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 FERPA issues relating to directory and non directory information on transgender students
- Clarifies assignment to housing
- Offers guidance use of Rest Rooms and Locker Rooms
- Offers guidance on Participation in Athletics
- Carves out certain exceptions, such as fraternities and sororities and single sex schools
- Letter is considered *Significant Guidance* for compliance with Title IX
See ACE Issue Brief on above Guidance May 16, 2016
- 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
Note: In a number of cases, the respondents in Title IX cases are suing the colleges and universities, claiming lack of due process, gender bias, breach of contract as a result of disciplinary actions (often expulsion) taken against the male respondents. This page will not have an exhaustive list of these cases.
Different from some other cases in that Occidental was able to resolve the investigation to the satisfaction of OCR before the OCR had completed its review.
Doe v. Middlebury College, Case No. 1:15-cv-192-jgm (U.S. Dist. Ct. Vermont)-Ruling on Emergency Motion for Preliminary Injunction (Sept. 16, 2015) John Doe was exonerated from any Title IX misconduct by the study abroad partnership program, but was expelled by Middlebury after an investigation but w/o a hearing. The court granted Doe's preliminary injunction, in this case, brought under breach of contract as policies stated was subject to the study abroad partner's policies, not Middlebury's policies.
OCR Resolution Agreement with University of Virginia dated Sept. 17, 2015
In addition to a number of other steps (similar to what many schools are doing-expanded Title IX personnel, bystander training, new policy and procedures and updated web page) the University hire an Equity Consultant to advise on Title IX issues. In Section IV. 3 the agreement notes the Title IX Coordinator will have ultimate responsibility for "adjudication of whether sexual harassment or violence has occurred in individual cases". Section VI E is very explicit about training (regular mandatory) for all students, including graduate and professional students. Section IX contains a number of specific terms for the climate survey, including formation of a student campus climate committee. See UVA Today dated Sept. 21, 2015 for a summary by UVA of the OCR findings.
OCR Sept. 1, 2015 Letter (42 pages) to Michigan State on handling of two cases under Title IX. This follows a 28 page Resolution Agreement signed by the University and OCR on August 28, 2015.
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:
To what extent does Title IX create a general "duty of care" to protect students from sexual misconduct? The answer is very little. Courts show no inclination to turn Title IX into a federal tort statute applying a low threshold of "foreseeability."
from The Pavela Report: Vol. 17, #9.
Banzhaf v. Garvey; DC Office of Human Rights.Docket No. 11-343-EI 11/29/11
Professor John Banzhaf III, a law professor at George Washington University, filed a complaint of discrimination on July 8, 2011 against President John Garvey, President of The Catholic University of America, in his individual capacity. The complaint alleged that eliminating mixed gender dorms on the CUA campus and requiring students to live in single sex dorms constituted gender discrimination under the DC Human Rights Act. Respondent requested dismissal of the complaint on the grounds that the University had not engaged in or aided and abetted unlawful sex discrimination by institution of the single sex dorm policy. Respondent also asserted that Title IX allows for same sex dormitories. The University also asserted that the policy was implemented for legitimate reasons, including to advance the University's religious mission.
The DC Office of Human Rights granted Respondent President Garvey's motion to dismiss, and stated as follows:
After examining the legislative history of the Act, District case law, Title IX, and other
applicable federal precedent, OHR finds that Complainant fails to state a claim for which relief
can be granted under the Act because same-sex dormitories do not constitute unlawful
discrimination. We hold that the DCHRA does not forbid colleges and universities from making
sex-based distinctions between students. We agree that to follow Complainant's reasoning would
include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead
to absurd results. ****
Finally, we heavily base our decision on Title IX. This law specifically states that same-sex
housing policies on college campuses do not constitute "discrimination" on "the basis of sex."
See 20 U.S. C.§ 1686.
Mansourian et al. v. Board of Regents of the University of California, U.S. District Court, (E.D. Calif),, August 3, 2011 decision. This is a 147 page decision holding UC Davis did not violate Title IX when it cut women from the wrestling team. They were cut not because of gender but due to the inability of the female athletes to compete at the Division I level of intercollegiate wrestling. At the same time, the court found UC Davis has failed to demonstrate compliance with Part Two (continued expansion) of the three part test for compliance with Title IX.
Equity in Athletics, Inc. v. Department of Education, et al. (4th Cir. Court of Appeals) March 9, 2011.the court found no violation of Title IX or state law by James Madison University when it eliminated mens' sports teams to attempt to achieve substantial proportionality.
Biediger et al v. Quinnipiac University, No. 3:09cv621 (US Dist. Court. Conn.) July 21, 2010
The Judge in this case on cheerleading concluded the University's competitive cheerleading team does not qualify as a competitive sport for the purpose of Title IX. At the present time the activity is "too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students."
In relevant part the court noted as follows at page 30:
Despite its athletic elements, however, competitive cheer is not recognized as a sport by the NCAA.
Nor does the NCAA recognize competitive cheer as an “emerging sport,” a provisional designation that allows a university to count the activity toward NCAA revenue distribution and minimum sports sponsorship requirements. 2009-10 NCAA Division I Manual (Def. Ex. EP) § 20.02.25.1, at 298. Furthermore, the Department of Education has not recognized competitive cheerleading to be a sport. Indeed, schools reporting their athletic participation data to the Department of Education under the Equity in Athletics Disclosure Act (“EADA”) are instructed to report their cheerleading team rosters only if they have received a letter from OCR determining that their cheerleading squads are legitimately engaged in sport.
And at page 42:
For the 2009-10 season, Quinnipiac never sought a letter from OCR determining that its
competitive cheer members were athletic participants for the purpose of Title IX. The University
did not seek the letter despite a requirement set forth on the EADA reporting forms, which states
that a school may not count cheerleading as a varsity sport without an OCR determination letter;
instead of requesting the letter, Quinnipiac chose not to include its competitive cheer data on its
The court also noted that since 2000 OCR has never held an intercollegiate varsity cheerleading team program to be a sport for Title IX purposes. The court mentioned four ways in which the sport feel short, and relied upon three of them in issuing a ruling: (opinion at pages 68-69)
First, the fact that the team did not – and could not – engage in any off-campus
recruitment during the season marks a significant departure from what would be expected of any
other competitive Division I varsity team. Although the women on the Quinnipiac competitive
cheer team were athletically able, they would have been all the more talented had Powers been
able to seek out the best competitive cheerleaders around the country, as any other varsity coach
would have been able to do.
Second, the Quinnipiac regular season was inconsistent in terms of the rules governing
the team’s competitions and the types and quality of its opponents. Two basic features of any
other collegiate varsity program are the application of a uniform set of rules for competition and the restriction of competition to contests against other varsity opponents. Those features ensure that play is fair in each game, that teams’ performances can be compared across a season, and
that teams can be distinguished in terms of quality. Those touchstones of a varsity program are
absent from the University’s competitive cheer 2009-10 regular season.
Third, the Quinnipiac post-season fell short of what would be expected of any other
varsity team. Quinnipiac participated in an open invitational that made no distinctions among the
relative strengths of the entrants and required the teams to engage in forms of competition
associated with sideline, and not competitive, cheerleading. Most other varsity sports would
have used some system to separate teams and competitors in terms of quality, and would haveranked, seeded, or excluded teams on the basis of their performances during the regular season.
Moreover, any other varsity sport would not have imposed new rules of competition in the postseason
that teams did not follow during the regular season.
Finally, I note that, although the competitive cheer team received many benefits and
services associated with a typical varsity sport, there were some items that Quinnipiac did not
offer, such as locker space, and the NCAA refused to insure the team members. These are
relatively minor differences between the competitive cheer and other Quinnipiac varsity teams,
however, and they do not weigh heavily in my analysis.
On the facts of the 2009-10 season, I find the Quinnipiac competitive cheer team’s inability to recruit off campus, its inconsistent regular season, and its aberrant post-season sufficient to conclude that the women’s competitive cheer team was not a varsity sport under Title IX. Although I have only identified three areas where the University falls short, those areas are highly important, if not essential, to the experience of participating on an intercollegiate varsity team.Without proper recruiting, team participants can never feel secure that they are surrounded by the best available talent, or at least the quality of talent that would be typical of other Division I varsity teams. Without a consistent schedule, athletes can never know just how good their team is and whether they have distinguished themselves from their opponents over the course of the season. And without a legitimate postseason, it can never be confirmed who deserves to be crowned a champion.
Title IX Resolution Agreement with Xavier University, OCR Docket Number 15-12-Z048
Resolution Agreement: OCR and The University of Notre Dame: June 2011.
This agreement is instructive as to how OCR will deal with investigations post issuance of the April 4, 2011 Dear Colleague Letter. See the Chronicle article dated July 1, 2011 and titled U.of Notre Dame to Clarify Sexual Harassment Policies in Settlement with Education Department. A "preponderance of evidence" standard was adopted. The OCR investigated Notre Dame after a student from St. Mary's College committed suicide after filing a sexual assault complaint against a Notre Dame football player.See the July 1st press release from Notre Dame, as well as the June 30, 2011 OCR letter to the University.
Eastern Michigan University OCR letter. 2010 and Voluntary Resolution Agreement over non-reporting of student murdered in dorm room.
Selected Case Law (archived on another web page)
NACUANOTES Practical Considerations in Developing and Implementing Title IX Campus Climate Surveys by Justin H. Smith, June 23, 2016
Jan. 7, 2016 Senator James Lankford letter to Department of Education questioning authority to issue Dear Colleague Letters on bullying and sexual violence. The Senator asks the Department to clarify the statutory and legal authority underpinning DCL 2010 and DCL 2011.
Generally schools are allowed to assist single sex youth organization w/o violating Title IX.
U.S. Dept. of Education OCR Case Processing Manual Revised Feb. 2015**
Addressing Sexual Assault and Interpersonal Violence NCAA guide released September 3, 2014.
From Not Alone.gov
Sample Language for Title IX Coordinator’s Role in Sexual Misconduct Policy***
Sample Language and Definitions of Prohibited Conduct for Sexual Misconduct Policies
Sample Language for Interim and Supportive Measures ***
Association for Student Conduct Administration (ASCA) ( 2014) Student Conduct Administration and Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconducct on College Campuses
Rape and Sexual Assault: A Renewed Call to Action: White House Council on Women and Girls: January 2014
AGB Advisory Statement on Sexual Misconduct: Produced in conjunction with NACUA, fall 2013. Designed to give Boards guidance on fiduciary duty and responsibilities on collaboration with leadership on issues related to sexual misconduct.
Women's Sports Foundation Feb. 7, 2012 letter to OCR supporting April 4th DCL, specifically on preponderance of evidence standard and equitable treatment of victims and accused students.
January 2001 *Revised Sexual Harassment Guidance: Harassment of Students by School Employees, other Students or Third Parties* US Dept. of Education Office for Civil Rights
U.S. Dept. of Education, Sexual Harassment: It’s Not Academic (Sept. 2008)
NACUANOTES: January 17, 2012: "Dear Colleague" Letter on Title IX and Sexual Violence - Training Obligations
NACUANOTES: January 11, 2012: "Dear Colleague" Letter on Title IX and Sexual Violence - First Steps for Compliance
Title IX Training on April 4th, 2011 Dear Colleague Letter on Sexual Assault: Courtesy of Minnesota State Colleges and Universities, posted with permission of Scott Goings, Assistant General Counsel. Scroll down to May 12, 2011.
NACUANOTES: June 22, 2010: Title IX Implications of Eliminating An Intercollegiate Sports Team by William Thro, University Counsel and Associate Professor of Government, Christopher Newport University
US Commission on Civil Rights Report Title IX Athletics: Accommodating Interests and Abilities (Feb. 2010) A 208 page report that concludes the best method for attaining compliance with the three part test is to used the Model Survey instrument to measure student interest in participating in intercollegiate sports. (Now outdated given OCR 4/20/10 announcement on discontinuing use of survey. See above.)
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.
updated 6-23-16 to add Title IX NACUANOTE