Summary of Federal Laws

 

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Non-Discrimination with Respect to Students

 

Title IX of the Education Amendments of 1972

 

20 U.S.C. § 1681 et seq.; 28 C.F.R. § 42.201 et seq., 34 C.F.R. § 106.1 et seq., 45 C.F.R. § 86.1 et seq.

 

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.

 

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.

Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test-Part Three

This March 17, 2005 Dear Colleague letter offers further guidance to schools on how to achieve a safe harbor under the 1979 three part test, which allows a school to show compliance by demonstrating that the interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated by the present program.The guidance endorses the survey approach, and provides a web based prototype survey that can be used as a tool to measure the interest level of the underrepresented sex. The March 17, 2005 guidance states as follows:

 

Based on the analysis of the OCR cases and other information, the User's Guide provides a web-based prototype survey (the "Model Survey") that, if administered consistent with the recommendations in the User's Guide, institutions can rely on as an acceptable method to measure students' interests in participating in sports. When the Model Survey is properly administered to all full-time undergraduate students, or to all such students of the underrepresented sex, results that show insufficient interest to support an additional varsity team for the underrepresented sex will create a presumption of compliance with part three of the three-part test and the Title IX regulatory requirement to provide nondiscriminatory athletic participation opportunities. The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status. Where the Model Survey shows insufficient interest to field a varsity team, OCR will not exercise its discretion to conduct a compliance review of that institution’s implementation of the three-part test.

The guidance also reminds schools that each part of the three part test is an equally sufficient and separate method of complying with the Title IX regulations.

 

History:

 

The Policy Guidance on equal athletic opportunity is set forth at 44 Fed. Reg. 71,413 (Dec. 11, 1979).  On January 16, 1996, the Office for Civil Rights (OCR) published Clarification of the Intercollegiate Athletics Policy Guidance: "The three-part test" as a "Dear Colleague" Letter.  The three-part test provides guidance on interpreting 34 C.F.R. § 106.41(c), the "effective accommodation" provision on athletic equal opportunity under Title IX.  The three-part test sets forth three different ways in which an institution may show "effective accommodation":

• the intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

• 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

• the interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated by the present program.
  

On July 23, 1998, the Office for Civil Rights of the U.S. Department of Education issued another Dear Colleague letter on the above.  The focus of this letter is on the "substantially proportionate" provision of Title IX as it relates to funding of athletic scholarships for men’s and women’s intercollegiate athletic programs.

 

primary focus of the law and the implementing regulations is on sports selection and competition levels. On July 11, 2003 the Department of Education issued a Dear Colleague Letter setting forth

Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.This clarification follows the Report of the Commission on Opportunities in Athletics, entitled Open to All: Title IX at Thirty and issued in February 2003. The Letter makes the following key clarifications:

 

The transmittal letter accompanying the 1996 Clarification issued by the Department described only one of these three separate prongs - substantial proportionality - as a "safe harbor" for Title IX compliance. This led many schools to believe, erroneously, that they must take measures to ensure strict proportionality between the sexes. In fact, each of the three prongs of the test is an equally sufficient means of complying with Title IX, and no one prong is favored. The Department will continue to make clear, as it did in its 1996 Clarification, that “[i]nstitutions have flexibility in providing nondiscriminatory participation opportunities to their students, and OCR does not require quotas.”

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OCR hereby clarifies that nothing in Title IX requires the cutting or reduction of teams in order to demonstrate compliance with Title IX, and that the elimination of teams is a disfavored practice. Because the elimination of teams diminishes opportunities for students who are interested in participating in athletics instead of enhancing opportunities for students who have suffered from discrimination, it is contrary to the spirit of Title IX for the government to require or encourage an institution to eliminate athletic teams. Therefore, in negotiating compliance agreements, OCR's policy will be to seek remedies that do not involve the elimination of teams.

 

 Selected Case Law

 

Revised Sexual Harassment Guidance:   Harassment of Students By School Employees, Other Students, or Third Parties: Title IX was issued by the Department of Education Office for Civil Rights on January 19, 2001.  The guidance is intended to clarify how the Department will approach sexual harassment cases after the Supreme Court’s decisions in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) and Davis v Monroe County Board of Education, 526 U.S. 629 (1999) (summarized above).  The guidance distinguishes the standards applicable to a case for monetary damages, and a case or situation that is addressed pursuant to the regulatory authority of the Department of Education. The Department is basically reiterating its position that the narrower definition of liability set forth in the case law will not prevent the Department of Education from acting on its own interpretation of the law, as set forth in the guidance.

 

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.  See 34 C.F.R. § 106.8.  The policy must be included in each announcement bulletin, catalog and application form.

 

Resources:

 

Aug. 4, 2004 Dear Colleague Letter from OCR

This letter is on Title IX and dissemination of Title IX coordinator identity and notice of non-discrimination

 

April 26, 2004 Dear Colleague Letter from OCR

This letter contains an excellent summary of a school's obligations under Title IX.

 

 

The Commission's Report was issued Feb. 26, 2003. See page 59 of the report for the unanimous recommendations, which the Secretary has indicated he will act upon.