Non-Discrimination with Respect to Students
Title IX of the Education Amendments of 1972
Purpose: Prohibits gender discrimination in any educational program or activity that receives federal funds. Independent undergraduate programs may be single-sex programs, and an exemption is contained for religiously affiliated colleges if a conflict exists between Title IX and their religious tenets. An application for a waiver must be submitted. Sexual harassment of students is also prohibited by Title IX.
A pre-admission Miss/Mrs. inquiry or any inquiry as to marital status is expressly prohibited. See 34 C.F.R. § 106.21(c)(4). Forms should be revised where necessary to ask only for Mr. or Ms., and delete the choice of Mrs. or Miss.
Actions Necessary: Requires the adoption and publication of grievance procedures to resolve employee and student complaints, as well as the designation of a responsible employee to coordinate compliance and notification to all students and employees of the name, address, and phone number of the responsible employee. Requires dissemination of a notice of non-discrimination on the basis of sex. The notice must be included in each announcement bulletin, catalog and application form and posted on the school's website, and OCR suggests sending electronically as well. OCR recommends that the non-discrimination policy state that prohibited sex discrimination covers sexual harassment, including sexual violence, and that the policy include examples of the type of conduct that it covers.
See this link for a summary of the Violence Against Women Act Reauthorization on the Campus Security Act web page.
Dear Colleague Letters
- Clarifies that Coordinator should report directly to Senior Leadership, such as the President.
- States a preference for a full time Title IX Coordinator dedicated to that role.
- Title IX Coordinator should be involved in drafting and revision of policies.
- The website must reflect complete and current information about the School's Title IX Coordinator.
- There should be a link to Title IX page from University homepage.
- Title IX Coordinators must be provided with training
DCL June 25, 2013 on Supporting the Academic Success of Pregnant and Parenting Students Under Title IX of the Education Amendments of 1972, June 25, 2013. See the pamphlet published by DOE. Generally directed to K-12 but also applicable to IHEs. See US Officials Clarify Colleges' Duites to Pregnant and Parenting Students in the Chronicle on June 26, 2013.
Dear Colleague Letter on Sexual Violence, April 4, 2011
This letter clarifies sexual violence is a form of harassment prohibited by Title IX. The letter notes that Title IX coordinators should not have other job responsibilities that create a conflict of interest. Title IX coordinators and the school's law enforcement unit employees should all receive training on Title IX grievance procedures. Grievance procedures should be clarified to note that mediation is not appropriate in sexual assault cases. The letter restates/clarifies what is involved in providing a prompt and equitable resolution of a complaint, as follows:
- Notice to students and employees of the grievance procedures, and where the complaint may be filed;
- Application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties;
- 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; 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.
Schools should not wait for the conclusion of a criminal investigation or criminal proceedings to begin their own Title IX investigation, and if needed, should take immediate steps to protect the student in the educational setting. Any MOU with local police should include clear policies on when a school will refer the matter to local law enforcement. The letter clarifies that a *preponderance of the evidence* standard should be used in place of the higher *clear and convincing evidence* standard which is inconsistent with the standard of proof required for violations of civil rights laws. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings. All persons involved in implementing grievance procedures must have training or experience in handling complaints of sexual harassment and sexual violence, and in the grievance procedures and related confidentiality requirements.
Schools should take proactive measures to prevent harassment and violence, including preventive education programs and victim resources. OCR recommends that schools inform students that the IHE's primary concern is student safety, and that any other rule violations (such as alcohol or drugs) will be dealt with separately. The complainant shoudl be given options to avoid contact with the alleged perpetrator.
FIRE Standard of Evidence Survey: Colleges and Universities Respond to OCR's New Mandate, Oct. 28, 2011. Survey of how colleges and universities have changed their standard of proof in sexual harassment and assault cases in response to the April 4, 2011 Dear Colleague letter which mandated a preponderance of the evidence standard. This survey summarizes the problems with the DCL from a criminal law/due process perspective and raises good questions.
Dear Colleague Letter on Bullying and Discriminatory Harassment, October 26, 2010
This letter addresses the ongoing obligation of schools to launch a comprehensive response to instances of bullying and harasmment, including cyber harassment. Harassment on the basis of gender is covered, even when the harasser is the same sex as the person being harassed. The guidance includes post secondary in its purview and is clearly intended to put the burden on schools to respond to hostile environments created when students are bullied based upon their sexual orientation. The example used shows Title IX is read broadly to cover a situation where the harasser harasses someone simply because he/she believes the victim is not acting as someone of their gender should act.A fact sheet is included.
Dear Colleague Letter on Activities Counted for Title IX Compliance, Sept. 17, 2008
If schools are members of an intercollegiate athletic org, such as NCAA or NAIA, or state high school associations with organizational requirements, they will often satisfy Title IX if the required factors have been built in to the organizational requirements. If not, then there is a case by case analysis that involves looking at items like program structure and administration and team preparation and competition. This letter expounds on those factors.
OCR Dear Colleague Letter dated June 25, 2007 re Pregnant Athletes: This letter reminds schools that terminating or reducing financial assistance on the basis of pregnancy or a related condition is prohibited under Title IX and also reiterates this language from 34 C.F.R.§ 106.40(b)(l).
[a] recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.
Institutions may require pregnant student athletes to obtain a physician's certification of fitness to continue in an educational program or activity, but only if such certification is required of all students for other physical or emotional conditions requiring physician treatment.
April 2010 Policy Clarification: The Dept. of Education will no longer allow universities to rely upon a a survey alone to prove Title IX compliance. See Rule Change Takes Aim at Loophole in Title IX published April 20th, 2010 in the New York Times. See also the April 20, 2010 Policy Clarification. This Dear Colleague letter withdraws the 2005 Additional Clarification which allowed reliance upon student survey results to prove interest in a sport and thus meet Part Three of the Three Part test.
NoPart Three of the three part test states as follows: "The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex."
The 1996 Clarification of the Intercollegiate Athletics Policy Guidance is still in effect, along with the July 2003 Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX. See the Q and A regarding the Dear Colleage Letter.
The Dear Colleague letter sets out the multiple indicators OCR evaluates to determine whether there is unmet athletic interest and ability among students who are members of the underrepresented sex in an institution's athletics program. The letter also provides technical assistance on effective procedures for collecting, maintaining, and evaluating information on students' athletic interests and abilities, and the nondiscriminatory design and implementation of surveys as one assessment technique under Part Three of the three-part test. OCR evaluates the overall weight it will accord the results of a survey by examining the following factors, among others: content of the survey; target population surveyed; response rates and treatment of nonresponses;confidentiality protections; and frequency of conducting the survey.
Cases and Resolution Agreements
Press Release Announcing Settlement Agreement with University of Montana on Sexual Assault and Harassment, May 9, 2013. This page also contains the Resolution Agreement (DOJ DJ Number 169-44-9 OCR Case No. 10126001 as well as the Letter of Findings dated May 9, 2013.
Consent Decree Biedinger v. Quinnipiac University, entered 4/26/13.This is a recommittment to the women's volleyball team for the next three years. See the Quinnipiac Chronicle for a summary and the history of the case below. Additional items were agreed to by the University.
Biedinger v. Quinnipiac University, Ruling on Defendant's Motion to Life Injuction, Case No: 3:09-cv-621 (U.S. D.Ct. Conn.) March 4, 2013. Lengthy (almost 100 pages) overview of Title IX as it relates to women's athletic opportunities. e University brought the present action to lift the injunction, claiming that changes to its athletic program over the last two years brought the institution into compliance with Title IX. The court denied the motion, finding that while the University “is making substantial progress toward Title IX compliance,” the university has not demonstrated a significant change in its allocation of athletic opportunities for women such that the continued enforcement of the injunctive order is no longer equitable.
Biedinger v. Quinnipiac University, (C.A. 2) August 7th, 2012. Docket No. 10-3302-cv
Affirmed lower court ruling. (See below) Quinnipiac University appealed pursuant to 28 U.S.C. § 1292(a)(1) from a permanent injunction ordered on July 22, 2010, by the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge), after a bench trial at which Quinnipiac was found to have violated Title IX of the Education Amendments of 1972 ("Title IX") by failing to afford equal participation opportunities in varsity sports to female students.
The 2nd Circuit Court of Appeals held as follows:
(1)policy clarification and letters issued by Department of Education's Office of Civil Rights (OCR) were entitled to substantial deference;
(2) university's women's running teams represented 67, rather than 78, genuine athletic participation opportunities;
(3) competitive cheerleading participants could not be counted under Title IX; and
(4) university failed to afford female students varsity athletic opportunities substantially proportionate to their enrollment.
Doe v. Blackburn College, U.S. District Court Central District Illinois, No. 06-3205 (Feb. 27, 2012)
Institution won motion for summary judgment on Title IX claim based on sexual assault of student. The court held the institution could not be found to be deliberately indifferent since the identity of the assailant was unknown and the court therefore cannot find that the institution had control over the assailant in order to take remedial action. Quote from Gary Pavela upon review of case: