maryland for several years during the time I worked on my doctorate and shortly after I finished it. There were seven openings in the department and I had just asked a faculty member, a friend of mine, why I was not even considered for any of the openings. It was not my qualifications; they were excellent. “But let’s face it,” he said, “You come on too strong for a woman.” My reaction? I went home and cried. I had no idea that this rejection would not only change my life but would change the lives of millions of women and girls because it would lead ultimately to the passage of Title IX, the law that prohibits sex discrimination in educational institutions receiving federal dollars. Instead, I bemoaned the fact that I had spoken out at staff meetings with suggestions for improving procedures. I lamented the times that I had discussed teaching and professional issues with faculty members. I regretted my participation in classes as a graduate student. In short, I accepted the assessment that I was “too strong for a woman.”

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It was my then husband who helped me understand what the words “too strong for a woman” meant. He labeled the department’s behavior as “sex discrimination”—a label that started me thinking. Was this really a question of my being “too strong?” After all there were many strong men in the department. Yet the label of “sex discrimination” was a new one for me and initially I was not ready to apply it to my not getting the position at Maryland. Like many women at that time, I was somewhat ambivalent about the women’s movement and halfway believed the press descriptions of its supporters as “abrasive,” “man-hating,” “radical,” and “unfeminine.” Surely I was not like that. In the next few months I had two more similar rejections. A research executive who interviewed me for a position spent nearly an hour explaining to me why he wouldn’t hire women because they stayed at home when their children were sick. (That my children were in high school was deemed irrelevant.) Then an employment agency counselor looked at my resume and told me that I was “not really a professional” but “just a housewife who went back to school.” Although later, in retrospect, I would discover other instances of sex discrimination in my life, at that point I had not consciously noticed it. Yet here were three incidents within a short period which I could not rationalize away. I began to think about the ramifications of discrimination and the burgeoning women’s movement and to explore how the law treated sex discrimination. Knowing that sex discrimination was immoral, I assumed it would also be illegal. But this was 1969. Although sex discrimination was indeed illegal in certain circumstances, I quickly discovered that none of the laws prohibiting discrimination covered sex discrimination in education. Title VII of the Civil Rights Act which prohibited discrimination in employment on the basis of race, color, religion, national origin and sex, excluded “educational institutions in their educational activities,” meaning faculty and administrators were exempt. Title VI of the same act prohibited discrimination on the basis of race, color and national origin in federally assisted programs, but did not cover sex discrimination. Thus students were not protected against sex discrimination. The Equal Pay Act prohibited discrimination in salaries on the basis of sex but exempted all professional and administrative employees, including faculty. The Fourteenth Amendment to the Constitution assures all persons “equal protection of the laws,” but at that time no case concerning discrimination against women in education had ever been decided in favor of women by the Supreme Court. I began to read more about the civil rights movement to see what African Americans had done to break down segregated school systems and

TOO STRONG FOR A WOMAN

employment discrimination, with the hope of learning what might be applicable to women’s issues. The breakthrough occurred when I was reading a report of the U.S. Commission on Civil Rights which examined the impact of antidiscrimination laws on race discrimination. The report described a presidential Executive Order prohibiting federal contractors from discrimination in employment on the basis of race, color, religion and national origin. There was a footnote, and being an academic, I quickly turned to the back of the report to read it. It stated that Executive Order 11246 had been amended by President Johnson, effective October 13, 1968, to include discrimination based on sex. Even though I was alone, I shrieked aloud with my discovery: I had made the connection that since most universities and colleges had federal contracts they were forbidden from discriminating in employment on the basis of sex. Yes, there was a legal route to combat sex discrimination even though few people knew it at the time. I called the Office of Federal Contract Compliance at the Department of Labor to be certain that sex discrimination was covered by the Executive Order. I was immediately connected to the Director, Vincent Macaluso who had been waiting for someone to use the Executive Order in regard to sex discrimination. We met, and together we planned the first complaint against universities and colleges, and the strategies to bring about enforcement of the Executive Order. Two months later under the auspices of the Women’s Equity Action League (WEAL) I began what was soon to become a national campaign to end discrimination in education and which eventually culminated in the passage of Title IX. On January 31, 1970 WEAL filed a historic class action complaint against all universities and colleges in the country with specific charges against the University of Maryland. The charges were filed with the U.S. Department of Labor under Executive Order 11246, as amended, and asked for an immediate compliance review of all institutions holding federal contracts. Because these were administrative charges filed with a federal agency rather than a lawsuit filed in court, it was not necessary for me to be an attorney. There were no special forms to fill out. Individuals did not need to be named; the charges were filed on behalf of all women in higher education. Thus, the complaint did not name me or describe the incident in which I was involved. Until that time the Executive Order had been used almost exclusively in cases concerning blue-collar workers, and although the Order had covered sex discrimination since October 1968, there had been virtually no enforcement by the government until WEAL began its campaign. The WEAL complaint charged “an industry-wide pattern” of discrimination against women in the academic community and asked for an

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investigation in the following areas: admission quotas to undergraduate and graduate schools, financial assistance, hiring practices, promotions and salary differentials. At Macaluso’s advice, I put together about 80 pages of documentation to accompany the complaint. He pointed out that a large appendix to the complaint was important; even if no one read it, they would assume that the many pages confirmed the charges. I included some articles and the limited data available, including a study of women faculty at the University of Chicago written by Jo Freeman, then a graduate student in sociology; and a study of women faculty at Columbia University by the Columbia Women’s Liberation group. I also included similar data I had gathered at the University of Maryland, posing as a researcher. I underlined key passages in the document with a thick pen to catch the attention of anyone leafing through the materials. In those days xerox machines were a rarity. With the help of a friend at the Ford Foundation, 200 copies of the 80-page complaint were photocopied and sent to the press and others. Macaluso had suggested that copies of the complaint and appendix also be sent to selected members of the Congress, along with a handwritten note requesting that they write the Secretary of Labor asking him to enforce his own regulations governing the Executive Order; investigate educational institutions holding federal contracts to ensure that there was no sex discrimination; and keep the member informed of the progress of the investigations. Within a few weeks more than 20 members of Congress had contacted the Secretary of Labor. In the next few months, the limited press coverage about WEAL’s filing began to electrify women throughout the academic community, particularly when they realized I could file charges against their institution without naming them. Many women faculty members contacted me, sometimes with personal stories of discrimination but almost always with a concern about the general problem of discrimination in their institution in general. In order for me to file a complaint against their institution under the Executive Order, I would ask the women to gather information, especially about the number and rank of men compared to women in a few selected departments. I then compared this information to data about the “availability of women,” usually the number and percentage of women doctorates in those fields. The result was striking: many departments had no women at all, even though women often obtained as many as 25 percent of the doctorates in those fields. The pattern was clear: the higher the rank, the fewer the women. The more prestigious the field, the department, or institution,

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the fewer the women. At the administrative ranks, women were a rarity; at that time even many women’s colleges were headed by men. I used to quip that, were it not for the Catholic sisters who headed their own women’s colleges, the number of whooping cranes would exceed the number of women who were college presidents. With the exception of the first charge, which was filed by the President of WEAL, I filed the others as chair of WEAL’s Action Committee for Federal Contract Compliance in Education. (I was the entire committee). During the next two years, I filed charges against approximately 250 institutions. Another 100 or so were filed by other individuals and organizations such as the National Organization for Women (NOW). Among the institutions charged by WEAL were the University of Wisconsin, the University of Minnesota, Columbia University, the University of Chicago, and the entire state university and college systems of California, New Jersey and Florida. However, simply filing charges would not be enough to get the federal government to begin enforcing the Executive Order. As women provided me with information and I filed against their institutions, I asked them to write their representatives in the House and Senate, and encourage others to do the same. The women were to ask their representatives to contact the Secretary of Labor and the Secretary of Health, Education and Welfare (HEW), requesting that they enforce the Executive Order and keep the Congressperson informed about the investigations. In addition to putting Congressional pressure on the two departments, the letter-writing campaign was aimed at sensitizing Congressional staff about sex discrimination in education. At one point we generated so much mail that HEW had to assign a full-time person only to handle the Congressional mail. More than 300 Congressional letters were received by the Department of Labor in a short period of time. On March 9, 1970, Rep. Martha Griffiths (MI) who was on WEAL’s national advisory board, gave the first speech in the U.S. Congress on discrimination against women in education, based in large measure on the information I gave her. She criticized the government for not enforcing its own regulations with regard to sex discrimination in universities and colleges. Her speech, the barrage of Congressional letters to the Secretaries of Labor and Health, Education and Welfare and the numerous meetings women’s organizations such as WEAL and NOW had with the Departments of Labor and HEW paid off. Three weeks later, the first contract compliance investigation began at Harvard University. In June 1970, the Department of Labor issued its long awaited Sex Discrimination Guidelines for federal contractors and HEW issued a memorandum to all field personnel to routinely include sex discrimination in all contract

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compliance investigations. HEW also hired its first female compliance investigator. But something else was happening in the months following the initial complaints. Rep. Edith Green (OR) (also a member of WEAL’s national advisory board) had long been aware of sex discrimination in higher education, and the lack of coverage by civil rights laws. As chair of the subcommittee that dealt with higher education, she was in a unique position to shape new legislation. She had been urged to hold hearings by Phineas Indritz (a Congressional staff member who “dabbled” in civil rights issues) but she was hesitant to do so because there was little data available and apparently no constituency whom she could count on to testify. It was a time when there were virtually no books and only a few articles that addressed the issue of discrimination against women in education. No conferences had been held to examine the issue. There was little research or data, and barely a handful of unnoticed women’s studies courses. There were no campus commissions on the status of women and only a few institutions had even begun to examine the status of women on their campus. Women’s caucuses in the disciplinary organizations were just beginning to develop. The issue of sex discrimination in education was so new that I received many letters from women and men asking me if it was true that such discrimination existed, and if so, could I send them proof. With all of the WEAL filings I sent to her, Rep. Green now had information about sex discrimination in higher education. Because I knew almost everyone who was actively working to end sex discrimination in education I was able to provide Rep. Green with a list of people who could testify and provide the information needed to justify new legislation to prohibit sex discrimination. She agreed to draft legislation and to hold hearings. The first Congressional hearings on the education and employment of women were held by Rep. Green in June and July of 1970. This was the official beginning of the bill that eventually became Title IX. The original bill, part of a larger measure on higher education, proposed to amend Title VII of the Civil Rights Act to cover employees in educational institutions, Title VI to cover sex discrimination in federally assisted programs, and the Equal Pay Act to cover executives, administrators and professionals. I supplied the names of women (and some men) who would be willing to testify as well as the names of relevant organizations. I also testified. Because the original bill covered employment in general, there was a wide array of testimony documenting discrimination in employment,

TOO STRONG FOR A WOMAN

the professions, civil service, want ads, and education. No one from the official world of higher education testified, although they were invited to do so. A representative of the American Council in Education told the subcommittee counsel, “There is no sex discrimination in higher education,” and even if it did exist, it wasn’t “a problem.” Apparently, Rep. Green’s bill was not seen as being of much interest to, or having any major implications for, educational institutions. There were seven days of hearings. Except for Rep. Green, who was in attendance throughout the hearings, only a few subcommittee members made short token appearances. Federal officials testified that they supported the aim of the bill but not the bill “in its present form”—a euphemism for opposition. Women employed in educational institutions across the country testified in support of the bill and provided data. Rep. Shirley Chisholm (NY) (another WEAL national advisory board member) testified that during her entire political history, her sex had been “a far greater handicap than [her] skin pigmentation.” Other African-American women and female members of the Congress also testified in support of the bill. Much of the testimony dealt with the employment of women both in and outside of higher education; there was some testimony (but not much) about women students, mainly focusing on admissions and counseling. When the hearings were finished, I was asked by Rep. Green to join the subcommittee staff to put together the written record of the hearings. (Thus I became the first person ever appointed to the staff of a Congressional committee to work specifically in the area of women’s rights.) The seven days of hearings resulted in a two-volume set of nearly 1300 pages. Because at that time there was so little written about women in employment and education, I appended numerous documents. This appendix material, which represented a sizeable portion of the information on women available at the time, included 14 studies of women at colleges and universities. As a result, the hearing record became a solid source of information about women for some time to come. Usually only a few hundred copies of hearings are printed but Rep. Green received permission to print 6000 copies. She sent a copy with a note to every member of the Congress. I drew up a list for her to send copies to prominent organizations and individuals in higher education, and the press. The widespread distribution of the hearings, the charges against institutions and the letters sent to Congress by women from all over the country set the stage for support of legislation to end sex discrimination in education. The hearings probably did more than anything else to make sex discrimination in education a legitimate issue. When administrators or faculty members would deny the existence of sex discrimination in

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academe, women (and men) could point out that this was not a frivolous issue and that Congress itself had held days of hearings on this important subject. Thus the hearings, as well as the continuing filings of charges against institutions under the Executive Order, gave women throughout academe hope and courage to become advocates for women and change within their institution. Higher education itself, even before the passage of Title IX, began to acknowledge that there was some validity to the issue, and numerous institutions appointed committees to study the problem and develop recommendations for their campuses. At some point after the hearings, higher education began to recognize that the bill might affect their institutions. Officials from Harvard, Princeton, Yale and Dartmouth were concerned that they might have to admit women in equal numbers. (The first three institutions had recently admitted women but had strict quota restricting their numbers to about 30 percent; Dartmouth was planning to admit women in the near future.) These institutions lobbied successfully for an exemption in the bill for private undergraduate admissions, claiming that different sex ratios were best for learning and that individual institutions knew what the best ratios were. Of course there was no data to support these allegations but these institutions and their alumni in the Congress were powerful. The amendment stood, although Rep. Green made sure that once students of both sexes were admitted to an institution there could be no discrimination against them. The amendment also meant private men’s and women’s colleges would not be prohibited from remaining a single-sex institutions. There was no opposition to this provision. The service academies were also exempted. An exemption for admission to publicly-supported singlesex undergraduate institutions was also added to the bill. The bill was ably managed in the Senate by Senator Birch Bayh (IN) who was also a member of WEAL’s national advisory board. A few people (very few) noticed that athletics might be affected by the bill, and so there was a discussion on the floor of the Senate about whether the bill required educational institutions to allow women to play on football teams. Having inserted that notion into the legislative history, higher education retreated, apparently unaware that Title IX would have a profound impact on athletics even if women were kept off football teams. Because colleges and universities had only a rudimentary understanding of the problem of discrimination at the time, the higher education community apparently believed it had taken care of what they saw as the major impacts of the bill—admissions and football. Higher education did not lobby for or against the bill, and because it was attached to a higher education measure, the elementary and secondary education community was largely unaware of the bill.

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Also unnoticed in Rep. Green’s bill was an amendment to the Equal Pay Act, which opened up coverage to administrators, professionals and executives. Because the wording of the amendment was artfully crafted by Morag Simchak (a WEAL member who worked at the Department of Labor)—it was phrased as a technical amendment—it was difficult to realize, from a quick reading of the bill, what it did. As a result, the Department of Labor, which has enforcement responsibility for the Equal Pay Act, was unaware until after passage that their jurisdiction was to be significantly expanded. As the bill drew close to passage, a group of women (including myself ) who represented women’s organizations, met with Rep. Green to offer our lobbying services. She informed us that it would be better it we did not lobby because there was no opposition to the bill, and the less that people knew about the bill, the better its chances were for passage. We were skeptical, but she was absolutely right. In the spring of 1972, two years after the hearings, a portion of Rep. Green’s original bill became law when Title VII of the Civil Rights Act was amended by Congress in a separate action to cover all employees in educational institutions. Initially, Rep. Green had also initially sought to amend Title VI of the Civil Rights Act (prohibiting discrimination on the basis of race, color and national origin in all federally-funded activities) to include sex discrimination. However, at the urging of African-American leaders and others, who were worried that opening Title VI for amendment could weaken its coverage, she proposed a separate and new title, which became Title IX. In its final form, Title IX was identical to that of Title VI, except that it was restricted to educational activities, contained additional exemptions and included the amendment to the Equal Pay Act. On June 23, 1972, Title IX of the Education Amendments of 1972, was passed by the Congress and on July 1, was signed into law by President Richard Nixon. The historic passage of Title IX was hardly noticed. I remember one or two sentences in the Washington papers. It would be another three years before the regulation for Title IX would be issued, and then another year before it would take effect. By then, higher education and the country understood that Title IX was going to change the landscape of higher education forever. The entire WEAL campaign had cost a few hundred dollars in postage, but hours and hours of time from women in academe who patiently and painstakingly gathered and analyzed data about men and women in their institution, who pressed their Representatives and Senators for action, organized together and became advocates for change. They are the true unsung heroes of this story. They took enormous risks. Many did not

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have tenure and as a result of their activities never received it and were lost to the higher educational community. Some became lawyers or found other successful careers. A few went on welfare. It was the words “too strong for a woman” that turned me into a feminist although I did not know it at the time. I have often wondered what would have happened if I had been considered, for a position at Maryland. I might still be a part-time faculty member. Title IX, or something like it, would have eventually been enacted but probably in a weaker version with more exemptions, because of subsequent backlash. For myself, I had no idea what I was getting into. I had no legal, political or organizing experience and had no idea that the political and legal action I began would force open the issue of sex discrimination on campus. I was extraordinarily naive; I believed that if we passed Title IX it would only take a year or two for all the inequities based on sex to be eliminated. After two years, I upped my estimate to five years, then to ten, then to twenty five, until I finally realized that we were trying to change very strong patterns of behavior and belief, and that changes would take more than my lifetime to accomplish. The struggle for educational equity is by no means over, despite the enormous progress that has been made. As women look to the future with greater understanding of the politics of change, their mood is best expressed by a paraphrase of a famous Biblical quotation, written by Mary Chagnon: And they shall beat their pots and pans into printing presses, And weave their cloth into protest banners, Nations of women shall lift up their voices with other women, Neither shall they accept discrimination anymore.

Because of Title IX, the campus has changed irretrievably, and the world of higher education, and the nation will never again be the same.

DOCUMENT 2

United States Congress

Title IX The Educational Amendments 1972

P

ublic Law No. 92–318, 86 Stat. 235 ( June 23, 1972), codified at 20 U.S.C. §§ 1681–1688.

TITLE 20 U.S.C. SECTIONS 1681–1688: § 1681. Sex (a) Prohibition against discrimination; exceptions 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, except that: (1) Classes of educational institutions subject to prohibition in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;

(2) Educational institutions commencing planned change in admissions in regard to admissions to educational institutions, this section shall not apply

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(A) for one year from June 23, 1972, nor for six years after June 23, 1972, in the case of an educational institution, which has begun the process of changing from being an institution, which admits only students of one sex to being an institution, which admits students of both sexes, but only if it is carrying out a plan for such a change, which is approved by the Secretary of Education or (B) for seven years from the date an educational institution begins the process of changing from being an institution which admits only students of only one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education, whichever is the later;

(3) Educational institutions of religious organizations with contrary religious tenets this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;

(4) Educational institutions training individuals for military services or merchant marine this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine;

(5) Public educational institutions with traditional and continuing admissions policy in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex;

(6) Social fraternities or sororities; voluntary youth service organizations this section shall not apply to membership practices— (A) of a social fraternity or social sorority, which is exempt from taxation under section 501(a) of title 26, the active

TITLE IX THE EDUCATIONAL AMENDMENTS

membership of which consists primarily of students in attendance at an institution of higher education, or (B) of the Young Men’s Christian Association, Young Women’s Christian Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations, which are so exempt, the membership of which has traditionally been limited to persons of one sex and principally to persons of less than nineteen years of age;

(7) Boy or Girl conferences this section shall not apply to— (A) any program or activity 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; or (B) any program or activity of any secondary school or educational institution specifically for— (i)

(ii)

the promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or the selection of students to attend any such conference;

(8) Father–son or mother–daughter activities at educational institutions this section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex; and

(9) Institution of higher education scholarship awards in “beauty” pageants this section shall not apply with respect to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received such award in any pageant in which the attainment of such award is based upon a combination of factors related to the personal appearance, poise, and talent of such individual and in which participation is limited to individuals of one sex only, so long as such pageant is in compliance with other nondiscrimination provisions of Federal law.

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(b) Preferential or disparate treatment because of imbalance in participation or receipt of Federal benefits; statistical evidence of imbalance Nothing contained in subsection (a) of 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 federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.

(c) “Educational institution” defined For purposes of this chapter an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department.

DOCUMENT 3

Department of Health, Education, and Wellfare

Title IX Implementing Regulations 1975

F

ederal Register 40, No.108 ( June 4, 1975): 24128–24145. Footnotes throughout the text have been removed for the sake of brevity.

SUBPART C—DISCRIMINATION ON THE BASIS OF SEX IN ADMISSION AND RECRUITMENT PROHIBITED § 106.21 Admission. (a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies, except as provided in §§ 106.16 and 106.17. (b) Specific prohibitions. (1) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies shall not: (i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise; (ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or (iii) Otherwise treat one individual differently from another on the basis of sex.

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(2) A recipient shall not administer or operate any test or other criterion for admission which has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria which do not have such a disproportionately adverse effect are shown to be unavailable. (c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies: (1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant which treats persons differently on the basis of sex; (2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice which so discriminates or excludes; (3) Shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and (4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by this part. (Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.22 Preference in admission. A recipient to which this subpart applies shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity which admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of this subpart. (Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

TITLE IX IMPLEMENTING REGULATIONS

§ 106.23 Recruitment. (a) Nondiscriminatory recruitment. A recipient to which this subpart applies shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to § 106.3(a), and may choose to undertake such efforts as affirmative action pursuant to § 106.3(b). (b) Recruitment at certain institutions. A recipient to which this subpart applies shall not recruit primarily or exclusively at educational institutions, schools or entities which admit as students only or predominantly members of one sex, if such actions have the effect of discriminating on the basis of sex in violation of this subpart. (Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

SUBPART D—DISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES PROHIBITED § 106.41 Athletics. (a) General. 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 any such athletics separately on such a basis. (b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, 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 a team in a particular sport for members of one sex but 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 this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

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(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practicem and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

DOCUMENT 4

United States Congress

Administrative Procedure Act 1946

5

U.S.C.A. §§ 501 et seq.

§ 552. PUBLIC INFORMATION; AGENCY RULES, OPINIONS, ORDERS, RECORDS, AND PROCEEDINGS (a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public— (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of

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general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. . . .

§ 553. RULE MAKING (a) This section applies, according to the provisions thereof, except to the extent that there is involved— (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

ADMINISTRATIVE PROCEDURE ACT

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except – (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

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DOCUMENT 5

Department of Health, Eduation, and Welfare

A Policy Interpretation: Title IX and Intercollegiate Athletics 1979

O

ffice of the Secretary, “A Policy Interpretation: Title IX and Intercollegiate Athletics,” Department of Health, Education, and Welfare Office for Civil Rights (December 11, 1979), also at Federal Register 44, No. 239 (Dec. 11, 1979). Footnotes throughout the text have been removed for the sake of brevity.

I. LEGAL BACKGROUND A. The Statute Section 901(a) of Title IX of the Education Amendments of 1972 provides: •

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.

Section 844 of the Education Amendments of 1974 further provides: •

The Secretary [of HEW] shall prepare and publish proposed regulations implementing the provisions of Title IX of the Education Amendments of 1972 relating to the prohibition of sex discrimination in federally assisted education programs which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.

TITLE IX AND INTERCOLLEGIATE ATHLETICS

B. The Regulation The regulation implementing Title IX is set forth, in pertinent part, in the Policy Interpretation below. The regulation established a three year transition period to give institutions time to comply with its equal athletic opportunity requirements. That transition period expired on July 21, 1978.

II. PURPOSE OF POLICY INTERPRETATION By the end of July 1978, the Department had received nearly 100 complaints alleging discrimination in athletics against more than 50 institutions of higher education. In attempting to investigate these complaints, and to answer questions from the university community, the Department determined that it should provide further guidance on what constitutes compliance with the law. Accordingly, this Policy Interpretation explains the regulation so as to provide a framework within which the complaints can be resolved, and to provide institutions of higher education with additional guidance on the requirements for compliance with Title IX in intercollegiate athletic programs.

III. SCOPE OF APPLICATION This Policy Interpretation is designed specifically for intercollegiate athletics. However, its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by regulation. Accordingly, the Policy Interpretation may be used for guidance by the administrators of such programs when appropriate. This policy interpretation applies to any public or private institution, person or other entity that operates an educational program or activity which receives or benefits from financial assistance authorized or extended under a law administered by the Department.

IV. SUMMARY OF FINAL POLICY INTERPRETATION The final Policy Interpretation clarifies the meaning of “equal opportunity” in intercollegiate athletics. It explains the factors and standards set out in the law and regulation which the Department will consider in determining whether an institution’s intercollegiate athletics program complies with the law and regulations. It also provides guidance to assist institutions in

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determining whether any disparities which may exist between men’s and women’s programs are justifiable and nondiscriminatory. The Policy Interpretation is divided into three sections: •

•

•

Compliance in Financial Assistance (Scholarships) Based on Athletic Ability: Pursuant to the regulation, the governing principle in this area is that all such assistance should be available on a substantially proportional basis to the number of male and female participants in the institution’s athletic program. Compliance in Other Program Areas (Equipment and supplies; games and practice times; travel and per diem, coaching and academic tutoring; assignment and compensation of coaches and tutors; locker rooms, and practice and competitive facilities; medical and training facilities; housing and dining facilities; publicity; recruitment; and support services): Pursuant to the regulation, the governing principle is that male and female athletes should receive equivalent treatment, benefits, and opportunities. Compliance in Meeting the Interests and Abilities of Male and Female Students: Pursuant to the regulation, the governing principle in this area is that the athletic interests and abilities of male and female students must be equally effectively accommodated.

VII. THE POLICY INTERPRETATION This Policy Interpretation clarifies the obligations which recipients of Federal aid have under Title IX to provide equal opportunities in athletic programs. In particular, this Policy Interpretation provides a means to assess an institution’s compliance with the equal opportunity requirements of the regulation which are set forth at 45 CFR 88.37(c) and 88.4a(c).

A. Athletic Financial Assistance (Scholarships) 1. The Regulation. Section 86.37(c) of the regulation provides: [Institutions] must provide reasonable opportunities for such award (of financial assistance) for member of each sex in proportion to the number of students of each sex participating in inter-collegiate athletics.

2. The Policy—The Department will examine compliance with this provision of the regulation primarily by means of a financial comparison

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to determine whether proportionately equal amounts of financial assistance (scholarship aid) are available to men’s and women’s athletic programs. The Department will measure compliance with this standard by dividing the amounts of aid available for the members of each sex by the numbers of male or female participants in the athletic program and comparing the results. Institutions may be found in compliance if this comparison results in substantially equal amounts or if a resulting disparity can be explained by adjustments to take into account legitimate, nondiscriminatory factors. Two such factors are: a.

At public institutions, the higher costs of tuition for students from out-of state may in some years be unevenly’ distributed between men’s and women’s programs. These differences will be considered nondiscriminatory if they are not the result of policies or practices which disproportionately limit the availability of out-of-state scholarships to either men or women. b. An institution may make reasonable professional decisions concerning the awards most appropriate for program development. For example, team development initially may require spreading scholarships over as much as a full generation [four years) of student athletes. This may result in the award of fewer scholarships in the first few years than would be necessary to create proportionality between male and female athletes. 3. Application of the Policy a.

This section does not require a proportionate number of scholarships for men and women or individual scholarships of equal dollar value. It does mean that the total amount of scholarship aid made available to men and women must be substantially proportionate to their participation rates. b. When financial assistance is provided in forms other than grants, the distribution of non-grant assistance will also be compared to determine whether equivalent benefits are proportionately available to male and female athletes. A disproportionate amount of work-related aid or loans in the assistance made available to the members of one sex, for example, could constitute a violation of Title IX. 4. Definition—For purposes of examining compliance with this Section, the participants will be defined as those athletes: a.

Who are receiving the institutionally-sponsored support normally provided to athletes competing at the institution involved, e.g.,

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coaching, equipment, medical and training room services, on a regular basis during a sport’s season; and b. Who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season: and c. Who are listed on the eligibility or squad lists maintained for each sport, or d. Who, because of injury, cannot meet a, b, or c above but continue to receive financial aid on the basis of athletic ability.

B. Equivalence in Other Athletic Benefits and Opportunities 1. The Regulation The Regulation requires that recipients that operate or sponsor interscholastic, intercollegiate, club or intramural athletics. “provide equal athletic opportunities for members of both sexes.” In determining whether an institution is providing equal opportunity in intercollegiate athletics the regulation requires the Department to consider, among others, the following factors: (1)

Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) Provision and maintenance of equipment and supplies; (3) Scheduling of games and practice times; (4) Travel and per diem expenses; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training services and facilities; (9) Provision of housing and dining services and facilities; and (10) Publicity. Section 86.41(c) also permits the Director of the Office for Civil Rights to consider other factors in the determination of equal opportunity. Accordingly, this Section also addresses recruitment of student athletes and provision of support services. This list is not exhaustive. Under the regulation, it may be expanded as necessary at the discretion of the Director of the Office for Civil Rights.

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2. The Policy The Department will assess compliance with both the recruitment and the general athletic program requirements of the regulation by comparing the availability, quality and kinds of benefits, opportunities, and treatment afforded members of both sexes. Institutions will be in compliance if the compared program components are equivalent, that is, equal or equal in effect. Under this standard, identical benefits, opportunities, or treatment are not required, provided the overall effects of any differences is negligible. If comparisons of program components reveal that treatment, benefits, or opportunities are not equivalent in kind, quality or availability, a finding of compliance may still be justified if the differences are the result of nondiscriminatory factors. Some of the factors that may justify these differences are as follows: a.

Some aspects of athletic programs may not be equivalent for men and women because of unique aspects of particular sports or athletic activities. Generally, these differences will be the result of factors that are inherent to the basic operation of specific sports. Such factors may include rules of play, nature/replacement of equipment, rates of injury resulting from participation, nature of facilities required for competition, and the maintenance/upkeep requirements of those facilities. For the most part, differences involving such factors will occur in programs offering football, and consequently these differences will favor men. If sport-specific needs are met equivalently in both men’s and women’s programs, however, differences in particular program components will be found to be justifiable. b. Some aspects of athletic programs may not be equivalent for men and women because of legitimately sex-neutral factors related to special circumstances of a temporary nature. For example, large disparities in recruitment activity for any particular year may be the result of annual fluctuations in team needs for first-year athletes. Such differences are justifiable to the extent that they do not reduce overall equality of opportunity. c. The activities directly associated with the operation of a competitive event in a single-sex sport may, under some circumstances, create unique demands or imbalances in particular program components. Provided any special demands associated with the activities of sports involving participants of the other sex are met to an equivalent degree, the resulting differences may be found nondiscriminatory. At many schools, for example, certain sports notably football and men’s basketball traditionally draw large crowds. Since the costs of managing

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an athletic event increase with crowd size, the overall support made available for event management to men’s and women’s programs may differ in degree and kind. These differences would not violate Title IX if the recipient does not limit the potential for women’s athletic events to rise in spectator appeal and if the levels of event management support available to both programs are based on sex-neutral criteria (e.g. facilities used, projected attendance, and staffing needs). d. Some aspects of athletic programs may not be equivalent for men and women because institutions are undertaking voluntary affirmative actions to overcome effects of historical conditions that have limited participation in athletics by the members of one sex.

3. Application of the Policy—General Athletic Program Components C a.

Equipment and Supplies (‘ 86.41(c)(2)). Equipment and supplies include but are not limited to uniforms, other apparel, sport-specific equipment and supplies, general equipment and supplies, instructional devices, and conditioning and weight training equipment. Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) (2) (3) (4)

The quality of equipment and supplies: The amount of equipment and supplies; The suitability of equipment and supplies: The maintenance and replacement of the equipment and supplies; and (5) The availability of equipment and supplies. b. Scheduling of Games and Practice Times (‘ 86.41(c)(3)). Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) (2) (3) (4) (5)

The number of competitive events per sport; The number and length of practice opportunities; The time of day competitive events are scheduled; The time of day practice opportunities are scheduled; and The opportunities to engage in available pre-season and postseason competition.

c. Travel and Per Diem Allowances (‘ 86.41(c)(4)). Compliance will be assessed by examining, among other factors, the equivalence for men and women of:

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(1) (2) (3) (4) (5)

Modes of transportation; Housing furnished during travel: Length of stay before and after competitive events: Per diem allowances: and Dining arrangements.

d. Opportunity to Receive Coaching and Academic Tutoring (‘ 86.41(c) (5)). (1) Coaching Compliance will be assessed by examining, among other factors: (a) Relative availability of full-time coaches: (b) Relative availability of part-time and assistant coaches; and (c) Relative availability of graduate assistants. (2) Academic tutoring- Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (a) The availability of tutoring; and (b) Procedures and criteria for obtaining tutorial assistance. e. Assignment and Compensation of Coaches and Tutors (‘ 86.41(c)(6)). In general, a violation of Section 86.41(c)(6) will be found only where compensation or assignment policies or practices deny male and female athletes coaching of equivalent quality, nature, or availability. Nondiscriminatory factors can affect the compensation of coaches. In determining whether differences are caused by permissible factors, the range and nature of duties, the experience of individual coaches, the number of participants for particular sports, the number of assistant coaches supervised, and the level of competition will be considered. Where these or similar factors represent valid differences in skill, effort, responsibility or working conditions they may, in specific circumstances, justify differences in compensation. Similarly, there may be unique situations in which a particular person may possess such an outstanding record of achievement as to justify an abnormally high salary. (1) Assignment of Coaches—Compliance will be assessed by examining, among other factors, the equivalence for men’s and women’s coaches of: (a) Training, experience, and other professional qualifications; (b) Professional standing.

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(2) Assignment of Tutors-Compliance will be assessed by examining, among other factors, the equivalence for men’s and women’s tutors of: (a) Tutor qualifications; (b) Training, experience, and other qualifications. (3) Compensation of Coaches—Compliance will be assessed by examining, among other factors, the equivalence for men’s and women’s coaches of: (a) (b) (c) (d) (e) (f ) (g)

Rate of compensation (per sport, per season); Duration of contracts; Conditions relating to contract renewal; Experience; Nature of coaching duties performed; Working conditions; and Other terms and conditions of employment.

(4) Compensation of Tutors—Compliance will be assessed by examining, among other factors, the equivalence for men’s and women’s tutors of: (a) (b) (c) (d) (e) f.

Hourly rate of payment by nature subjects tutored; Pupil loads per tutoring season; Tutor qualifications; Experience; Other terms and conditions of employment.

Provision of Locker Rooms, Practice and Competitive Facilities (‘ 86.41(c)(7)). Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) Quality and availability of the facilities provided for practice and competitive events; (2) Exclusivity of use of facilities provided for practice and competitive events; (3) Availability of locker rooms; (4) Quality of locker rooms; (5) Maintenance of practice and competitive facilities; and (6) Preparation of facilities for practice and competitive events.

g. Provision of Medical and Training Facilities and Services (‘ 86.41(c) (8)).

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Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) (2) (3) (4) (5)

Availability of medical personnel and assistance; Health, accident and injury insurance coverage; Availability and quality of weight and training facilities; Availability and quality of conditioning facilities; and Availability and qualifications of athletic trainers.

h. Provision of Housing and Dining Facilities and Services (‘ 86.41(c)(9). Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) Housing provided; (2) Special services as part of housing arrangements (e.g., laundry facilities, parking space, maid service). i.

Publicity (‘ 86.41(c)(10)). Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) Availability and quality of sports information personnel; (2) Access to other publicity resources for men’s and women’s programs; and (3) Quantity and quality of publications and other promotional devices featuring men’s and women’s programs.

4. Application of the Policy-Other Factors (‘ 86.41(c)). a.

Recruitment of Student Athletes. The athletic recruitment practices of institutions often affect the overall provision of opportunity to male and female athletes. Accordingly, where equal athletic opportunities are not present for male and female students, compliance will be assessed by examining the recruitment practices of the athletic programs for both sexes to determine whether the provision of equal opportunity will require modification of those practices. Such examinations will review the following factors: (1) Whether coaches or other professional athletic personnel in the programs serving male and female athletes are provided with substantially equal opportunities to recruit; (2) Whether the financial and other resources made available for recruitment in male and female athletic programs are equivalently adequate to meet the needs of each program; and

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(3) Whether the differences in benefits, opportunities, and treatment afforded prospective student athletes of each sex have a disproportionately limiting effect upon the recruitment of students of either sex. b. Provision of Support Services. The administrative and clerical support provided to an athletic program can affect the overall provision of opportunity to male and female athletes, particularly to the extent that the provided services enable coaches to perform better their coaching functions. In the provision of support services, compliance will be assessed by examining, among other factors, the equivalence of: (1) The amount of administrative assistance provided to men’s and women’s programs; (2) The amount of secretarial and clerical assistance provided to men’s and women’s programs.

5. Overall Determination of Compliance. The Department will base its compliance determination under 86.41(c) of the regulation upon an examination of the following: a.

Whether the policies of an institution are discriminatory in language or effect; or b. Whether disparities of a substantial and unjustified nature exist in the benefits, treatment, services, or opportunities afforded male and female athletes in the institution’s program as a whole; or c. Whether disparities in benefits, treatment, services, or opportunities in individual segments of the program are substantial enough in and of themselves to deny equality of athletic opportunity.

C. Effective Accommodation of Student Interests and Abilities. 1. The Regulation The regulation requires institutions to accommodate effectively the interests and abilities of students to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes. Specifically, the regulation, at 86.41(c)(1), requires the Director to consider, when determining whether equal opportunities are available.

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Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes. Section 86.41(c) also permits the Director of the Office for Civil Rights to consider other factors in the determination of equal opportunity. Accordingly, this section also addresses competitive opportunities in terms of the competitive team schedules available to athletes of both sexes.

2. The Policy The Department will assess compliance with the interests and abilities section of the regulation by examining the following factors: a. The determination of athletic interests and abilities of students; b. The selection of sports offered; and c. The levels of competition available including the opportunity for team competition.

3. Application of the Policy C Determination of Athletic Interests and Abilities Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided: a.

The processes take into account the nationally increasing levels of women’s interests and abilities; b. The methods of determining interest and ability do not disadvantage the members of an underrepresented sex; c. The methods of determining ability take into account team performance records; and d. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.

4. Application of the Policy—Selection of Sports. In the selection of sports, the regulation does not require institutions to integrate their teams nor to provide exactly the same choice of sports to men and women. However, where an institution sponsors a team in a particular sport for members of one sex, it may be required either to permit the excluded sex to try out for the team or to sponsor a separate team for the previously excluded sex.

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a.

Contact Sports—Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: (1) The opportunities for members of the excluded sex have historically been limited; and (2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.

b. Non-Contact Sports—Effective accommodation means that if an institution sponsors a team for members of one sex in a non-contact sport, it must do so for members of the other sex under the following circumstances: (1) The opportunities for members of the excluded sex have historically been limited; (2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team; and (3) Members of the excluded sex do not possess sufficient skill to be selected for a single integrated team, or to compete actively on such a team if selected.

5. Application of the Policy—Levels of Competition In effectively accommodating the interests and abilities of male and female athletes, institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities. a.

Compliance will be assessed in any one of the following ways: (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing

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practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. b. Compliance with this provision of the regulation will also be assessed by examining the following: (1) Whether the competitive schedules for men’s and women’s teams, on a program-wide basis, afford proportionally similar numbers of male and female athletes equivalently advanced competitive opportunities; or (2) Whether the institution can demonstrate a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex. c. Institutions are not required to upgrade teams to intercollegiate status or otherwise develop intercollegiate sports absent a reasonable expectation that intercollegiate competition in that sport will be available within the institution’s normal competitive regions. Institutions may be required by the Title IX regulation to actively encourage the development of such competition, however, when overall athletic opportunities within that region have been historically limited for the members of one sex.

6. Overall Determination of Compliance The Department will base its compliance determination under 86.41(c) of the regulation upon a determination of the following: a.

Whether the policies of an institution are discriminatory in language or effect; or b. Whether disparities of a substantial and unjustified nature in the benefits, treatment, services, or opportunities afforded male and female athletes exist in the institution’s program as a whole; or c. Whether disparities in individual segments of the program with respect to benefits, treatment, services, or opportunities are substantial enough in and of themselves to deny equality of athletic opportunity. Likewise, substantial amounts have been provided for the recruitment of male athletes, but little funding has been made available for recruitment of female athletes.

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Congressional testimony on Title IX and subsequent surveys indicates that discrepancies also exist in the opportunity to receive coaching and in other benefits and opportunities, such as the quality and amount of equipment, access to facilities and practice times, publicity, medical and training facilities, and housing and dining facilities.

DOCUMENT 6

Supreme Court of the United States

Cannon v. University of Chicago 1979

S

TEVENS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and REHNQUIST, J.J., joined. REHNQUIST, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 717. BURGER, C. J., concurred in the judgment. WHITE, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 718. POWELL, J., filed a dissenting opinion, post, p. 730. Cannon v. University of Chicago, 441 U.S. 677 (1979). Footnotes throughout the text have been removed for the sake of brevity.

MR. JUSTICE STEVENS delivered the opinion of the Court. Petitioner’s complaints allege that her applications for admission to medical school were denied by the respondents because she is a woman.1 Accepting the truth of those allegations for the purpose of its decision, the Court of Appeals held that petitioner has no right of action against respondents that may be asserted in a federal court. We granted certiorari to review that holding. Only two facts alleged in the complaints are relevant to our decision. First, petitioner was excluded from participation in the respondents’ medical education programs because of her sex. Second, these education programs were receiving federal financial assistance at the time of her exclusion. These facts, admitted arguendo by respondents’ motion to dismiss the complaints, establish a violation of 901 (a) of Title IX of the Education Amendments of 1972 (hereinafter Title IX).

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That section, in relevant part, provides: •

“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. . . .”

The statute does not, however, expressly authorize a private right of action by a person injured by a violation of 901. For that reason, and because it concluded that no private remedy should be inferred, the District Court granted the respondents’ motions to dismiss. The Court of Appeals agreed that the statute did not contain an implied private remedy. Noting that 902 of Title IX establishes a procedure for the termination of federal financial support for institutions violating 901, the Court of Appeals concluded that Congress intended that remedy to be the exclusive means of enforcement. It recognized that the statute was patterned after Title VI of the Civil Rights Act of 1964 (hereinafter Title VI), but rejected petitioner’s argument that Title VI included an implied private cause of action. After the Court of Appeal’s decision was announced, Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976,, which authorizes an award of fees to prevailing private parties in actions to enforce Title IX. The court therefore granted a petition for rehearing to consider whether, in the light of that statute, its original interpretation of Title IX had been correct. After receiving additional briefs, the court concluded that the 1976 Act was not intended to create a remedy that did not previously exist. The court also noted that the Department of Health, Education, and Welfare had taken the position that a private cause of action under Title IX should be implied, but the court disagreed with that agency’s interpretation of the Act. In sum, it adhered to its original view. The Court of Appeals quite properly devoted careful attention to this question of statutory construction. As our recent cases—particularly Cort v. Ash,—demonstrate, the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person. Instead, before concluding that Congress intended to make a remedy available to a special class of litigants, a court must carefully analyze the four factors that Cort identifies as indicative of such an intent.9 Our review of those factors persuades us, however, that the Court of Appeals reached the wrong conclusion and that petitioner does have a statutory right to pursue her claim that respondents rejected her application on the basis of her sex. After commenting on each of the four factors, we shall explain why they are not overcome by respondents’ countervailing arguments.

CANNON V. UNIVERSITY OF CHICAGO (1979)

I First, the threshold question under Cort is whether the statute was enacted for the benefit of a special class of which the plaintiff is a member. That question is answered by looking to the language of the statute itself. Thus, the statutory reference to “any employee of any such common carrier” in the 1893 legislation requiring railroads to equip their cars with secure “grab irons or handholds,” made “irresistible” the Court’s earliest “inference of a private right of action”—in that case in favor of a railway employee who was injured when a grab iron gave way. Similarly, it was statutory language describing the special class to be benefited by 5 of the Voting Rights Act of 1965 that persuaded the Court that private parties within that class were implicitly authorized to seek a declaratory judgment against a covered State. Allen v. State Board of Elections. The dispositive language in that statute—“no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, 5]”—is remarkably similar to the language used by Congress in Title IX. The language in these statutes—which expressly identifies the class Congress intended to benefit—contrasts sharply with statutory language customarily found in criminal statutes, such as that construed in Cort, supra, and other laws enacted for the protection of the general public. There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices. Unquestionably, therefore, the first of the four factors identified in Cort favors the implication of a private cause of action. Title IX explicitly confers a benefit on persons discriminated against on the basis of sex, and petitioner is clearly a member of that class for whose special benefit the statute was enacted. Second, the Cort analysis requires consideration of legislative history. We must recognize, however, that the legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question. Therefore, in situations such as the present one “in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling.”. But this is not the typical case. Far from evidencing any purpose to deny a private cause of action, the history of

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Title IX rather plainly indicates that Congress intended to create such a remedy. Title IX was patterned after Title VI of the Civil Rights Act of 1964. Except for the substitution of the word “sex” in Title IX to replace the words “race, color, or national origin” in Title VI, the two statutes use identical language to describe the benefited class. Both statutes provide the same administrative mechanism for terminating federal financial support for institutions engaged in prohibited discrimination. Neither statute expressly mentions a private remedy for the person excluded from participation in a federally funded program. The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years. In 1972 when Title IX was enacted, the critical language in Title VI had already been construed as creating a private remedy. Most particularly, in 1967, a distinguished panel of the Court of Appeals for the Fifth Circuit squarely decided this issue in an opinion that was repeatedly cited with approval and never questioned during the ensuing five years. In addition, at least a dozen other federal courts reached similar conclusions in the same or related contexts during those years. It is always appropriate to assume that our elected representatives, like other citizens, know the law; in this case, because of their repeated references to Title VI and its modes of enforcement, we are especially justified in presuming both that those representatives were aware of the prior interpretation of Title VI and that that interpretation reflects their intent with respect to Title IX. Moreover, in 1969, in Allen v. State Board of Elections, this court had interpreted the comparable language in 5 of the Voting Rights Act as sufficient to authorize a private remedy. Indeed, during the period between the enactment of Title VI in 1964 and the enactment of Title IX in 1972, this Court had consistently found implied remedies—often in cases much less clear than this. It was after 1972 that this Court decided Cort v. Ash and the other cases cited by the Court of Appeals in support of its strict construction of the remedial aspect of the statute. We, of course, adhere to the strict approach followed in our recent cases, but our evaluation of congressional action in 1972 must take into account its contemporary legal context. In sum, it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with these unusually important precedents from this and other federal courts and that it expected its enactment to be interpreted in conformity with them. It is not, however, necessary to rely on these presumptions. The package of statutes of which Title IX is one part also contains a provision whose language and history demonstrate that Congress itself understood Title VI, and thus its companion, Title IX, as creating a private remedy.

CANNON V. UNIVERSITY OF CHICAGO (1979)

Section 718 of the Education Amendments authorizes federal courts to award attorney’s fees to the prevailing parties, other than the United States, in private actions brought against public educational agencies to enforce Title VI in the context of elementary and secondary education. The language of this provision explicitly presumes the availability of private suits to enforce Title VI in the education context. For many such suits, no express cause of action was then available; hence Congress must have assumed that one could be implied under Title VI itself. That assumption was made explicit during the debates. It was also aired during the debates on other provisions in the Education Amendments of 1972 and on Title IX itself, and is consistent with the Executive Branch’s apparent understanding of Title VI at the time. Finally, the very persistence—before 1972 and since, among judges and executive officials, as well as among litigants and their counsel, and even implicit in decisions of this Court of the assumption that both Title VI and Title IX created a private right of action for the victims of illegal discrimination and the absence of legislative action to change that assumption provide further evidence that Congress at least acquiesces in, and apparently affirms, that assumption. We have no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing an implied private cause of action for victims of the prohibited discrimination. Third, under Cort, a private remedy should not be implied if it would frustrate the underlying purpose of the legislative scheme. On the other hand, when that remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to its implication under the statute. Title IX, like its model Title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices. Both of these purposes were repeatedly identified in the debates on the two statutes. The first purpose is generally served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices. That remedy is, however, severe and often may not provide an appropriate means of accomplishing the second purpose if merely an isolated violation has occurred.38 In that situation, the violation might be remedied more efficiently by an order requiring an institution to accept an applicant who had been improperly excluded. Moreover, in that kind of situation it makes little sense to impose on an individual, whose only interest is in obtaining a benefit for herself, or on HEW, the

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burden of demonstrating that an institution’s practices are so pervasively discriminatory that a complete cutoff of federal funding is appropriate. The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with—and in some cases even necessary to—the orderly enforcement of the statute. The Department of Health, Education, and Welfare, which is charged with the responsibility for administering Title IX, perceives no inconsistency between the private remedy and the public remedy.41 On the contrary, the agency takes the unequivocal position that the individual remedy will provide effective assistance to achieving the statutory purposes. Fourth, the final inquiry suggested by Cort is whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the States. No such problem is raised by a prohibition against invidious discrimination of any sort, including that on the basis of sex. Since the Civil War, the Federal Government and the federal courts have been the “ ‘primary and powerful reliances’ ” in protecting citizens against such discrimination. Steffel v. Thompson, Moreover, it is the expenditure of federal funds that provides the justification for this particular statutory prohibition. There can be no question but that this aspect of the Cort analysis supports the implication of a private federal remedy. In sum, there is no need in this case to weigh the four Cort factors; all of them support the same result. Not only the words and history of Title IX, but also its subject matter and underlying purposes, counsel implication of a cause of action in favor of private victims of discrimination.

II Respondents’ principal argument against implying a cause of action under Title IX is that it is unwise to subject admissions decisions of universities to judicial scrutiny at the behest of disappointed applicants on a case-bycase basis. They argue that this kind of litigation is burdensome and inevitably will have an adverse effect on the independence of members of university committees. This argument is not original to this litigation. It was forcefully advanced in both 1964 and 1972 by the congressional opponents of Title VI and Title IX, and squarely rejected by the congressional majorities that passed the two statutes. In short, respondents’ principal contention is not a legal argument at all; it addresses a policy issue that Congress has already resolved. History has borne out the judgment of Congress. Although victims of discrimination on the basis of race, religion, or national origin have had private Title VI remedies available at least since 1965, respondents have

CANNON V. UNIVERSITY OF CHICAGO (1979)

not come forward with any demonstration that Title VI litigation has been so costly or voluminous that either the academic community or the courts have been unduly burdened. Nothing but speculation supports the argument that university administrators will be so concerned about the risk of litigation that they will fail to discharge their important responsibilities in an independent and professional manner.

III Respondents advance two other arguments that deserve brief mention. Starting from the premise that Title IX and Title VI should receive the same construction, respondents argue (1) that a comparison of Title VI with other Titles of the Civil Rights Act of 1964 demonstrates that Congress created express private remedies whenever it found them desirable; and (2) that certain excerpts from the legislative history of Title VI foreclose the implication of a private remedy. Even if these arguments were persuasive with respect to Congress’ understanding in 1964 when it passed Title VI, they would not overcome the fact that in 1972 when it passed Title IX, Congress was under the impression that Title VI could be enforced by a private action and that Title IX would be similarly enforceable. “For the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.” Brown v. GSA. But each of respondents’ arguments is, in any event, unpersuasive. The fact that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section. Rather, the Court has generally avoided this type of “excursion into extrapolation of legislative intent,” Cort v. Ash, unless there is other, more convincing, evidence that Congress meant to exclude the remedy. With one set of exceptions, the excerpts from the legislative history cited by respondents as contrary to implication of a private remedy under Title VI, were all concerned with a procedure for terminating federal funding. None of them evidences any hostility toward an implied private remedy to terminate the offending discrimination. They are consistent with the assumption expressed frequently during the debates that such a judicial remedy—either through the kind of broad construction of state action under 1983 adopted by the Court of Appeals for the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, or through an implied remedy—would be available to private litigants regardless of how the fund-cutoff issue was resolved.

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The only excerpt relied upon by respondents that deals precisely with the question whether the victim of discrimination has a private remedy under Title VI was comment by Senator Keating. In it, he expressed disappointment at the administration’s failure to include his suggestion for an express remedy in its final proposed bill. Our analysis of the legislative history convinces us, however, that neither the administration’s decision not to incorporate that suggestion expressly in its bill, nor Senator Keating’s response to that decision, is indicative of a rejection of a private right of action against recipients of federal funds. Instead, the former appears to have been a compromise aimed at protecting individual rights without subjecting the Government to suits, while the latter is merely one Senator’s isolated expression of a preference for an express private remedy. In short, neither is inconsistent with the implication of such a remedy. Nor is there any other indication in the legislative history that any Member of Congress voted in favor of the statute in reliance on an understanding that Title VI did not include a private remedy. When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights. But the Court has long recognized that under certain limited circumstances the failure of Congress to do so is not inconsistent with an intent on its part to have such a remedy available to the persons benefited by its legislation. Title IX presents the atypical situation in which all of the circumstances that the Court has previously identified as supportive of an implied remedy are present. We therefore conclude that the petitioner may maintain her lawsuit, despite the absence of any express authorization for it in the statute. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN joins, dissenting. In avowedly seeking to provide an additional means to effectuate the broad purpose of 901 of the Education Amendments of 1972, to end sex discrimination in federally funded educational programs, the Court fails to heed the concomitant legislative purpose not to create a new private remedy to implement this objective. Because in my view the legislative history and statutory scheme show that Congress intended not to provide a new private cause of action, and because under our previous decisions such intent is controlling, I dissent.

CANNON V. UNIVERSITY OF CHICAGO (1979)

I The Court recognizes that because Title IX was explicitly patterned after Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., it is difficult to infer a private cause of action in the former but not in the latter. I have set out once before my reasons for concluding that a new private cause of action to enforce Title VI should not be implied, and I find nothing in the legislative materials reviewed by the Court that convinces me to the contrary. Rather, the legislative history, like the terms of Title VI itself, makes it abundantly clear that the Act was and is a mandate to federal agencies to eliminate discrimination in federally funded programs. Although there was no intention to cut back on private remedies existing under 42 U.S.C. 1983 to challenge discrimination occurring under color of state law, there is no basis for concluding that Congress contemplated the creation of private remedies either against private parties who previously had been subject to no constitutional or statutory obligation not to discriminate, or against federal officials or agencies involved in funding allegedly discriminatory programs. The Court argues that because funding termination, authorized by 602, is a drastic remedy, Congress must have contemplated private suits in order directly and less intrusively to terminate the discrimination allegedly being practiced by the recipient institutions. But the Court’s conclusion does not follow from its premise because funding termination was not contemplated as the only—or even the primary—agency action to end discrimination. Rather, Congress considered termination of financial assistance to be a remedy of last resort, and expressly obligated federal agencies to take measures to terminate discrimination without resorting to termination of funding. Title VI was enacted on the proposition that it was contrary at least to the “moral sense of the Nation”2 to expend federal funds in a racially discriminatory manner. This proposition was not new, for every President since President Franklin Roosevelt had, by Executive Order, prohibited racial discrimination in hiring in certain federally assisted programs. Further, Congress was aware that most agencies dispensing federal funds already had “authority to refuse or terminate assistance for failure to comply with a variety of requirements imposed by statute or by administrative action”. But Congress was plainly dissatisfied with agency efforts to ensure the nondiscriminatory use of federal funds; and the predicate for Title VI was the belief that “the time [had] come . . . to declare a broad principle that is right and necessary, and to make it effective for every Federal program involving financial assistance by grant, loan or contract.”

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Far from conferring new private authority to enforce the federal policy of nondiscrimination, Title VI contemplated agency action to be the principal mechanism for achieving this end. To be sure, Congress contemplated that there would be litigation brought to enforce Title VI. The “other means” provisions of 602 include agency suits to enforce contractual antidiscrimination provisions and compliance with agency regulations, as well as suits brought by the Department of Justice under Title IV of the 1964 Act, where the recipient is a public entity. Congress also knew that there would be private suits to enforce 601; but these suits were not authorized by 601 itself but by 42 U.S.C. 1983. Every excerpt from the legislative history cited by the Court shows full awareness that private suits could redress discrimination contrary to the Constitution and Title VI, if the discrimination were imposed by public agencies; not one statement suggests contemplation of lawsuits against recipients not acting under color of state law. The legislative history shows, however, that Congress did not intend to add to this already existing private remedy. Particularly, Congress did not intend to create a private remedy for discrimination practiced not under color of state law but by private parties or institutions.

II The Court further concludes that even if it cannot be persuasively demonstrated that Title VI created a private right of action, nonetheless this remedy should be inferred in Title IX because prior to its enactment several lower courts had entertained private suits to enforce the prohibition on racial discrimination in Title VI. Once again, however, there is confusion between the existing 1983 right of action to remedy denial of federal rights under color of state law—which, as Congress recognized, would encompass suits to enforce the nondiscrimination mandate of 601— and the creation of a new right of action against private discrimination. The Court’s reliance on 718 of the 1972 Act, 20 U.S.C. 1617, is likewise misplaced. That provision authorizes attorney’s fees to the prevailing party other than the United States upon the entry of a final order by a federal court “against a local educational agency, a State (or any agency thereof ), or the United States (or any agency thereof ), for failure to comply with any provision of this chapter”—which deals with emergency school aid, 20 U.S.C. 1601–1619—“or for discrimination on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education.”

CANNON V. UNIVERSITY OF CHICAGO (1979)

Based on this provision, it is argued that Title VI itself must have authorized private actions.

III The legislative intent not to create a new private remedy for enforcement of Title VI or Title IX cannot be ignored simply because in other cases involving analogous language the Court has recognized private remedies. The recent cases inferring a private right of action to enforce various civil rights statutes relied not merely upon the statutory language granting the right sought to be enforced, but also upon the clear compatibility, despite the absence of an explicit legislative mandate, between private enforcement and the legislative purpose demonstrated in the statute itself. Congress decided in Title IX, as it had in Title VI, to prohibit certain forms of discrimination by recipients of federal funds. Where those recipients were acting under color of state law, individuals could obtain redress in the federal courts for violation of these prohibitions. But, excepting post-Civil War enactments dealing with racial discrimination in specified situations, these forms of discrimination by private entities had not previously been subject to individual redress under federal law, and Congress decided to reach such discrimination not by creating a new remedy for individuals, but by relying on the authority of the Federal Government to enforce the terms under which federal assistance would be provided. Whatever may be the wisdom of this approach to the problem of private discrimination, it was Congress’ choice, not to be overridden by this Court.

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DOCUMENT 7

United States Congress

Civil Rights Restoration Act 1987

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ivil Rights Restoration Act of 1987, Pub. L. No. 100–259, 102 Stat. 28 (1988).

AN ACT To restore the broad scope of coverage and to clarify the application of title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SHORT TITLE SECTION 1. This Act may be cited as the “Civil Rights Restoration Act of 1987”.

FINDINGS OF CONGRESS SEC. 2. The Congress finds that— (1) certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of

CIVIL RIGHTS RESTORATION ACT

title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964; and (2) legislative action is necessary to restore the prior consistent and longstanding executive branch interpretation and broad, institution-wide application of those laws as previously administered.

EDUCATION AMENDMENTS AMENDMENT SEC. 3. (a) Title IX of the Education Amendments of 1972 is amended by adding at the end the following new sections:

“INTERPRETATION OF ‘PROGRAM OR ACTIVITY’ “SEC. 908. For the purposes of this title, the term ‘program or activity’ and ‘program’ mean all of the operations of— “(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or “(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; “(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or “(B) a local educational agency (as defined in section 198(a)(10) of the Elementary and Secondary Education Act of 1965), system of vocational education, or other school system; “(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship— “(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or “(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or “(B)

the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

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“(4)

any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assistance, except that such term does not include any operation of an entity which is controlled by a religious organization if the application of section 901 to such operation would not be consistent with the religious tenets of such organization.”.

(b) Notwithstanding any provision of this Act or any amendment adopted thereto:

“NEUTRALITY WITH RESPECT TO ABORTION” SEC. 909. Nothing in this title 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.” . . .

DOCUMENT 8

Norma V. Cantú, Assistant Secretary for Civil Rights, Department of Education

Sexual Harassment Guidance 1997

N

orma v. Cantú, Assistant Secretary for Civil Rights, “Sexual Harassment Guidance.” Office for Civil Rights, U.S. Department of Education, (March 13, 1997). Also found at Federal Register 62, No. 49 (March 13, 1997): 12034–12051. Footnotes throughout the text have been removed for the sake of brevity.

INTRODUCTION Under Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations, no individual may be discriminated against on the basis of sex in any education program or activity receiving Federal financial assistance. Sexual harassment of students is a form of prohibited sex discrimination under the circumstances described in the Guidance. The following types of conduct constitute sexual harassment: Quid Pro Quo Harassment—A school employee explicitly or implicitly conditions a student’s participation in an education program or activity or bases an educational decision on the student’s submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Quid pro quo harassment is equally unlawful whether the student resists and suffers the threatened harm or submits and thus avoids the threatened harm. Hostile Environment Sexual Harassment—Sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other

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verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment. Schools are required by the Title IX regulations to have grievance procedures through which students can complain of alleged sex discrimination, including sexual harassment. As outlined in this guidance, grievance procedures also provide schools with an excellent mechanism to be used in their efforts to prevent sexual harassment before it occurs. Finally, if the alleged harassment involves issues of speech or expression, a school’s obligations may be affected by the application of First Amendment principles. These and other issues are discussed in more detail in the following paragraphs.

APPLICABILITY OF TITLE IX Title IX applies to all public and private educational institutions that receive Federal funds, including elementary and secondary schools, school districts, proprietary schools, colleges, and universities. The Guidance uses the term “schools” to refer to all those institutions. The “education program or activity” of a school includes all of the school’s operations. This means that Title IX protects students in connection with all of the academic, educational, extra-curricular, athletic, and other programs of the school, whether they take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere. Title IX protects any “person” from sex discrimination; accordingly both male and female students are protected from sexual harassment engaged in by a school’s employees, other students, or third parties. Moreover, Title IX prohibits sexual harassment regardless of the sex of the harasser, i.e., even if the harasser and the person being harassed are members of the same sex. An example would be a campaign of sexually explicit graffiti directed at a particular girl by other girls.

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LIABILITY OF A SCHOOL FOR SEXUAL HARASSMENT Liability of a School for Sexual Harassment by its Employees A school’s liability for sexual harassment by its employees is determined by application of agency principles, i.e., by principles governing the delegation of authority to or authorization of another person to act on one’s behalf. Accordingly, a school will always be liable for even one instance of quid pro quo harassment by a school employee in a position of authority, such as a teacher or administrator, whether or not it knew, should have known, or approved of the harassment at issue. Under agency principles, if a teacher or other employee uses the authority he or she is given (e.g., to assign grades) to force a student to submit to sexual demands, the employee “stands in the shoes” of the school and the school will be responsible for the use of its authority by the employee or agent. A school will also be liable for hostile environment sexual harassment by its employees, i.e., for harassment that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or to create a hostile or abusive educational environment if the employee—(1) acted with apparent authority (i.e., because of the school’s conduct, the employee reasonably appears to be acting on behalf of the school, whether or not the employee acted with authority); or (2) was aided in carrying out the sexual harassment of students by his or her position of authority with the institution. Whether other employees, such as a janitor or cafeteria worker, are in positions of authority in relation to students—or whether it would be reasonable for the student to believe the employees are, even if the employees are not (i.e., apparent authority)—will depend on factors such as the authority actually given to the employee (e.g., in some elementary schools, a cafeteria worker may have authority to impose discipline) and the age of the student. For example, in some cases the younger a student is, the more likely it is that he or she will consider any adult employee to be in a position of authority. Even in situations not involving (i) quid pro quo harassment, (ii) creation of a hostile environment through an employee’s apparent authority, or (iii) creation of a hostile environment in which the employee is aided in carrying out the sexual harassment by his or her position of authority, a school will be liable for sexual harassment of its students by its employees under the same standards applicable to peer and third party hostile environment sexual harassment, as discussed in the next section. That is, if the school fails to take immediate and appropriate steps to

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remedy known harassment, then the school will be liable under Title IX. It is important to emphasize that under this standard of liability the school can avoid violating Title IX if it takes immediate and appropriate action upon notice of the harassment.

Liability of a School for Peer or Third Party Harassment In contrast to the variety of situations in which a school may be liable for sexual harassment by its employees, a school will be liable under Title IX if its students sexually harass other students if (i) a hostile environment exists in the school’s programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action. (Each of these factors is discussed in detail in subsequent sections of the Guidance.) Under these circumstances, a school’s failure to respond to the existence of a hostile environment within its own programs or activities permits an atmosphere of sexual discrimination to permeate the educational program and results in discrimination prohibited by Title IX. Conversely, if, upon notice of hostile environment harassment, a school takes immediate and appropriate steps to remedy the hostile environment, the school has avoided violating Title IX. Thus, Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.

Effect of Grievance Procedures on Liability Schools are required by the Title IX regulations to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints, including complaints of sexual harassment, and to disseminate a policy against sex discrimination. (These issues are discussed in the section on “Prompt and Equitable Grievance Procedures.”) These procedures provide a school with a mechanism for discovering sexual harassment as early as possible and for effectively correcting problems, as required by Title IX. By having a strong policy against sex discrimination and accessible, effective, and fairly applied grievance procedures, a school is telling its students that it does not tolerate sexual harassment and that students can report it without fear of adverse consequences.

WELCOMENESS In order to be actionable as harassment, sexual conduct must be unwelcome. Conduct is unwelcome if the student did not request or invite it

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and “regarded the conduct as undesirable or offensive.” Acquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome. For example, a student may decide not to resist sexual advances of another student or may not file a complaint out of fear. In addition, a student may not object to a pattern of sexually demeaning comments directed at him or her by a group of students out of a concern that objections might cause the harassers to make more comments. The fact that a student may have accepted the conduct does not mean that he or she welcomed it. Also, the fact that a student willingly participated in conduct on one occasion does not prevent him or her from indicating that the same conduct has become unwelcome on a subsequent occasion. On the other hand, if a student actively participates in sexual banter and discussions and gives no indication that he or she objects, then the evidence generally will not support a conclusion that the conduct was unwelcome. Schools should be particularly concerned about the issue of welcomeness if the harasser is in a position of authority. For instance, because students may be encouraged to believe that a teacher has absolute authority over the operation of his or her classroom, a student may not object to a teacher’s sexually harassing comments during class; however, this does not necessarily mean that the conduct was welcome. Instead, the student may believe that any objections would be ineffective in stopping the harassment or may fear that by making objections he or she will be singled out for harassing comments or other retaliation.

SEVERE, PERSISTENT, OR PERVASIVE Hostile environment sexual harassment of a student or students by other students, employees, or third parties is created if conduct of a sexual nature is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or to create a hostile or abusive educational environment. Thus, conduct that is sufficiently severe, but not persistent or pervasive, can result in hostile environment sexual harassment. In deciding whether conduct is sufficiently severe, persistent, or pervasive, the conduct should be considered from both a subjective and objective perspective. . . . A hostile environment can occur even if the harassment is not targeted specifically at the individual complainant. For example, if a student or group of students regularly directs sexual comments toward a particular student, a hostile environment may be created not only for the targeted student, but also for others who witness the conduct. Similarly, if a middle school teacher directs sexual comments toward a particular

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student, a hostile environment may be created for the targeted student and for the students who witness the conduct.

NOTICE A school will be in violation of Title IX if the school “has notice” of a sexually hostile environment and fails to take immediate and appropriate corrective action. A school has notice if it actually “knew, or in the exercise of reasonable care, should have known” about the harassment. In addition, as long as an agent or responsible employee of the school received notice, the school has notice. ... A school can receive notice in many different ways. A student may have filed a grievance or complained to a teacher about fellow students sexually harassing him or her. A student, parent, or other individual may have contacted other appropriate personnel, such as a principal, campus security, bus driver, teacher, an affirmative action officer, or staff in the office of student affairs. An agent or responsible employee of the school may have witnessed the harassment. The school may receive notice in an indirect manner, from sources such as a member of the school staff, a member of the educational or local community, or the media. The school also may have received notice from flyers about the incident or incidents posted around the school. In addition, if a school otherwise has actual or constructive notice of a hostile environment and fails to take immediate and appropriate corrective action, a school has violated Title IX even if the student fails to use the school’s existing grievance procedures.

RECIPIENT’S RESPONSE Once a school has notice of possible sexual harassment of students— whether carried out by employees, other students, or third parties—it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again. These steps are the school’s responsibility whether or not the student who was harassed makes a complaint or otherwise asks the school to take action. As described in the next section, in appropriate circumstances the school will also be responsible

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for taking steps to remedy the effects of the harassment on the individual student or students who were harassed. What constitutes a reasonable response to information about possible sexual harassment will differ depending upon the circumstances.

PROMPT AND EQUITABLE GRIEVANCE PROCEDURES Schools are required by Title IX to adopt and publish a policy against sex discrimination and grievance procedures providing for prompt and equitable resolution of complaints of discrimination on the basis of sex. Accordingly, regardless of whether harassment occurred, a school violates this requirement of Title IX if it does not have those procedures and policy in place. A school’s sex discrimination grievance procedures must apply to complaints of sex discrimination in the school’s education programs and activities filed by students against school employees, other students, or third parties. Title IX does not require a school to adopt a policy specifically prohibiting sexual harassment or to provide separate grievance procedures for sexual harassment complaints. However, its nondiscrimination policy and grievance procedures for handling discrimination complaints must provide effective means for preventing and responding to sexual harassment. Thus, if, because of the lack of a policy or procedure specifically addressing sexual harassment, students are unaware of what kind of conduct constitutes sexual harassment or that that conduct is prohibited sex discrimination, a school’s general policy and procedures relating to sex discrimination complaints will not be considered effective.

FIRST AMENDMENT In cases of alleged harassment, the protections of the First Amendment must be considered if issues of speech or expression are involved. Free speech rights apply in the classroom (e.g., classroom lectures and discussions) and in all other education programs and activities of public schools (e.g., public meetings and speakers on campus; campus debates, school plays and other cultural events; and student newspapers, journals and other publications). In addition, First Amendment rights apply to the speech of students and teachers. Title IX is intended to protect students from sex discrimination, not to regulate the content of speech. OCR recognizes that the offensiveness

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of particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX. In order to establish a violation of Title IX, the harassment must be sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or to create a hostile or abusive educational environment.

DOCUMENT 9

Supreme Court of the United States

Gebser v. Lago Vista Independent School District 1998

G

ebser, 524 U.S. 274 (1998). Footnotes throughout the text have been removed for the sake of brevity.

O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, and THOMAS, J.J., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, J.J., joined. GINSBURG, J., filed a dissenting opinion, in which SOUTER and BREYER, J.J., joined, post, p. 2007. Justice O’CONNOR delivered the opinion of the Court. The question in this case is when a school district may be held liable in damages in an implied right of action under Title IX of the Education Amendments of 1972. (Title IX), for the sexual harassment of a student by one of the district’s teachers. We conclude that damages may not be recovered in those circumstances unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.

I In the spring of 1991, when petitioner Alida Star Gebser was an eighthgrade student at a middle school in respondent Lago Vista Independent

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School District (Lago Vista), she joined a high school book discussion group led by Frank Waldrop, a teacher at Lago Vista’s high school. Lago Vista received federal funds at all pertinent times. During the book discussion sessions, Waldrop often made sexually suggestive comments to the students. Gebser entered high school in the fall and was assigned to classes taught by Waldrop in both semesters. Waldrop continued to make inappropriate remarks to the students, and he began to direct more of his suggestive comments toward Gebser, including during the substantial amount of time that the two were alone in his classroom. He initiated sexual contact with Gebser in the spring, when, while visiting her home ostensibly to give her a book, he kissed and fondled her. The two had sexual intercourse on a number of occasions during the remainder of the school year. Their relationship continued through the summer and into the following school year, and they often had intercourse during class time, although never on school property. Gebser did not report the relationship to school officials, testifying that while she realized Waldrop’s conduct was improper, she was uncertain how to react and she wanted to continue having him as a teacher. In October 1992, the parents of two other students complained to the high school principal about Waldrop’s comments in class. The principal arranged a meeting, at which, according to the principal, Waldrop indicated that he did not believe he had made offensive remarks but apologized to the parents and said it would not happen again. The principal also advised Waldrop to be careful about his classroom comments and told the school guidance counselor about the meeting, but he did not report the parents’ complaint to Lago Vista’s superintendent, who was the district’s Title IX coordinator. A couple of months later, in January 1993, a police officer discovered Waldrop and Gebser engaging in sexual intercourse and arrested Waldrop. Lago Vista terminated his employment, and subsequently, the Texas Education Agency revoked his teaching license. During this time, the district had not promulgated or distributed an official grievance procedure for lodging sexual harassment complaints; nor had it issued a formal anti-harassment policy. Gebser and her mother filed suit against Lago Vista and Waldrop in state court in November 1993, raising claims against the school district under Title IX. The United States District Court for the Western District of Texas granted summary judgment in favor of Lago Vista on all claims, and remanded the allegations against Waldrop to state court. In rejecting the Title IX claim against the school district, the court reasoned that the statute “was enacted to counter policies of discrimination . . . in federally funded education programs,” and that “[o]nly if school administrators have some type of notice of the gender discrimination and fail to respond

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in good faith can the discrimination be interpreted as a policy of the school district.”. Here, the court determined, the parents’ complaint to the principal concerning Waldrop’s comments in class was the only one Lago Vista had received about Waldrop, and that evidence was inadequate to raise a genuine issue on whether the school district had actual or constructive notice that Waldrop was involved in a sexual relationship with a student. Petitioners appealed only on the Title IX claim. The Court of Appeals for the Fifth Circuit affirmed . . ., relying in large part on two of its recent decisions. . . . The court first declined to impose strict liability on school districts for a teacher’s sexual harassment of a student. . . . The Fifth Circuit’s analysis represents one of the varying approaches adopted by the Courts of Appeals in assessing a school district’s liability under Title IX for a teacher’s sexual harassment of a student. We granted certiorari to address the issue and we now affirm.

II Title IX provides in pertinent part: “No person . . . 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.” The express statutory means of enforcement is administrative: The statute directs federal agencies that distribute education funding to establish requirements to effectuate the nondiscrimination mandate, and permits the agencies to enforce those requirements through “any . . . means authorized by law,” including * ultimately the termination of federal funding. The Court held in Cannon v. University of Chicago that Title IX is also enforceable through an implied private right of action, a conclusion we do not revisit here. We subsequently established in Franklin v. Gwinnett County Public Schools that monetary damages are available in the implied private action. In Franklin, a high school student alleged that a teacher had sexually abused her on repeated occasions and that teachers and school administrators knew about the harassment but took no action, even to the point of dissuading her from initiating charges. The lower courts dismissed Franklin’s complaint against the school district on the ground that the implied right of action under Title IX, as a categorical matter, does not encompass recovery in damages. We reversed the lower courts’ blanket rule, concluding that Title IX supports a private action for damages, at least “in a case such as this, in which intentional discrimination is alleged.” Franklin thereby establishes that a school district can be held liable in

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damages in cases involving a teacher’s sexual harassment of a student; the decision, however, does not purport to define the contours of that liability. We face that issue squarely in this case. Petitioners, joined by the United States as amicus curiae, would invoke standards used by the Courts of Appeals in Title VII cases involving a supervisor’s sexual harassment of an employee in the workplace. In support of that approach, they point to a passage in Franklin in which we stated: “Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and ‘when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.’ We believe the same rule should apply when a teacher sexually harasses and abuses a student.” Meritor Savings Bank, FSB v. Vinson, directs courts to look to common law agency principles when assessing an employer’s liability under Title VII for sexual harassment of an employee by a supervisor. Petitioners and the United States submit that, in light of Franklin’s comparison of teacher-student harassment with supervisor-employee harassment, agency principles should likewise apply in Title IX actions. Specifically, they advance two possible standards under which Lago Vista would be liable for Waldrop’s conduct. First, relying on a 1997 “Policy Guidance” issued by the Department of Education, they would hold a school district liable in damages under Title IX where a teacher is “ ‘aided in carrying out the sexual harassment of students by his or her position of authority with the institution,’ ” irrespective of whether school district officials had any knowledge of the harassment and irrespective of their response upon becoming aware. That rule is an expression of respondeat superior liability, i.e., vicarious or imputed liability, under which recovery in damages against a school district would generally follow whenever a teacher’s authority over a student facilitates the harassment. Second, petitioners and the United States submit that a school district should at a minimum be liable for damages based on a theory of constructive notice, i.e., where the district knew or “should have known” about harassment but failed to uncover and eliminate it. Both standards would allow a damages recovery in a broader range of situations than the rule adopted by the Court of Appeals, which hinges on actual knowledge by a school official with authority to end the harassment. Whether educational institutions can be said to violate Title IX based solely on principles of respondeat superior or constructive notice was not resolved by Franklin’s citation of Meritor. That reference to Meritor was made with regard to the general proposition that sexual harassment can constitute discrimination on the basis of sex under Title IX, an issue not in dispute here. In fact, the school district’s liability in Franklin did

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not necessarily turn on principles of imputed liability or constructive notice, as there was evidence that school officials knew about the harassment but took no action to stop it. Moreover, Meritor’s rationale for concluding that agency principles guide the liability inquiry under Title VII rests on an aspect of that statute not found in Title IX: Title VII, in which the prohibition against employment discrimination runs against “an employer,” explicitly defines “employer” to include “any agent,”. Title IX contains no comparable reference to an educational institution’s “agents,” and so does not expressly call for application of agency principles. In this case, moreover, petitioners seek not just to establish a Title IX violation but to recover damages based on theories of respondeat superior and constructive notice. It is that aspect of their action, in our view, that is most critical to resolving the case. Unlike Title IX, Title VII contains an express cause of action . . . and specifically provides for relief in the form of monetary damages. . . . Congress therefore has directly addressed the subject of damages relief under Title VII and has set out the particular situations in which damages are available as well as the maximum amounts recoverable. . . .With respect to Title IX, however, the private right of action is judicially *implied, and there is thus no legislative expression of the scope of available remedies, including when it is appropriate to award monetary damages. In addition, although the general presumption that courts can award any appropriate relief in an established cause of action, coupled with Congress’ abrogation of the States’ Eleventh Amendment immunity under Title IX, led us to conclude in Franklin that Title IX recognizes a damages remedy), we did so in response to lower court decisions holding that Title IX does not support damages relief at all. We made no effort in Franklin to delimit the circumstances in which a damages remedy should lie.

III Because the private right of action under Title IX is judicially implied, we have a measure of latitude to shape a sensible remedial scheme that best comports with the statute. That endeavor inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken. To guide the analysis, we generally examine the relevant statute to ensure that we do not fashion the scope of an implied right in a manner at odds with the statutory structure and purpose. Those considerations, we think, are pertinent not only to the scope of the implied right, but also to the scope of the available remedies. We suggested as much in Franklin, where we recognized “the general rule that

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all appropriate relief is available in an action brought to vindicate a federal right,” but indicated that the rule must be reconciled with congressional purpose. The “general rule,” that is, “yields where necessary to carry out the intent of Congress or to avoid frustrating the purposes of the statute involved.” Applying those principles here, we conclude that it would “frustrate the purposes” of Title IX to permit a damages recovery against a school district for a teacher’s sexual harassment of a student based on principles of respondeat superior or constructive notice, i.e., without actual notice to a school district official. Because Congress did not expressly create a private right of action under Title IX, the statutory text does not shed light on Congress’ intent with respect to the scope of available remedies. Instead, “we attempt to infer how the [1972] Congress would have addressed the issue had the . . . action been included as an express provision in the” statute. As a general matter, it does not appear that Congress contemplated unlimited recovery in damages against a funding recipient where the recipient is unaware of discrimination in its programs. When Title IX was enacted in 1972, the principal civil rights statutes containing an express right of action did not provide for recovery of monetary damages at all, instead allowing only injunctive and equitable relief. It was not until 1991 that Congress made damages available under Title VII, and even then, Congress carefully limited the amount recoverable in any individual case, calibrating the maximum recovery to the size of the employer. Adopting petitioners’ position would amount, then, to allowing unlimited recovery of damages under Title IX where Congress has not spoken on the subject of either the right or the remedy, and in the face of evidence that when Congress expressly considered both in Title VII it restricted the amount of damages available. Congress enacted Title IX in 1972 with two principal objectives in mind: “[T]o avoid the use of federal resources to support discriminatory practices” and “to provide individual citizens effective protection against those practices.” The statute was modeled after Title VI of the Civil Rights Act of 1964, which is parallel to Title IX except that it prohibits race discrimination, not sex discrimination, and applies in all programs receiving federal funds, not only in education programs. The two statutes operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds. That contractual framework distinguishes Title IX from Title VII, which is framed in terms not of a condition but of an outright prohibition. Title VII applies to all employers without regard to federal funding and

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aims broadly to “eradicat[e] discrimination throughout the economy.” Title VII, moreover, seeks to “make persons whole for injuries suffered through past discrimination.” Thus, whereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on “protecting” individuals from discriminatory practices carried out by recipients of federal funds. That might explain why, when the Court first recognized the implied right under Title IX in Cannon, the opinion referred to injunctive or equitable relief in a private action, but not to a damages remedy. Title IX’s contractual nature has implications for our construction of the scope of available remedies. When Congress attaches conditions to the award of federal funds under its spending power, U. S. Const., Art. I, § 8, cl. 1, as it has in Title IX and Title VI, we examine closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with the condition. Our central concern in that regard is with ensuring that “the receiving entity of federal funds [has] notice that it will be liable for a monetary award.” Justice White’s opinion announcing the Court’s judgment in, for instance, concluded that the relief in an action under Title VI alleging unintentional discrimination should be prospective only, because where discrimination is unintentional, “it is surely not obvious that the grantee was aware that it was administering the program in violation of the [condition].” We confront similar concerns here. If a school district’s liability for a teacher’s sexual harassment rests on principles of constructive notice or respondeat superior, it will likewise be the case that the recipient of funds was unaware of the discrimination. It is sensible to assume that Congress did not envision a recipient’s liability in damages in that situation. Most significantly, Title IX contains important clues that Congress did not intend to allow recovery in damages where liability rests solely on principles of vicarious liability or constructive notice. Title IX’s express means of enforcement—by administrative agencies—operates on an assumption of actual notice to officials of the funding recipient. The statute entitles agencies who disburse education funding to enforce their rules implementing the nondiscrimination mandate through proceedings to suspend or terminate funding or through “other means authorized by law.” Significantly, however, an agency may not initiate enforcement proceedings until it “has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” The administrative regulations implement that obligation, requiring resolution of compliance issues “by informal means whenever possible,”, and prohibiting commencement of enforcement proceedings until the agency has determined that voluntary

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compliance is unobtainable and “the recipient . . . has been notified of its failure to comply and of the action to be taken to effect compliance,” In the event of a violation, a funding recipient may be required to take “such remedial action as [is] deem[ed] necessary to overcome the effects of [the] discrimination.” § 106.3. While agencies have conditioned continued funding on providing equitable relief to the victim, the regulations do not appear to contemplate a condition ordering payment of monetary damages, and there is no indication that payment of damages has been demanded as a condition of finding a recipient to be in compliance with the statute. In Franklin, for instance, the Department of Education found a violation of Title IX but determined that the school district came into compliance by virtue of the offending teacher’s resignation and the district’s institution of a grievance procedure for sexual harassment complaints. Presumably, a central purpose of requiring notice of the violation “to the appropriate person” and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures. The scope of private damages relief proposed by petitioners is at odds with that basic objective. When a teacher’s sexual harassment is imputed to a school district or when a school district is deemed to have “constructively” known of the teacher’s harassment, by assumption the district had no actual knowledge of the teacher’s conduct. Nor, of course, did the district have an opportunity to take action to end the harassment or to limit further harassment. It would be unsound, we think, for a statute’s express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient’s knowledge or its corrective actions upon receiving notice. . . . Moreover, an award of damages in a particular case might well exceed a recipient’s level of federal funding. Where a statute’s express enforcement scheme hinges its most severe sanction on notice and unsuccessful efforts to obtain compliance, we cannot attribute to Congress the intention to have implied an enforcement scheme that allows imposition of greater liability without comparable conditions.

IV Because the express remedial scheme under Title IX is predicated upon notice to an “appropriate person” and an opportunity to rectify any

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violation, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An “appropriate person” is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination. Consequently, in cases like this one that do not involve official policy of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond. We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees’ independent actions. Comparable considerations led to our adoption of a deliberate indifference standard for claims under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation of federal rights was the cause of the violation. Applying the framework to this case is fairly straightforward, as petitioners do not contend they can prevail under an actual notice standard. The only official alleged to have had information about Waldrop’s misconduct is the high school principal. That information, however, consisted of a complaint from parents of other students charging only that Waldrop had made inappropriate comments during class, which was plainly insufficient to alert the principal to the possibility that Waldrop was involved in a sexual relationship with a student. Lago Vista, moreover, terminated Waldrop’s employment upon learning of his relationship with Gebser. Justice STEVENS points out in his dissenting opinion that Waldrop of course had knowledge of his own actions. Where a school district’s liability rests on actual notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis. Petitioners focus primarily on Lago Vista’s asserted failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims. They point to Department of Education regulations requiring each funding recipient to “adopt and publish grievance procedures providing for prompt and equitable resolution” of discrimination complaints, and to notify students and others that “it does not discriminate on the basis of sex in the educational programs or activities

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which it operates,”. Lago Vista’s alleged failure to comply with the regulations, however, does not establish the requisite actual notice and deliberate indifference. And in any event, the failure to promulgate a grievance procedure does not itself constitute “discrimination” under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, even if those requirements do not purport to represent a definition of discrimination under the statute. We have never held, however, that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements.

V The number of reported cases involving sexual harassment of students in schools confirms that harassment unfortunately is an all too common aspect of the educational experience. No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher’s conduct is reprehensible and undermines the basic purposes of the educational system. The issue in this case, however, is whether the independent misconduct of a teacher is attributable to the school district that employs him under a specific federal statute designed primarily to prevent recipients of federal financial assistance from using the funds in a discriminatory manner. Our decision does not affect any right of recovery that an individual may have against a school district as a matter of state law or against the teacher in his individual capacity under state law or under 42 U.S.C. § 1983. Until Congress speaks directly on the subject, however, we will not hold a school district liable in damages under Title IX for a teacher’s sexual harassment of a student absent actual notice and deliberate indifference. We therefore affirm the judgment of the Court of Appeals. It is so ordered.

Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, dissenting. The question that the petition for certiorari asks us to address is whether the Lago Vista Independent School District (respondent) is liable in damages for a violation of Title IX of the Education Amendments of

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1972. The Court provides us with a negative answer to that question because respondent did not have actual notice of, and was not deliberately indifferent to, the odious misconduct of one of its teachers. As a basis for its decision, the majority relies heavily on the **2001 notion that because the private cause of action under Title IX is “judicially implied,” the Court has “a measure of latitude” to use its own judgment in shaping a remedial scheme. This assertion of lawmaking authority is not faithful either to our precedents or to our duty to interpret, rather than to revise, congressional commands. Moreover, the majority’s policy judgment about the appropriate remedy in this case thwarts the purposes of Title IX. ... Justice GINSBURG, with whom Justice SOUTER and Justice BREYER join, dissenting. Justice STEVENS’ opinion focuses on the standard of school district liability for teacher-on-student harassment in secondary schools. I join that opinion, which reserves the question whether a district should be relieved from damages liability if it has in place, and effectively publicizes and enforces, a policy to curtail and redress injuries caused by sexual harassment. I think it appropriate to answer that question for these reasons: (1) the dimensions of a claim are determined not only by the plaintiff’s allegations, but by the allowable defenses; (2) this Court’s pathmarkers are needed to afford guidance to lower courts and school officials responsible for the implementation of Title IX. In line with the tort law doctrine of avoidable consequences, I would recognize as an affirmative defense to a Title IX charge of sexual harassment, an effective policy for reporting and redressing such misconduct. School districts subject to Title IX’s governance have been instructed by the Secretary of Education to install procedures for “prompt and equitable resolution” of complaints), and the Department of Education’s Office for Civil Rights has detailed elements of an effective grievance process, with specific reference to sexual harassment. The burden would be the school district’s to show that its internal remedies were adequately publicized and likely would have provided redress without exposing the complainant to undue risk, effort, or expense. Under such a regime, to the extent that a plaintiff unreasonably failed to avail herself of the school district’s preventive and remedial measures, and consequently suffered avoidable harm, she would not qualify for Title IX relief.

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DOCUMENT 10

Supreme Court of the United States

Davis v. Monroe County Board of Education 1999

D

avis v. Monroe County Board of Education, 526 U.S. 629 (1999). Footnotes throughout the text have been removed for the sake of brevity.

O’CONNOR, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, J.J., joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA and THOMAS, J.J., joined

A Petitioner’s minor daughter, LaShonda, was allegedly the victim of a prolonged pattern of sexual harassment by one of her fifth-grade classmates at Hubbard Elementary School, a public school in Monroe County, Georgia. According to the petitioner’s complaint, the harassment began in December 1992, when the classmate, G.F., attempted to touch LaShonda’s breasts and genital area and made vulgar statements such as “ ‘I want to get in bed with you’ ” and “ ‘I want to feel your boobs.’ ” Similar conduct allegedly occurred on or about January 4 and January 20, 1993. LaShonda reported each of these incidents to her mother and to her classroom teacher, Diane Fort. Petitioner, in turn, also contacted Fort, who allegedly assured petitioner that the school principal, Bill Querry, had been informed of the incidents. Petitioner contends that, notwithstanding these reports, no disciplinary action was taken against G.F.

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G.F.’s conduct allegedly continued for many months. In early February, G.F. purportedly placed a doorstop in his pants and proceeded to act in a sexually suggestive manner toward LaShonda during physical education class. LaShonda reported G.F.’s behavior to her physical education teacher, Whit Maples. Approximately one week later, G.F. again allegedly engaged in harassing behavior, this time while under the supervision of another classroom teacher, Joyce Pippin. Again, LaShonda allegedly reported the incident to the teacher, and again petitioner contacted the teacher to follow up. Petitioner alleges that G.F. once more directed sexually harassing conduct toward LaShonda in physical education class in early March, and that LaShonda reported the incident to both Maples and Pippen. In midApril 1993, G.F. allegedly rubbed his body against LaShonda in the school hallway in what LaShonda considered a sexually suggestive manner, and LaShonda again reported the matter to Fort. The string of incidents finally ended in mid-May, when G.F. was charged with, and pleaded guilty to, sexual battery for his misconduct. The complaint alleges that LaShonda had suffered during the months of harassment, however; specifically, her previously high grades allegedly dropped as she became unable to concentrate on her studies, and, in April 1993, her father discovered that she had written a suicide note. The complaint further alleges that, at one point, LaShonda told petitioner that she “ ‘didn’t know how much longer she could keep [G.F.] off her.’ ” Nor was LaShonda G.F.’s only victim; it is alleged that other girls in the class fell prey to G.F.’s conduct. At one point, in fact, a group composed of LaShonda and other female students tried to speak with Principal Querry about G.F.’s behavior. According to the complaint, however, a teacher denied the students’ request with the statement, “ ‘If [Querry] wants you, he’ll call you.’ ” Petitioner alleges that no disciplinary action was taken in response to G.F.’s behavior toward LaShonda. In addition to her conversations with Fort and Pippen, petitioner alleges that she spoke with Principal Querry in mid-May 1993. When petitioner inquired as to what action the school intended to take against G.F., Querry simply stated, “ ‘I guess I’ll have to threaten him a little bit harder.’ ” Yet, petitioner alleges, at no point during the many months of his reported misconduct was G.F. disciplined for harassment. Indeed, Querry allegedly asked petitioner why LaShonda “ ‘was the only one complaining.’ ” Nor, according to the complaint, was any effort made to separate G.F. and LaShonda. On the contrary, notwithstanding LaShonda’s frequent complaints, only after more than three months of reported harassment was

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she even permitted to change her classroom seat so that she was no longer seated next to G.F. Moreover, petitioner alleges that, at the time of the events in question, the Monroe County Board of Education (Board) had not instructed its personnel on how to respond to peer sexual harassment and had not established a policy on the issue.

B On May 4, 1994, petitioner filed suit in the United States District Court for the Middle District of Georgia against the Board, Charles Dumas, the school district’s superintendent, and Principal Querry. The complaint alleged that the Board is a recipient of federal funding for purposes of Title IX, that “[t]he persistent sexual advances and harassment by the student G.F. upon [LaShonda] interfered with her ability to attend school and perform her studies and activities,” and that “[t]he deliberate indifference by Defendants to the unwelcome sexual advances of a student upon LaShonda created an intimidating, hostile, offensive and abus[ive] school environment in violation of Title IX.” The complaint sought compensatory and punitive damages, attorney’s fees, and injunctive relief. The defendants (all respondents here) moved to dismiss petitioner’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, and the District Court granted respondents’ motion. Petitioner appealed the District Court’s decision dismissing her Title IX claim against the Board, and a panel of the Court of Appeals for the Eleventh Circuit reversed. Borrowing from Title VII law, a majority of the panel determined that student-on-student harassment stated a cause of action against the Board under Title IX: “[W]e conclude that as Title VII encompasses a claim for damages due to a sexually hostile working environment created by co-workers and tolerated by the employer, Title IX encompasses a claim for damages due to a sexually hostile educational environment created by a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment.” The Eleventh Circuit panel recognized that petitioner sought to state a claim based on school “officials’ failure to take action to stop the offensive acts of those over whom the officials exercised control,” and the court concluded that petitioner had alleged facts sufficient to support a claim for hostile environment sexual harassment on this theory. The Eleventh Circuit granted the Board’s motion for rehearing en banc, and affirmed the District Court’s decision to dismiss petitioner’s Title IX claim against the Board). The en banc court relied, primarily, on

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the theory that Title IX was passed pursuant to Congress’ legislative authority under the Constitution’s Spending Clause, and that the statute therefore must provide potential recipients of federal education funding with “unambiguous notice of the conditions they are assuming when they accept” it. Title IX, the court reasoned, provides recipients with notice that they must stop their employees from engaging in discriminatory conduct, but the statute fails to provide a recipient with sufficient notice of a duty to prevent student-on-student harassment. We granted certiorari in order to resolve a conflict in the Circuits over whether, and under what circumstances, a recipient of federal educational funds can be liable in a private damages action arising from student-on-student sexual harassment., We now reverse.

II Title IX provides, with certain exceptions not at issue here, that “[n]o 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.”).

Congress authorized an administrative enforcement scheme for Title IX. Federal departments or agencies with the authority to provide financial assistance are entrusted to promulgate rules, regulations, and orders to enforce the objectives . . . and these departments or agencies may rely on “any . . . means authorized by law,” including the termination of funding, ibid., to give effect to the statute’s restrictions. There is no dispute here that the Board is a recipient of federal education funding for Title IX purposes. Nor do respondents support an argument that student-on-student harassment cannot rise to the level of “discrimination” for purposes of Title IX. Rather, at issue here is the question whether a recipient of federal education funding may be liable for damages under Title IX under any circumstances for discrimination in the form of student-on-student sexual harassment.

A Petitioner urges that Title IX’s plain language compels the conclusion that the statute is intended to bar recipients of federal funding from permitting

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this form of discrimination in their programs or activities. She emphasizes that the statute prohibits a student from being “subjected to discrimination under any education program or activity receiving Federal financial assistance.” It is Title IX’s “unmistakable focus on the benefited class,” rather than the perpetrator, that, in petitioner’s view, compels the conclusion that the statute works to protect students from the discriminatory misconduct of their peers. Here, however, we are asked to do more than define the scope of the behavior that Title IX proscribes. We must determine whether a district’s failure to respond to student-on-student harassment in its schools can support a private suit for money damages. This Court has indeed recognized an implied private right of action under Title IX, see Cannon v. University of Chicago, and we have held that money damages are available in such suits, Franklin v. Gwinnett County Public Schools, 503 U.S. 60, (1992). Because we have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause, however, private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue. When Congress acts pursuant to its spending power, it generates legislation “much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” In interpreting language in spending legislation, we thus “insis[t] that Congress speak with a clear voice,” recognizing that “[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it.” Invoking Pennhurst, respondents urge that Title IX provides no notice that recipients of federal educational funds could be liable in damages for harm arising from student-on-student harassment. Respondents contend, specifically, that the statute only proscribes misconduct by grant recipients, not third parties. Respondents argue, moreover, that it would be contrary to the very purpose of Spending Clause legislation to impose liability on a funding recipient for the misconduct of third parties, over whom recipients exercise little control. We agree with respondents that a recipient of federal funds may be liable in damages under Title IX only for its own misconduct. The recipient itself must “exclud[e] [persons] from participation in, . . . den[y] [persons] the benefits of, or . . . subjec[t] [persons] to discrimination under” its “program[s] or activit[ies]” in order to be liable under Title IX. The Government’s enforcement power may only be exercised against the funding recipient, and we have not extended damages liability under Title IX to parties outside the scope of this power.

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We disagree with respondents’ assertion, however, that petitioner seeks to hold the Board liable for G. F.’s actions instead of its own. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. In Gebser, we concluded that a recipient of federal education funds may be liable in damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher. In that case, a teacher had entered into a sexual relationship with an eighth-grade student, and the student sought damages under Title IX for the teacher’s misconduct. We recognized that the scope of liability in private damages actions under Title IX is circumscribed by Pennhurst’s requirement that funding recipients have notice of their potential liability. Invoking Pennhurst, Guardians Assn., and Franklin, in Gebser we once again required “that ‘the receiving entity of federal funds [have] notice that it will be liable for a monetary award’ ” before subjecting it to damages liability. We also recognized, however, that this limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute. In particular, we concluded that Pennhurst does not bar a private damages action under Title IX where the funding recipient engages in intentional conduct that violates the clear terms of the statute. Accordingly, we rejected the use of agency principles to impute liability to the district for the misconduct of its teachers. Likewise, we declined the invitation to impose liability under what amounted to a negligence standard—holding the district liable for its failure to react to teacher-student harassment of which it knew or should have known. Ibid. Rather, we concluded that the district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge. Contrary to the dissent’s suggestion, the misconduct of the teacher in Gebser was not “treated as the grant recipient’s actions.” Liability arose, rather, from “an official decision by the recipient not to remedy the violation.” By employing the “deliberate indifference” theory already used to establish municipal liability under Rev. Stat. § 1979, we concluded in Gebser that recipients could be liable in damages only where their own deliberate indifference effectively “cause[d]” the discrimination. The high standard imposed in Gebser sought to eliminate any “risk that the recipient would be liable in damages not for its own official decision but instead for its employees’ independent actions.” Gebser thus established that a recipient intentionally violates Title IX, and is subject to a private damages action, where the recipient is deliberately indifferent to known acts of teacher-student discrimination.

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Indeed, whether viewed as “discrimination” or “subject[ing]” students to discrimination, Title IX “[u]nquestionably . . . placed on [the Board] the duty not” to permit teacher-student harassment in its schools, and recipients violate Title IX’s plain terms when they remain deliberately indifferent to this form of misconduct. We consider here whether the misconduct identified in Gebser— deliberate indifference to known acts of harassment—amounts to an intentional violation of Title IX, capable of supporting a private damages action, when the harasser is a student rather than a teacher. We conclude that, in certain limited circumstances, it does. As an initial matter, in Gebser we expressly rejected the use of agency principles in the Title IX context, noting the textual differences between Title IX and Title VII. 524 U.S., at 283, Additionally, the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain non agents. The Department of Education requires recipients to monitor third parties for discrimination in specified circumstances and to refrain from particular forms of interaction with outside entities that are known to discriminate. The common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties. This is not to say that the identity of the harasser is irrelevant. On the contrary, both the “deliberate indifference” standard and the language of Title IX narrowly circumscribe the set of parties whose known acts of sexual harassment can trigger some duty to respond on the part of funding recipients. Deliberate indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action. The language of Title IX itself—particularly when viewed in conjunction with the requirement that the recipient have notice of Title IX’s prohibitions to be liable for damages—also cabins the range of misconduct that the statute proscribes. The statute’s plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference “subject[s]” its students to harassment. That is, the deliberate indifference must, at a minimum, “cause [students] to undergo” harassment or “make them liable or vulnerable” to it. Moreover, because the harassment must occur “under”

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“the operations of” a funding recipient, the harassment must take place in a context subject to the school district’s control. These factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to “expose” its students to harassment or “cause” them to undergo it “under” the recipient’s programs. We agree with the dissent that these conditions are satisfied most easily and most obviously when the offender is an agent of the recipient. We rejected the use of agency analysis in Gebser, however, and we disagree that the term “under” somehow imports an agency requirement into Title IX. As noted above, the theory in Gebser was that the recipient was directly liable for its deliberate indifference to discrimination. Liability in that case did not arise because the “teacher’s actions [were] treated” as those of the funding recipient; the district was directly liable for its own failure to act. The terms “subjec[t]” and “under” impose limits, but nothing about these terms requires the use of agency principles. Where, as here, the misconduct occurs during school hours and on school grounds—the bulk of G.F.’s misconduct, in fact, took place in the classroom—the misconduct is taking place “under” an “operation” of the funding recipient. In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. More importantly, however, in this setting the Board exercises significant control over the harasser. We have observed, for example, “that the nature of [the State’s] power [over public schoolchildren] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 655, (1995). On more than one occasion, this Court has recognized the importance of school officials’ “comprehensive authority . . ., consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 507, (1969). The common law, too, recognizes the school’s disciplinary authority. We thus conclude that recipients of federal funding may be liable for “subject[ing]” their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority. We stress that our conclusion here—that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment— does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. We thus disagree with respondents’

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contention that, if Title IX provides a cause of action for student-onstudent harassment, “nothing short of expulsion of every student accused of misconduct involving sexual overtones would protect school systems from liability or damages.”

B The requirement that recipients receive adequate notice of Title IX’s proscriptions also bears on the proper definition of “discrimination” in the context of a private damages action. We have elsewhere concluded that sexual harassment is a form of discrimination for Title IX purposes and that Title IX proscribes harassment with sufficient clarity to satisfy Pennhurst’s notice requirement and serve as a basis for a damages action. Having previously determined that “sexual harassment” is “discrimination” in the school context under Title IX, we are constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of discrimination actionable under the statute. The statute’s other prohibitions, moreover, help give content to the term “discrimination” in this context. Students are not only protected from discrimination, but also specifically shielded from being “excluded from participation in” or “denied the benefits of” any “education program or activity receiving Federal financial assistance.” The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. The most obvious example of student-on-student sexual harassment capable of triggering a damages claim would thus involve the overt, physical deprivation of access to school resources. Consider, for example, a case in which male students physically threaten their female peers every day, successfully preventing the female students from using a particular school resource—an athletic field or a computer lab, for instance. District administrators are well aware of the daily ritual, yet they deliberately ignore requests for aid from the female students wishing to use the resource. The district’s knowing refusal to take any action in response to such behavior would fly in the face of Title IX’s core principles, and such deliberate indifference may appropriately be subject to claims for monetary damages. It is not necessary, however, to show physical exclusion to

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demonstrate that students have been deprived by the actions of another student or students of an educational opportunity on the basis of sex. Rather, a plaintiff must establish sexual harassment of students 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. Whether gender-oriented conduct rises to the level of actionable “harassment” thus “depends on a constellation of surrounding circumstances, expectations, and relationships,” Oncale v. Sundowner Offshore Services, Inc., including, but not limited to, the ages of the harasser and the victim and the number of individuals involved. Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect. Moreover, the provision that the discrimination occur “under any education program or activity” suggests that the behavior be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity. Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. By limiting private damages actions to cases having a systemic effect on educational programs or activities, we reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to student behavior, realities that Congress could not have meant to be ignored. Even the dissent suggests that Title IX liability may arise when a funding recipient remains indifferent to severe, gender-based mistreatment played out on a “widespread level” among students.

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On this complaint, we cannot say “beyond doubt that [petitioner] can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Accordingly, the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice KENNEDY, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting. The Court has held that Congress’ power “ ‘to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.’ ” As a consequence, Congress can use its Spending Clause power to pursue objectives outside of “Article I’s ‘enumerated legislative fields’ ” by attaching conditions to the grant of federal funds. So understood, the Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach. A vital safeguard for the federal balance is the requirement that, when Congress imposes a condition on the States’ receipt of federal funds, it “must do so unambiguously.” As the majority acknowledges, “legislation enacted pursuant to the spending power is much in the nature of a contract,” and the legitimacy of Congress’ exercise of its power to condition funding on state compliance with congressional conditions “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” “ ‘There can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it.’ ” (quoting Pennhurst, 451 U.S., at 17). Our insistence that “Congress speak with a clear voice” to “enable the States to exercise their choice knowingly, cognizant of the consequences of their participation,” is not based upon some abstract notion of contractual fairness. Rather, it is a concrete safeguard in the federal system. Only if States receive clear notice of the conditions attached to federal funds can they guard against excessive federal intrusion into state affairs and be vigilant in policing the boundaries of federal power. While the majority purports to give effect to these principles, it eviscerates the clearnotice safeguard of our Spending Clause jurisprudence.

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Title IX provides: “No person in the United States shall, on the basis of sex, be [1] excluded from participation in, [2] be denied the benefits of, or [3] be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

To read the provision in full is to understand what is most striking about its application in this case: Title IX does not by its terms create any private cause of action whatsoever, much less define the circumstances in which money damages are available. The only private cause of action under Title IX is judicially implied. The Court has encountered great difficulty in establishing standards for deciding when to imply a private cause of action under a federal statute which is silent on the subject. We try to conform the judicial judgment to the bounds of likely congressional purpose but, as we observed in Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), defining the scope of the private cause of action in general, and the damages remedy in particular, “inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken.” When the statute at issue is a Spending Clause statute, this element of speculation is particularly troubling because it is in significant tension with the requirement that Spending Clause legislation give States clear notice of the consequences of their acceptance of federal funds. Without doubt, the scope of potential damages liability is one of the most significant factors a school would consider in deciding whether to receive federal funds. Accordingly, the Court must not imply a private cause of action for damages unless it can demonstrate that the congressional purpose to create the implied cause of action is so manifest that the State, when accepting federal funds, had clear notice of the terms and conditions of its monetary liability.

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DOCUMENT 11

Russlynn Ali, Assistant Secretary for Civil Rights, U.S. Department of Eductation

Dear Colleague Letter on Sexual Violence 2011

R

usslynn Ali, Assistant Secretary for Civil Rights, “Dear Colleague Letter from Assistant Secretary for Civil Rights,” Office for Civil Rights, U.S. Department of Education. Office of the Assistant Secretary, (April 4, 2011). Footnotes throughout the text have been removed for the sake of brevity.

Dear Colleague:

Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime. Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients,

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which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence. Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX. The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college. The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college. According to data collected under the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f ), in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act. This problem is not limited to college. During the 2007–2008 school year, there were 800 reported incidents of rape and attempted rape and 3,800 reported incidents of other sexual batteries at public high schools. Additionally, the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population. The Department is deeply concerned about this problem and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities. This letter begins with a discussion of Title IX’s requirements related to student-on-student sexual harassment, including sexual violence, and explains schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence. These requirements are discussed in detail in OCR’s Revised Sexual Harassment Guidance issued in 2001 (2001 Guidance). This letter supplements the 2001 Guidance by providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence. This letter concludes by discussing the proactive efforts schools can take to prevent sexual harassment and violence, and by providing examples of remedies that schools and OCR may use to end such conduct, prevent its recurrence, and address its effects. Although some examples contained in this letter

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are applicable only in the postsecondary context, sexual harassment and violence also are concerns for school districts. The Title IX obligations discussed in this letter apply equally to school districts unless otherwise noted.

TITLE IX REQUIREMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL VIOLENCE Schools’ Obligations to Respond to Sexual Harassment and Sexual Violence Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX. As explained in OCR’s 2001 Guidance, when a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment. Title IX protects students from sexual harassment in a school’s education programs and activities. This means that Title IX protects students in connection with all the academic, educational, extracurricular, athletic, and other programs of the school, whether those programs take place in a school’s facilities, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere. For example, Title IX protects a student who is sexually assaulted by a fellow student during a school-sponsored field trip. If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. Schools also are required to publish a notice of nondiscrimination and to adopt and publish grievance procedures. Because of these requirements, which are discussed in greater detail in the following section, schools need to ensure that their employees are trained so that they know to report harassment to appropriate school officials, and

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so that employees with the authority to address harassment know how to respond properly. Training for employees should include practical information about how to identify and report sexual harassment and violence. OCR recommends that this training be provided to any employees likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors. Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school’s education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. For example, if a student alleges that he or she was sexually assaulted by another student off school grounds, and that upon returning to school he or she was taunted and harassed by other students who are the alleged perpetrator’s friends, the school should take the earlier sexual assault into account in determining whether there is a sexually hostile environment. The school also should take steps to protect a student who was assaulted off campus from further sexual harassment or retaliation from the perpetrator and his or her associates. Regardless of whether a harassed student, his or her parent, or a third party files a complaint under the school’s grievance procedures or otherwise requests action on the student’s behalf, a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. As discussed later in this letter, the school’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct. The specific steps in a school’s investigation will vary depending upon the nature of the allegations, the age of the student or students involved (particularly in elementary and secondary schools), the size and administrative structure of the school, and other factors. Yet as discussed in more detail below, the school’s inquiry must in all cases be prompt, thorough, and impartial. In cases involving potential criminal conduct, school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified. Schools also should inform and obtain consent from the complainant (or the complainant’s parents if the complainant is under 18 and does not

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attend a postsecondary institution) before beginning an investigation. If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited. The school also should tell the complainant that Title IX prohibits retaliation, and that school officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs. As discussed in the 2001 Guidance, if the complainant continues to ask that his or her name or other identifiable information not be revealed, the school should evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students. Thus, the school may weigh the request for confidentiality against the following factors: the seriousness of the alleged harassment; the complainant’s age; whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. The school should inform the complainant if it cannot ensure confidentiality. Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence. Examples of such steps are discussed later in this letter. Compliance with Title IX, such as publishing a notice of nondiscrimination, designating an employee to coordinate Title IX compliance, and adopting and publishing grievance procedures, can serve as preventive measures against harassment. Combined with education and training programs, these measures can help ensure that all students and employees recognize the nature of sexual harassment and violence, and understand that the school will not tolerate such conduct. Indeed, these measures may bring potentially problematic conduct to the school’s attention before it becomes serious enough to create a hostile environment. Training for administrators, teachers, staff, and students also can help ensure that they understand what types of conduct constitute sexual harassment or violence, can identify warning signals that may need attention, and know how to respond. More detailed information and examples of education and other preventive measures are provided later in this letter.

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Procedural Requirements Pertaining to Sexual Harassment and Sexual Violence Recipients of Federal financial assistance must comply with the procedural requirements outlined in the Title IX implementing regulations. Specifically, a recipient must: (A) Disseminate a notice of nondiscrimination; (B) Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and (C) Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints. These requirements apply to all forms of sexual harassment, including sexual violence, and are important for preventing and effectively responding to sex discrimination. They are discussed in greater detail below. OCR advises recipients to examine their current policies and procedures on sexual harassment and sexual violence to determine whether those policies comply with the requirements articulated in this letter and the 2001 Guidance. Recipients should then implement changes as needed.

(A) Notice of Nondiscrimination The Title IX regulations require that each recipient publish a notice of nondiscrimination stating that the recipient does not discriminate on the basis of sex in its education programs and activities, and that Title IX requires it not to discriminate in such a manner. The notice must state that inquiries concerning the application of Title IX may be referred to the recipient’s Title IX coordinator or to OCR. It should include the name or title, office address, telephone number, and e-mail address for the recipient’s designated Title IX coordinator. The notice must be widely distributed to all students, parents of elementary and secondary students, employees, applicants for admission and employment, and other relevant persons. OCR recommends that the notice be prominently posted on school Web sites and at various locations throughout the school or campus and published in electronic and printed publications of general distribution that provide information to students and employees about the school’s services and policies. The notice should be available and easily accessible on an ongoing basis. Title IX does not require a recipient to adopt a policy specifically prohibiting sexual harassment or sexual violence. As noted in the 2001

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Guidance, however, a recipient’s general policy prohibiting sex discrimination will not be considered effective and would violate Title IX if, because of the lack of a specific policy, students are unaware of what kind of conduct constitutes sexual harassment, including sexual violence, or that such conduct is prohibited sex discrimination. OCR therefore recommends that a recipient’s nondiscrimination policy state that prohibited sex discrimination covers sexual harassment, including sexual violence, and that the policy include examples of the types of conduct that it covers.

(B) Title IX Coordinator The Title IX regulations require a recipient to notify all students and employees of the name or title and contact information of the person designated to coordinate the recipient’s compliance with Title IX. The coordinator’s responsibilities include overseeing all Title IX complaints and identifying and addressing any patterns or systemic problems that arise during the review of such complaints. The Title IX coordinator or designee should be available to meet with students as needed. If a recipient designates more than one Title IX coordinator, the notice should describe each coordinator’s responsibilities (e.g., who will handle complaints by students, faculty, and other employees). The recipient should designate one coordinator as having ultimate oversight responsibility, and the other coordinators should have titles clearly showing that they are in a deputy or supporting role to the senior coordinator. The Title IX coordinators should not have other job responsibilities that may create a conflict of interest. For example, serving as the Title IX coordinator and a disciplinary hearing board member or general counsel may create a conflict of interest. Recipients must ensure that employees designated to serve as Title IX coordinators have adequate training on what constitutes sexual harassment, including sexual violence, and that they understand how the recipient’s grievance procedures operate. Because sexual violence complaints often are filed with the school’s law enforcement unit, all school law enforcement unit employees should receive training on the school’s Title IX grievance procedures and any other procedures used for investigating reports of sexual violence. In addition, these employees should receive copies of the school’s Title IX policies. Schools should instruct law enforcement unit employees both to notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and to report incidents of sexual

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violence to the Title IX coordinator if the complainant consents. The school’s Title IX coordinator or designee should be available to provide assistance to school law enforcement unit employees regarding how to respond appropriately to reports of sexual violence. The Title IX coordinator also should be given access to school law enforcement unit investigation notes and findings as necessary for the Title IX investigation, so long as it does not compromise the criminal investigation.

(C) Grievance Procedures The Title IX regulations require all recipients to adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints. The grievance procedures must apply to sex discrimination complaints filed by students against school employees, other students, or third parties. Title IX does not require a recipient to provide separate grievance procedures for sexual harassment and sexual violence complaints. Therefore, a recipient may use student disciplinary procedures or other separate procedures to resolve such complaints. Any procedures used to adjudicate complaints of sexual harassment or sexual violence, including disciplinary procedures, however, must meet the Title IX requirement of affording a complainant a prompt and equitable resolution. These requirements are discussed in greater detail below. If the recipient relies on disciplinary procedures for Title IX compliance, the Title IX coordinator should review the recipient’s disciplinary procedures to ensure that the procedures comply with the prompt and equitable requirements of Title IX. Grievance procedures generally may include voluntary informal mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints. OCR has frequently advised recipients, however, that it is improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator, and certainly not without appropriate involvement by the school (e.g., participation by a trained counselor, a trained mediator, or, if appropriate, a teacher or administrator). In addition, as stated in the 2001 Guidance, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. Moreover, in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis. OCR recommends that recipients clarify in their grievance procedures that mediation will not be used to resolve sexual assault complaints.

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Prompt and Equitable Requirements As stated in the 2001 Guidance, OCR has identified a number of elements in evaluating whether a school’s grievance procedures provide for prompt and equitable resolution of sexual harassment complaints. These elements also apply to sexual violence complaints because, as explained above, sexual violence is a form of sexual harassment. OCR will review all aspects of a school’s grievance procedures, including the following elements that are critical to achieve compliance with Title IX: •

•

• • •

Notice to students, parents of elementary and secondary students, and employees of the grievance procedures, including where complaints may be filed; Adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence; Designated and reasonably prompt time frames for the major stages of the complaint process; Notice to parties of the outcome of the complaint; and An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

As noted in the 2001 Guidance, procedures adopted by schools will vary in detail, specificity, and components, reflecting differences in the age of students, school sizes and administrative structures, State or local legal requirements, and past experiences. Although OCR examines whether all applicable elements are addressed when investigating sexual harassment complaints, this letter focuses on those elements where our work indicates that more clarification and explanation are needed, including:

(A) Notice of the grievance procedures The procedures for resolving complaints of sex discrimination, including sexual harassment, should be written in language appropriate to the age of the school’s students, easily understood, easily located, and widely distributed. OCR recommends that the grievance procedures be prominently posted on school Web sites; sent electronically to all members of the school community; available at various locations throughout the school or campus; and summarized in or attached to major publications issued by the school, such as handbooks, codes of conduct, and catalogs for students, parents of elementary and secondary students, faculty, and staff.

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(B) Adequate, Reliable, and Impartial Investigation of Complaints OCR’s work indicates that a number of issues related to an adequate, reliable, and impartial investigation arise in sexual harassment and violence complaints. In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably. A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school’s internal Title IX investigation. For instance, if a complainant wants to file a police report, the school should not tell the complainant that it is working toward a solution and instruct, or ask, the complainant to wait to file the report. Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation. Moreover, nothing in an MOU or the criminal investigation itself should prevent a school from notifying complainants of their Title IX rights and the school’s grievance procedures, or from taking interim steps to ensure the safety and well-being of the complainant and the school community while the law enforcement agency’s fact-gathering is in progress. OCR also recommends that a school’s MOU include clear policies on when a school will refer a matter to local law enforcement.

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As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Like Title IX, Title VII prohibits discrimination on the basis of sex. OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX. OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings. Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence. Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing. For example, a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing officer or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing; and a school should not allow the alleged perpetrator to review the complainant’s statement without also allowing the complainant to review the alleged perpetrator’s statement. While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for

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both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings. All persons involved in implementing a recipient’s grievance procedures (e.g., Title IX coordinators, investigators, and adjudicators) must have training or experience in handling complaints of sexual harassment and sexual violence, and in the recipient’s grievance procedures. The training also should include applicable confidentiality requirements. In sexual violence cases, the fact-finder and decision-maker also should have adequate training or knowledge regarding sexual violence. Additionally, a school’s investigation and hearing processes cannot be equitable unless they are impartial. Therefore, any real or perceived conflicts of interest between the fact-finder or decision-maker and the parties should be disclosed. Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

(C) Designated and Reasonably Prompt Time Frames OCR will evaluate whether a school’s grievance procedures specify the time frames for all major stages of the procedures, as well as the process for extending timelines. Grievance procedures should specify the time frame within which: (1) the school will conduct a full investigation of the complaint; (2) both parties receive a response regarding the outcome of the complaint; and (3) the parties may file an appeal, if applicable. Both parties should be given periodic status updates. Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment. For example, the resolution of a complaint involving multiple incidents with multiple complainants likely would take longer than one involving

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a single incident that occurred in a classroom during school hours with a single complainant.

(D) Notice of Outcome Both parties must be notified, in writing, about the outcome of both the complaint and any appeal, i.e., whether harassment was found to have occurred. OCR recommends that schools provide the written determination of the final outcome to the complainant and the alleged perpetrator concurrently. Title IX does not require the school to notify the alleged perpetrator of the outcome before it notifies the complainant. Due to the intersection of Title IX and FERPA requirements, OCR recognizes that there may be confusion regarding what information a school may disclose to the complainant. FERPA generally prohibits the nonconsensual disclosure of personally identifiable information from a student’s “education record.” However, as stated in the 2001 Guidance, FERPA permits a school to disclose to the harassed student information about the sanction imposed upon a student who was found to have engaged in harassment when the sanction directly relates to the harassed student. This includes an order that the harasser stay away from the harassed student, or that the harasser is prohibited from attending school for a period of time, or transferred to other classes or another residence hall. Disclosure of other information in the student’s “education record,” including information about sanctions that do not relate to the harassed student, may result in a violation of FERPA. Further, when the conduct involves a crime of violence or a nonforcible sex offense, FERPA permits a postsecondary institution to disclose to the alleged victim the final results of a disciplinary proceeding against the alleged perpetrator, regardless of whether the institution concluded that a violation was committed. Additionally, a postsecondary institution may disclose to anyone—not just the alleged victim—the final results of a disciplinary proceeding if it determines that the student is an alleged perpetrator of a crime of violence or a non-forcible sex offense, and, with respect to the allegation made, the student has committed a violation of the institution’s rules or policies. Postsecondary institutions also are subject to additional rules under the Clery Act. This law, which applies to postsecondary institutions that participate in Federal student financial aid programs, requires that “both the accuser and the accused must be informed of the outcome of any institutional disciplinary proceeding brought alleging a sex offense.” Compliance with this requirement does not constitute a violation of FERPA. Furthermore, the FERPA limitations on redisclosure of information do

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not apply to information that postsecondary institutions are required to disclose under the Clery Act. Accordingly, postsecondary institutions may not require a complainant to abide by a nondisclosure agreement, in writing or otherwise, that would prevent the redisclosure of this information.

STEPS TO PREVENT SEXUAL HARASSMENT AND SEXUAL VIOLENCE AND CORRECT ITS DISCRIMINATORY EFFECTS ON THE COMPLAINANT AND OTHERS Education and Prevention In addition to ensuring full compliance with Title IX, schools should take proactive measures to prevent sexual harassment and violence. OCR recommends that all schools implement preventive education programs and make victim resources, including comprehensive victim services, available. Schools may want to include these education programs in their (1) orientation programs for new students, faculty, staff, and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches; and (4) school assemblies and “back to school nights.” These programs should include a discussion of what constitutes sexual harassment and sexual violence, the school’s policies and disciplinary procedures, and the consequences of violating these policies. The education programs also should include information aimed at encouraging students to report incidents of sexual violence to the appropriate school and law enforcement authorities. Schools should be aware that victims or third parties may be deterred from reporting incidents if alcohol, drugs, or other violations of school or campus rules were involved. As a result, schools should consider whether their disciplinary policies have a chilling effect on victims’ or other students’ reporting of sexual violence offenses. For example, OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence. OCR also recommends that schools develop specific sexual violence materials that include the schools’ policies, rules, and resources for students, faculty, coaches, and administrators. Schools also should include such information in their employee handbook and any handbooks that student

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athletes and members of student activity groups receive. These materials should include where and to whom students should go if they are victims of sexual violence. These materials also should tell students and school employees what to do if they learn of an incident of sexual violence. Schools also should assess student activities regularly to ensure that the practices and behavior of students do not violate the schools’ policies against sexual harassment and sexual violence.

Remedies and Enforcement As discussed above, if a school determines that sexual harassment that creates a hostile environment has occurred, it must take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects. In addition to counseling or taking disciplinary action against the harasser, effective corrective action may require remedies for the complainant, as well as changes to the school’s overall services or policies. Examples of these actions are discussed in greater detail below. Title IX requires a school to take steps to protect the complainant as necessary, including taking interim steps before the final outcome of the investigation. The school should undertake these steps promptly once it has notice of a sexual harassment or violence allegation. The school should notify the complainant of his or her options to avoid contact with the alleged perpetrator and allow students to change academic or living situations as appropriate. For instance, the school may prohibit the alleged perpetrator from having any contact with the complainant pending the results of the school’s investigation. When taking steps to separate the complainant and alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain. In addition, schools should ensure that complainants are aware of their Title IX rights and any available resources, such as counseling, health, and mental health services, and their right to file a complaint with local law enforcement. Schools should be aware that complaints of sexual harassment or violence may be followed by retaliation by the alleged perpetrator or his or her associates. For instance, friends of the alleged perpetrator may subject the complainant to name-calling and taunting. As part of their Title IX obligations, schools must have policies and procedures in place to protect against retaliatory harassment. At a minimum, schools must ensure that complainants and their parents, if appropriate, know how to report any subsequent problems, and should follow-up with complainants to determine whether any retaliation or new incidents of harassment have occurred.

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When OCR finds that a school has not taken prompt and effective steps to respond to sexual harassment or violence, OCR will seek appropriate remedies for both the complainant and the broader student population. When conducting Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients. When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation. Schools should proactively consider the following remedies when determining how to respond to sexual harassment or violence. These are the same types of remedies that OCR would seek in its cases. Depending on the specific nature of the problem, remedies for the complainant might include, but are not limited to: • • •

• • • •

•

providing an escort to ensure that the complainant can move safely between classes and activities; ensuring that the complainant and alleged perpetrator do not attend the same classes; moving the complainant or alleged perpetrator to a different residence hall or, in the case of an elementary or secondary school student, to another school within the district; providing counseling services; providing medical services; providing academic support services, such as tutoring; arranging for the complainant to re-take a course or withdraw from a class without penalty, including ensuring that any changes do not adversely affect the complainant’s academic record; and reviewing any disciplinary actions taken against the complainant to see if there is a causal connection between the harassment and the misconduct that may have resulted in the complainant being disciplined.

Remedies for the broader student population might include, but are not limited to:

Counseling and Training •

offering counseling, health, mental health, or other holistic and comprehensive victim services to all students affected by sexual harassment or sexual violence, and notifying students of campus and community counseling, health, mental health, and other student services;

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•

•

designating an individual from the school’s counseling center to be “on call” to assist victims of sexual harassment or violence whenever needed; training the Title IX coordinator and any other employees who are involved in processing, investigating, or resolving complaints of sexual harassment or sexual violence, including providing training on: – – –

• • •

• •

the school’s Title IX responsibilities to address allegations of sexual harassment or violence how to conduct Title IX investigations information on the link between alcohol and drug abuse and sexual harassment or violence and best practices to address that link;

training all school law enforcement unit personnel on the school’s Title IX; responsibilities and handling of sexual harassment or violence complaints; training all employees who interact with students regularly on recognizing and appropriately addressing allegations of sexual harassment or violence under Title IX; and informing students of their options to notify proper law enforcement authorities, including school and local police, and the option to be assisted by school employees in notifying those authorities.

Development of Materials and Implementation of Policies and Procedures •

•

developing materials on sexual harassment and violence, which should be distributed to students during orientation and upon receipt of complaints, as well as widely posted throughout school buildings and residence halls, and which should include: what constitutes sexual harassment or violence – – – –

what to do if a student has been the victim of sexual harassment or violence contact information for counseling and victim services on and off school grounds o how to file a complaint with the school how to contact the school’s Title IX coordinator what the school will do to respond to allegations of sexual harassment or violence, including the interim measures that can be taken;

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•

•

•

requiring the Title IX coordinator to communicate regularly with the school’s law enforcement unit investigating cases and to provide information to law enforcement unit personnel regarding Title IX requirements; requiring the Title IX coordinator to review all evidence in a sexual harassment or sexual violence case brought before the school’s disciplinary committee to determine whether the complainant is entitled to a remedy under Title IX that was not available through the disciplinary committee; requiring the school to create a committee of students and school officials to identify strategies for ensuring that students: – – – – –

•

•

know the school’s prohibition against sex discrimination, including sexual harassment and violence recognize sex discrimination, sexual harassment, and sexual violence when they occur understand how and to whom to report any incidents know the connection between alcohol and drug abuse and sexual harassment or violence feel comfortable that school officials will respond promptly and equitably to reports of sexual harassment or violence;

issuing new policy statements or other steps that clearly communicate that the school does not tolerate sexual harassment and violence and will respond to any incidents and to any student who reports such incidents; and revising grievance procedures used to handle sexual harassment and violence complaints to ensure that they are prompt and equitable, as required by Title IX.

School Investigations and Reports to OCR •

• •

•

conducting periodic assessments of student activities to ensure that the practices and behavior of students do not violate the school’s policies against sexual harassment and violence; investigating whether any other students also may have been subjected to sexual harassment or violence; investigating whether school employees with knowledge of allegations of sexual harassment or violence failed to carry out their duties in responding to those allegations; conducting, in conjunction with student leaders, a school or campus “climate check” to assess the effectiveness of efforts to ensure that the school is free from sexual harassment and violence, and using the

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•

resulting information to inform future proactive steps that will be taken by the school; and submitting to OCR copies of all grievances filed by students alleging sexual harassment or violence, and providing OCR with documentation related to the investigation of each complaint, such as witness interviews, investigator notes, evidence submitted by the parties, investigative reports and summaries, any final disposition letters, disciplinary records, and documentation regarding any appeals.

CONCLUSION The Department is committed to ensuring that all students feel safe and have the opportunity to benefit fully from their schools’ education programs and activities. As part of this commitment, OCR provides technical assistance to assist recipients in achieving voluntary compliance with Title IX. ... Thank you for your prompt attention to this matter. I look forward to continuing our work together to ensure that all students have an equal opportunity to learn in a safe and respectful school climate. Sincerely, Russlynn Ali Assistant Secretary for Civil Rights

DOCUMENT 12

Catherine E. Lhamon, Assistant Secretary for Civil Rights, U.S. Department of Education Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice

Dear Colleague Letter: Transgender Students 2016

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atherine E. Lhamon, Assistant Secretary of Education, and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, “Dear Colleague Letter: Transgender Students,” United States Department of Education, Office for Civil Rights and Department of Justice, (May 13, 2016). Footnotes throughout the document have been eliminated for the sake of brevity.

Dear Colleague: Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.1 This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. This letter summarizes a school’s Title IX obligations regarding transgender students and explains how the U.S. Department of

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Education (ED) and the U.S. Department of Justice (DOJ) evaluate a school’s compliance with these obligations. ED and DOJ (the Departments) have determined that this letter is significant guidance. This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations. ... Accompanying this letter is a separate document from ED’s Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students. The examples in that document are taken from policies that school districts, state education agencies, and high school athletics associations around the country have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment. Schools are encouraged to consult that document for practical ways to meet Title IX’s requirements.

TERMINOLOGY •

• •

•

Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth. Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth. Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth. Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.

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COMPLIANCE WITH TITLE IX As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations. The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination. The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity. A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.

1. Safe and Nondiscriminatory Environment Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex, and the Departments enforce Title IX accordingly. If sex-based harassment creates a hostile environment,

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the school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX. For a more detailed discussion of Title IX requirements related to sex-based harassment, see guidance documents from ED’s Office for Civil Rights (OCR) that are specific to this topic.

2. Identification Documents, Names, and Pronouns Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.

3. Sex-Segregated Activities and Facilities Title IX’s implementing regulations permit a school to provide sexsegregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity. •

•

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy. Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students. Title IX does not prohibit age-appropriate,

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•

•

•

•

•

tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport. Single-Sex Classes. Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances. When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity. Single-Sex Schools. Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges. Those schools are therefore permitted under Title IX to set their own sex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses. Social Fraternities and Sororities. Title IX does not apply to the membership practices of social fraternities and sororities. Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses. Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single- occupancy accommodations if it so chooses. Other Sex-Specific Activities and Rules. Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).

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4. Privacy and Education Records Protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity. The Departments may find a Title IX violation when a school limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth. Nonconsensual disclosure of personally identifiable information (PII), such as a student’s birth name or sex assigned at birth, could be harmful to or invade the privacy of transgender students and may also violate the Family Educational Rights and Privacy Act (FERPA). A school may maintain records with this information, but such records should be kept confidential. •

•

•

Disclosure of Personally Identifiable Information from Education Records. FERPA generally prevents the nonconsensual disclosure of PII from a student’s education records; one exception is that records may be disclosed to individual school personnel who have been determined to have a legitimate educational interest in the information. Even when a student has disclosed the student’s transgender status to some members of the school community, schools may not rely on this FERPA exception to disclose PII from education records to other school personnel who do not have a legitimate educational interest in the information. Inappropriately disclosing (or requiring students or their parents to disclose) PII from education records to the school community may violate FERPA and interfere with transgender students’ right under Title IX to be treated consistent with their gender identity. Disclosure of Directory Information. Under FERPA’s implementing regulations, a school may disclose appropriately designated directory information from a student’s education record if disclosure would not generally be considered harmful or an invasion of privacy. Directory information may include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. School officials may not designate students’ sex, including transgender status, as directory information because doing so could be harmful or an invasion of privacy. A school also must allow eligible students (i.e., students who have reached 18 years of age or are attending a postsecondary institution) or parents, as appropriate, a reasonable amount of time to request that the school not disclose a student’s directory information. Amendment or Correction of Education Records. A school may receive requests to correct a student’s education records to make

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them consistent with the student’s gender identity. Updating a transgender student’s education records to reflect the student’s gender identity and new name will help protect privacy and ensure personnel consistently use appropriate names and pronouns. –

–

Under FERPA, a school must consider the request of an eligible student or parent to amend information in the student’s education records that is inaccurate, misleading, or in violation of the student’s privacy rights. If the school does not amend the record, it must inform the requestor of its decision and of the right to a hearing. If, after the hearing, the school does not amend the record, it must inform the requestor of the right to insert a statement in the record with the requestor’s comments on the contested information, a statement that the requestor disagrees with the hearing decision, or both. That statement must be disclosed whenever the record to which the statement relates is disclosed. Under Title IX, a school must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records. If a student or parent complains about the school’s handling of such a request, the school must promptly and equitably resolve the complaint under the school’s Title IX grievance procedures. *

*

*

We appreciate the work that many schools, state agencies, and other organizations have undertaken to make educational programs and activities welcoming, safe, and inclusive for all students.

Sincerely, /s/

/s/

Catherine E. Lhamon Assistant Secretary for Civil Rights

Vanita Gupta Principal Deputy Assistant Attorney General for Civil Rights

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DOCUMENT 13

Betsy DeVos, Secretary of Education

Prepared Remarks on Title IX Enforcement. George Mason University 2017

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etsy DeVos, Secretary of Education, “Prepared Remarks on Title IX Enforcement,” George Mason University (September 7, 2017).

The following is a transcript of the Secretary’s speech: Thank you Dean Henry Butler for the kind introduction and for the opportunity to be here. Thank you President Angel Cabrera for your leadership of George Mason University. And to the students and faculty with us today, thank you for making time to be here during this busy day of classes. It is a great honor for me to be here today to address a very important topic. Earlier this year marked the 45th anniversary of Title IX, the landmark legislation passed by Congress that seeks to ensure: “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.” The amendment to the Higher Education Act was initially proposed by Democrat Senator Birch Bayh, signed into law by Republican President Richard Nixon, and was later renamed for Congresswoman Patsy Mink, herself a victim of both sex-based and race-based discrimination as a thirdgeneration Japanese-American. Mink’s law has served an important role in shaping our Nation’s educational environment. Title IX has helped to

REMARKS ON TITLE IX ENFORCEMENT

make clear that educational institutions have a responsibility to protect every student’s right to learn in a safe environment and to prevent unjust deprivations of that right. It is a responsibility I take seriously, and it is a responsibility that the Department of Education’s Office for Civil Rights takes seriously. We will continue to enforce it and vigorously address all instances where people fall short. Sadly, too many fall short when it comes to their responsibility under Title IX to protect students from sexual misconduct, acts of which are perpetrated on campuses across our nation. The individual impacts of sexual misconduct are lasting, profound, and lamentable. And the emotions around this topic run high for good reason. We need look no further than just outside these walls to see evidence of this. Yet I hope every person—even those who feel they disagree— will lend an ear to what I outline today. I’m glad we live in a country where an open debate of ideas is welcomed and encouraged. Debate, of course, comes with responsibilities. Violence is never the answer when viewpoints diverge. I appreciate that you have the opportunity to attend a university that promotes a higher level of discourse. So let me be clear at the outset: acts of sexual misconduct are reprehensible, disgusting, and unacceptable. They are acts of cowardice and personal weakness, often thinly disguised as strength and power. Such acts are atrocious, and I wish this subject didn’t need to be discussed at all. Every person on every campus across our nation should conduct themselves with self-respect and respect for others. But the current reality is a different story. Since becoming Secretary, I’ve heard from many students whose lives were impacted by sexual misconduct: students who came to campus to gain knowledge, and who instead lost something sacred. We know this much to be true: one rape is one too many. One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many. This conversation may be uncomfortable, but we must have it. It is our moral obligation to get this right. Campus sexual misconduct must continue to be confronted head-on. Never again will these acts only be whispered about in closed-off counseling rooms or swept under the rug. Not one more survivor will be silenced. We will not abandon anyone. We will amplify the voices of survivors who too often feel voiceless. While I listened to the stories of many survivors and their families over these past several months, I couldn’t help but think of my own family. I thought about my two daughters. And I thought about my two sons. Every mother dreads getting that phone call: a despondent child calling with unthinkable news. I cannot imagine receiving that call. Too

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many mothers and fathers are left on the other end of the line completely helpless. I have looked parents in their tear-filled eyes as they recounted their own stories, and each time their pain was palpable. I’m haunted by the story one brave young woman told me. She was targeted and victimized by her college boyfriend—someone she thought cared about her. He looked on as his roommate attempted to rape her. She escaped her harrowing encounter, but too many do not. For too many, an incident like this means something even worse. There is no way to avoid the devastating reality of campus sexual misconduct: lives have been lost. Lives of victims. And lives of the accused. Some of you hearing my voice know someone who took his or her own life because they thought their future was lost; because they saw no way out; because they lost hope. One mother told me her son has attempted to take his life multiple times. Each time she opens the door to his bedroom, she doesn’t know whether she will find him alive or dead. No mother, no parent, no student should be living that reality. We are here today for those families. We need to remember that we’re not just talking about faceless “cases.” We are talking about people’s lives. Everything we do must recognize this before anything else. And we’re here today because the previous administration helped elevate this issue in American public life. They listened to survivors, who have brought this issue out from the backrooms of student life offices and into the light of day. I am grateful to those who endeavored to end sexual misconduct on campuses. But good intentions alone are not enough. Justice demands humility, wisdom, and prudence. It requires a serious pursuit of truth. And so, this is why I recently hosted a summit to better understand all perspectives: survivors, falsely accused students and educational institutions, both K-12 and higher ed. I wanted to learn from as many as I could because a conversation that excludes some becomes a conversation for none. We are having this conversation with and for all students. Here is what I’ve learned: the truth is that the system established by the prior administration has failed too many students. Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved. That’s why we must do better, because the current approach isn’t working. Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate. Where does that leave institutions, which are forced to be judge and jury? Where does that leave parents? Where does that leave students?

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This failed system has generated hundreds upon hundreds of cases in the Department’s Office for Civil Rights, mostly filed by students who reported sexual misconduct and believe their schools let them down. It has also generated dozens upon dozens of lawsuits filed in courts across the land by students punished for sexual misconduct who also believe their schools let them down. The current failed system left one student to fend for herself at a university disciplinary hearing. She told her university that another student sexually assaulted her in her dorm room. In turn, her university told her she would have to prosecute the case herself. Without any legal training whatsoever, she had to prepare an opening statement, fix exhibits and find witnesses. “I don’t think it’s the rape that makes the person a victim,” the student told a reporter. She said it is the failure of the system that turns a survivor into a victim. This is the current reality. You may have recently read about a disturbing case in California. It’s the story of an athlete, his girlfriend and the failed system. The couple was described as “playfully roughhousing,” but a witness thought otherwise and the incident was reported to the university’s Title IX coordinator. The young woman repeatedly assured campus officials she had not been abused nor had any misconduct occurred. But because of the failed system, university administrators told her they knew better. They dismissed the young man, her boyfriend, from the football team and expelled him from school. “When I told the truth,” the young woman said, “I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled.” This is the current reality. Another student at a different school saw her rapist go free. He was found responsible by the school, but in doing so, the failed system denied him due process. He sued the school, and after several appeals in civil court, he walked free. This is the current reality. A student on another campus is under a Title IX investigation for a wrong answer on a quiz. The question asked the name of the class Lab instructor. The student didn’t know the instructor’s name, so he made one up—Sarah Jackson—which unbeknownst to him turned out to be the name of a model. He was given a zero and told that his answer was “inappropriate” because it allegedly objectified the female instructor. He was informed that his answer “meets the Title IX definition of sexual harassment.” His university opened an investigation without any complainants. This is the current reality. I also think of a student I met who honorably served our country in the Navy and wanted to continue his education after his service. But he didn’t know the first thing about higher education. He Googled “how to apply to college” and applied to one nearby, an HBCU. He was accepted

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and became the first in his family to attend college. The student told me that as graduation approached, his grandmother beamed with pride. She had already purchased a flight and picked out her Sunday best for the occasion. But three weeks before graduation, he saw his future dashed. This young man was suspended via a campus-wide email which declared him a “threat to the campus community.” When he tried to learn the reason for his suspension, he was barred from campus. He was not afforded counsel by the college and couldn’t afford counsel himself. Eventually, he found a lawyer who submitted a Freedom of Information Act request pro bono—but would do no more. Only through the FOIA was he able to discover he had been accused of sexual harassment, but he was still denied notice of the specific allegations, and he remained suspended. This young man was denied due process. Despondent and without options or hope, after five years of sobriety, he relapsed and attempted to take his own life. He felt he had let down everyone who mattered to him—including, most of all, his grandmother who was so much looking forward to seeing the first member of her family don a cap and gown. “Whatever your accusers say you are,” he told me, “is what people believe you are.” That is the current reality. Here is what it looks like: a student says he or she was sexually assaulted by another student on campus. If he or she isn’t urged to keep quiet or discouraged from reporting it to local law enforcement, the case goes to a school administrator who will act as the judge and jury. The accused may or may not be told of the allegations before a decision is rendered. If there is a hearing, both the survivor and the accused may or may not be allowed legal representation. Whatever evidence is presented may or may not be shown to all parties. Whatever witnesses—if allowed to be called—may or may not be cross-examined. And Washington dictated that schools must use the lowest standard of proof. And now this campus official—who may or may not have any legal training in adjudicating sexual misconduct—is expected to render a judgement. A judgement that changes the direction of both students’ lives. The right to appeal may or may not be available to either party. And no one is permitted to talk about what went on behind closed doors. It’s no wonder so many call these proceedings “kangaroo courts.” Washington’s push to require schools to establish these quasi-legal structures to address sexual misconduct comes up short for far too many students. The current system hasn’t won widespread support, nor has it inspired confidence in its so-called judgments. The results of the current approach? Everyone loses.

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Some suggest that this current system, while imperfect, at least protects survivors and thus must remain untouched. But the reality is it doesn’t even do that. Survivors aren’t well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused. And no student should be forced to sue their way to due process. A system is not fair when the only students who can navigate it are those whose families can afford to buy good lawyers—or any lawyer at all. No school or university should deprive any student of his or her ability to pursue their education because the school fears shaming by—or loss of funding from—Washington. For too long, rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees. In doing so, these appointees failed to comply with basic legal requirements that ensure our so-called “fourth branch of government” does not run amok. Unfortunately, school administrators tell me it has run amok. The Office for Civil Rights has “terrified” schools, one said. Another said that no school feels comfortable calling the Department for simple advice, for fear of putting themselves on the radar and inviting an investigation. One university leader was rightly appalled when he was asked by an Office for Civil Rights official: “Why do you care about the rights of the accused?” Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students. One administrator summed this up clearly when he told me his staff should be “forward looking advocates for how to stop sexual misconduct.” Instead, he said, “they’ve been forced to be backward looking data collectors” to meet the Department’s demands. Faculty from the University of Pennsylvania’s law school also voiced grave concerns about the current approach. They wrote, and I quote, “it exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” Too often, they wrote, “outrage at heinous crimes becomes a justification for shortcuts” in processes. Ultimately, they concluded, “there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.” These professors are right. The failed system imposed policy by political letter, without even the most basic safeguards to test new ideas with those who know this issue all too well. Rather than inviting everyone to the table, the Department insisted it knew better than those who walk side-by-side with students every day. That will no longer be the case. The era of “rule by letter” is over.

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Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today. This unraveling of justice is shameful, it is wholly unAmerican, and it is anathema to the system of self-governance to which our Founders pledged their lives over 240 years ago. There must be a better way forward. Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. These are non-negotiable principles. Any failure to address sexual misconduct on campus fails all students. Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates. And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination. A better way begins with a re-framing. This conversation has too often been framed as a contest between men and women or the rights of sexual misconduct survivors and the due process rights of accused students. The reality is, however, a different picture. There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused. I’ve met them personally. I’ve heard their stories. And the rights of one person can never be paramount to the rights of another. A better way means that due process is not an abstract legal principle only discussed in lecture halls. Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one. The notion that a school must diminish due process rights to better serve the “victim” only creates more victims. A better way also means we shouldn’t demand anyone become something they are not. Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served. A better way is also being more precise in the definition of sexual misconduct. Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment. Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes. Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is. Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in

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our democracy. Harassment codes which trample speech rights derail the primary mission of a school to pursue truth. A better way is ultimately about recognizing that schools exist—first and foremost—to educate. Their core obligation under Title IX is to ensure all students can pursue their education free of discrimination. Schools tend to do a good job, as they should, of making appropriate accommodations that don’t infringe on the rights of others. While a Title IX complaint is pending, schools usually make academic accommodations such as adjusting schedules, changing dorm assignments, and postponing papers or exams. But there is a fundamental difference between making these sorts of accommodations for accusers—and schools which seek to punish the accused before a fair decision has been rendered. There is a competency gap here. Washington has insisted that schools step into roles that go beyond the mission of these institutions. This doesn’t mean schools don’t have a role. They do. But we should also draw on medical professionals, counselors, clergy, and law enforcement for their expertise. And so, a better way includes pursuing alternatives that assist schools in achieving justice for all students. In order to ensure that America’s schools employ clear, equitable, just, and fair procedures that inspire trust and confidence, we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way. We will seek public feedback and combine institutional knowledge, professional expertise, and the experiences of students to replace the current approach with a workable, effective, and fair system. To implement sustainable solutions, institutions must be mindful of the rights of every student. No one benefits from a system that does not have the public’s trust—not survivors, not accused students, not institutions and not the public. Other groups have already made progress on these difficult issues. The American Bar Association established a task force comprised of lawyers and advocates from diverse backgrounds and varying perspectives. They found consensus and offered substantive ideas on how we can do better. Schools should find their recommendations useful. The American College of Trial Lawyers also gathered experts from across the country to produce reasonable responses to the current failed system. An open letter from Harvard’s law school faculty provides important perspectives and insights that will be helpful as we pursue a better way. Another promising idea comes from two former prosecutors, Gina Smith and Leslie Gomez. Both of them have spent their careers specializing

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in sexual misconduct cases. They propose a “Regional Center” model; and it is being explored by a number of states today. The model sets up a voluntary, opt-in Center where professionally-trained experts handle Title IX investigations and adjudications. It looks something like this: in partnership among states and their Attorneys General, participating schools refer to the Center any Title IX incident which rises to a criminal level. The Center cooperates with local law enforcement and has access to resources to collect and preserve forensic evidence, facilitate— but never require—criminal prosecutions, and apply fair investigative techniques to gather and evaluate all relevant evidence to determine whether sexual misconduct occurred. This insures that students are not charged by school-based tribunals on the basis of hearsay or incomplete evidence. This model allows educators to focus on what they do best: educate. These are only a few examples that allow for a more effective and equitable enforcement of Title IX. Our interest is in exploring all alternatives that would help schools meet their Title IX obligations and protect all students. We welcome input and look forward to hearing more ideas. Schools have an opportunity to help shape and improve the system for all their students. But they also have a responsibility to do better by their students. This is not about letting institutions off the hook. They still have important work to do. A survivor told me that she is tired of feeling like the burden of ensuring her school addresses Title IX falls on her shoulders. She is right. The burden is not hers, nor is it any student’s burden. We need to act as if any of these students were one of our own loved ones. One young woman made this clear to me when she told me her story of the failed system. Both as a falsely accused student, and as a survivor. She had recently gone through a bad break-up with her boyfriend. Another female student, one of her close friends, sought to console her— except in all the wrong ways. The friend showed up and made an unwanted sexual advance. Upset about being rejected by the heartbroken student, the young woman who was supposed to be there as a friend, instead turned a lighthearted gesture into a full-scale Title IX incident. Shockingly, the school punished the student who only needed a friend after a break-up. This student then revealed to me that she had been sexually assaulted earlier in life. “I’ve been on both sides of this issue,” she told me, “and on neither side did they get it right.” We can and must get it right for her, and for all students. We must continue to condemn the scourge of sexual misconduct on our campuses. We can do a better job of making sure the handling of complaints is

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fair and accurate. We can do a better job of preventing misconduct through education rather than reacting after lives have already been ruined. We can do a better job of helping institutions get it right. And we can do a better job for each other. The truth is: we must do better for each other and with each other. May God bless all of you, and may He continue to bless our great Nation.

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Page numbers in bold refer to tables, and those in italics refer to figures. Administrative Procedures Act (APA) 15, 71, 78–79, 105, 129, 131 administrative remedy 47 affirmative action 5, 12 affirmative consent policy 79–80 Ali, Russlynn 17, 64, 66, 71, 72, 82 American Association of University Professors (AAUP) 75, 82, 98 American Civil Liberties Union 90, 96 “American Women” (PCSW) 4 Antioch University 79–80 Association for Intercollegiate Athletics for Women (AIAW) 24–25 athletics: court decisions on 35–37, 37; current guidelines on 28–32; effects on 16; end-result equality and 12; before enforcement 24–25; example students and 22, 24, 37; guidance document on 27–28, 100; implementing regulations 31, 125–128; interest levels in 28; introduction to 21–22; regulations relating to 31; remaining controversies regarding 38–40; statutory text on 25–27, 31; see also Three-Part Test Bayh, Birch 1, 7, 9, 25–26 beyond a reasonable doubt standard 75 biological differences 13, 14, 92, 94–95

Blackstone, William 77 Bradwell, Myra 3 Brown University 36 Buzuvis, Erin 75 Byers, Walter 25 Califano, Joseph 28 Cannon, Geraldine 46–48 Cannon v. University of Chicago 44, 46–48, 49, 51, 55, 57, 80, 81, 147–157 Cantalupo, Nancy Chi 66 Cantú, Norma 12, 17, 34–35, 44–45, 57, 58–59, 80, 81 Carter, Jimmy 28, 32 Chasten, Brandi 33 Civil Rights Act (1964) 3, 4, 5, 9, 47 Civil Rights Restoration Act (1987) 2, 12, 33, 99, 158–160 Clarification of Intercollegiate Athletics Policy (1996) 31, 34 clear and convincing standard 74–75 Clinton, Bill 35, 57 Cohen, Amy 36 Cohen v. Brown 36, 37 Colorado State University 36 Constitution: discretionary bureaucracy and 101–106; Equal Rights Amendment (ERA) 4, 7, 61; Fourteenth Amendment 3–4, 6, 6, 9, 80, 90; how to pass amendments

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to 8; Transgender Letter and 75–79 Craig v. Boren 3 Crocker, Phyllis 48 Davis, LaShonda 54–57 Davis v. Monroe County School Board of Education 44, 46, 54–59, 55, 74, 80–83, 81, 180–191 Davison, Fred 26 Dear Colleague Letter on Sexual Violence (2011) 64, 71–75, 100, 192–210 Dear Colleague Letter on Transgender Students (2016): constitutional questions regarding 75–79; contents of 92–94; description of standards in 71–75; impact of 72, 90, 92; obligations imposed by 73; overview of 89; summary of 100; terminology and 96–97; text of 208–214; writing of 66 deliberate indifference standard 53, 55, 74 Department of Health, Education and Welfare (HEW) 10, 14, 21, 27–28, 46 DeVos, Betsy 64, 218–227 discretionary bureaucracy 97–102 disparate impact discrimination 23, 40 Dixon v. Alabama State Board of Education 77 dominance theory 40, 54 due process rights 70–71, 76–79, 82 Educational Amendments Act (1972) 1, 10, 90 “Elimination of Sex Discrimination in Athletics Programs” (HEW) 27–28 end-result equality 12 Equal Employment Opportunities Commission (EEOC) 4, 58 equality: conceptions of 23; end-result 12; gender 94; of opportunity 11–12, 23; of outcome 23; procedural 12; sex 94 Equal Pay Act (1963) 4, 6 Equal Protection Clause 3, 9, 90 Equal Rights Amendment (ERA) 4, 7, 61 equal treatment theory 12 equity feminism 12

Equity in Athletics Disclosure Act (1994) 33 Equity in Athletics Inc. v. United States Department of Education 37 Eramo, Nicole 69 Erdely, Sabrina Rubin 68 Executive Branch 102, 105 Executive Order 11249 (1965) 5, 6, 7–8 Executive Order 11375 (1967) 5, 6 Exemptions (Title IX) 13–14 false acquittal 76 false reports 68–69 Federal Register 14–15 Ford, Gerald 26 Foundation for Individual Rights in Education (FIRE) 75, 82 Fourteenth Amendment 3–4, 6, 6, 9, 80, 90 Franklin, Christine 49–50 Franklin v. Gwinnet School District 2, 44, 48–51, 52, 53, 55, 57, 80, 81 Friedan, Betty 4 full accommodation of interests and abilities 31–32 Gebser, Alida Star 51–53 Gebser v. Lago Vista Independent School District 2, 44, 51–53, 55–58, 55, 80–83, 81, 99, 169–179 gender: definition of 94; sex versus 10–11, 91, 92, 95–96 gender-based harassment 59–60 gender equality 94 gender identity and gender-identity discrimination 11, 17, 89, 91, 92–93, 94, 96–97, 99 gender stereotyping 95–96 gender transition 94 G.G. v. Gloucester County 91 Ginsberg, Ruth Bader 5, 14, 53, 94–95 Gloucester School District 90–92 Green, Edith 8–9, 97–98 Greenberger, Marcia D. 38, 53, 55, 101 Griffiths, Martha 7, 8 Grimm, Gavin 90–92 Grove City College v. Bell 32–34, 37, 99 Gupta, Vanita 11, 17, 90

INDEX

Haffer v. Temple University 35–36 Hamburger, Philip 102 Higher Education Act (1965) 7, 64 Hill, Andrew 49–50 hostile environment harassment 57–58, 59–60 in loco parentis 65 Javits Amendment 26 Johnson, Lyndon B. 5 judicial power 102 Kennedy, Anthony M. 56 Kennedy, John F. 4 Lago Vista Independent School District 51–53 Lhamon, Catherine E. 11, 17, 90, 91, 96–97 liberal feminism 12 McGovern, George 9 Mackinnon, Catharine 17, 48, 50, 54, 58, 96 Madison, James 105 Marbury v. Madison 102 Mink, Patsy 1 monetary liability/damages 44, 46, 48, 50–51, 53, 57, 60 Murray, Pauli 4 Napolitano, Janet 65 National Coalition for Women and Girls in Education 33 National Collegiate Association for Athletics (NCA) 24–25 National Organization for Women (NOW) 4, 60 National School Boards 52 National Women’s Law Center (NWLC) 25, 52, 53, 60, 75 National Wrestling Coaches Association 37 Niemeyer, Paul 95 Nixon, Richard 1, 5 numerical parity 21

Obama, Barack 35, 66, 71, 82, 101 O’Connor, Sandra Day 53, 55, 56 Office of Civil Rights (OCR): absence of checks on 82; authority of 1–2; controversial transformations and 60–61; definition of sex and 93; formal regulations from 14–15; investigations by 35; sexual assault and 75; on sexual harassment 57, 58; see also Three-Part Test; individual documents from opportunity, equality of 11–12, 23 outcome, equality of 23 Policy Clarification (2010) 31 Policy Interpretation (1975) 31 Policy Interpretation for Intercollegiate Athletics (1979) 28, 31, 132–146 preponderance of evidence standard of proof 74–75 President, authority and role of 102, 104–105 President’s Commission on the Status of Women (PCSW) 4, 6 privacy rights 14, 94–95 private right of action 44, 46–51, 60 procedural equality 12 program expansion, history and continuing practice of 30–31 public meaning, original 16 “Questions and Answers on Sexual Violence” (Ali) 71, 81 quid pro quo harassment 57 quota 39, 114, 118 rape shield law 76 Reagan, Ronald 12, 32 regulations, formal 14–15 Regulations, implementing (1975) 31, 125–128 revenue-producing sports 25–26 Reynolds, Gerald 35 Roberts, John 105 Roberts v. Colorado State Board of Agriculture 36, 37 Rolling Stone 69

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Roosevelt, Eleanor 4 rule of law 15–16 Sandler, Bernice 5, 7–8, 25, 111–120 sex: assigned at birth 93, 94; biological 91, 92, 94; gender versus 10–11, 91, 92, 95–96; segregation by 5, 13–14, 13, 92–93, 94–95 sex equality 94 sex stereotyping 95–96, 97 sexual assault: conclusions regarding 82; Constitutional questions regarding 75–79; Dear Colleague letter on 64, 71–75, 100, 192–210; evolution of Title IX involvement in 17, 79–82, 81; problems associated with 65–71; see also individual court cases sexual harassment: court decisions on 2, 15, 55; definition of under Title IX 57–58; evolution of Title IX involvement in 44–45; expansion to cover 44; as form of discrimination 48–49, 99; private right of action and 46–51; sample story on 45–46; as violation of Title IX 17, 51–57; see also individual court cases Sexual Harassment Guidance (1997) 44–45, 46, 57–60, 99, 100, 161–168 Sexual Harassment of Working Women (Mackinnon) 54, 58 Shibley, Robert 79 Simon, Anne E. 48 Statute (1972) 31, 111–114 Stevens, John Paul 52, 53 Subcommittee on Education and Labor 8–9 substantive proportionality 29–30, 35–40 Suggs, Welch 38 Supreme Court: authority of 102; overview of decisions from 17;

private right of action and 15; Sexual Harassment Guidance and 58–59 Three-Part Test: Cantú’s work on 34–35; in context 99; description of 28–32; establishment of 21; impact of 32–38; overview of 16 Title VI 6, 9–10, 49, 60 Title VII 4–5, 6, 49, 58, 60 Title IX: adoption of 1–18; authoring of 9–10; compared to Title VI and Title VII 49; enforcement of 14–16; statutory language of 10–14; text of 1, 121–124; see also individual court cases; individual documents on “Too Strong for a Woman”—The Five Words That Created Title IX (Sandler) 111–120 Tower, Senator 26 Tower Amendment 26 transformations: controversial 60–61; definition of 2; summary of 99, 100 Transgender Letter see Dear Colleague Letter on Transgender Students (2016) transgender students 11, 17, 90–92, 94, 211–217 Trump administration 89, 92 University of Chicago 46–48 University of Virginia 68–69 victim/survivor protection 67–68, 72–73, 75–76 Vinson, Mechelle 54 Waldrop, Frank 51–53 Waxman, Seth 59 Women’s Equity Action League (WEAL) 8 Women’s Sports Foundation 75 wrongful convictions 76