1. The Evolution of Title IX in
American Higher Education
Alexander Devers
2. • The “Great Society”
o The Civil Rights Act of 1964
o The Voting Rights Act of 1965
o The Elementary and Secondary Education Act of
1965
o The Higher Education Act of 1965
Cooley 2011
The Foundation of Title IX
3. What did this Act do?
• Designed to create more access to college
for those group in American society who
were marginalized or disenfranchised.
The Higher Education Act of 1965
4. What did this Act do?
• The Higher Education Act provided grants
to institutions of higher learning for
research, allocated need-based aid to
student in the form of scholarships and
loans.
Cooley 2011
The Higher Education Act of 1965
5. Higher Education Act Amendments of 1972
• Sponsored by Senator Birch Bayh
• Title IX simply states:
o “No person in the United States shall,
on the basis of sex, be exclude from participation
in, be denied the benefits of, or be
subjected to discrimination under any education
program or activity receiving Federal financial
assistance”
US Department of Justice 2013
Bioguide.congress.gov
6. • Religions institutions with contrary religious
tenets
• institutions training individuals for military
service
• single sex colleges or universities
• fraternities and sororities
• father-son or mother-daughter activities
• beauty pageants
Title IX Exemptions
7. • Title IX in its earliest form, dealt primarily
with Athletics.
• The Government felt that guidance was
required for the law to be enforceable and
equal from institution to institution.
Title IX in the Beginning
8. 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 on mathematics only;
6. Assignment and compensation of coaches and tutors;
7. Provision of locker rooms, practice and competitive facilities;
8. Provision of medical and training facilities and services;
9. Provision of housing and dining facilities and services;
Department of Health, Education and Welfare’s Office of
Civil Rights Ten Factors 1974
9. Grove City College v. Bell
Holding
• 7-2 Decision
• The Court ruled that BEOGs were federal assistance and were subject to
Title IX, leaving Grove City having to Comply with Title IX.
• Only programs that had any interaction with BEOG money were required
to follow Title IX
• Was not a violation of First Amendment Rights.
o Congress has the option to attach conditions to federal funds that an
institution is not obligated to accept
10. Implications and Response
• Seen as a win for the US Department of Education. First
victory for Title IX in Court.
• Congress was unhappy with the narrow scope of the ruling.
• In 1987 the Congress passed the Civil Rights Restoration Act.
• This act was a clear signal to Colleges and Universities that
all aspects of the institution must be in compliance with Title
IX if any Federal or State money is used at the institution.
(Safransky, 2010)
Grove City College v. Bell
12. Christine Franklin v. Gwinnett County Public
Schools
Holding
• “From the earliest years of the Republic, the Court has recognized the
power of the judiciary to award appropriate remedies to redress injuries
actionable in federal court, although it did not always distinguish clearly
between a right to bring suit and a remedy available under such a right.”
• “In sum, we conclude that a damages remedy is available for an action
brought to enforce Title IX. The judgment of the Court of Appeals,
therefore, is reversed and the case is remanded for further proceedings
consistent with this opinion.”
(Christine Franklin v. Gwinnett County Public Schools , 1991)
13. Holding
• “Allowing recovery of damages based on principles of
respondeat superior or constructive notice in cases of
teacher-student sexual harassment would be at odds
with that basic objective, as liability would attach even
though the district had no actual knowledge of the
teacher’s conduct and no opportunity to take action to
end the harassment”
(Gesber v. Lago Vista Independent School District, 1998)
Gesber v. Lago Vista Ind. School District
14. • Created the following doctrine:
o “Actual Knowledge”
o “Deliberate Indifference”
(Kaplin & Lee, 2007, p. 314)
Gesber v. Lago Vista Ind. School District
15. Holding
• “We consider here whether the misconduct identified in Gebser-deliberate
indifference to known acts of harassment- amount 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.”
• “substantial control over both the harasser and the context in which the
known harassment occurred”
Davis v. Monroe County School Board
16. • The institution must have “actual knowledge” of the harassment
• The institution must have responded (or failed to respond) to the harassment with “deliberate
indifference,” which the Davis case defined as a response that is “clearly unreasonable in light of
the known circumstances”
• The institution must have had “substantial control” over the student harasser and the context of
the harassment; and
• The harassment must have been “severe, pervasive, and objectively offensive” to an extent that
the victim of the harassment was in effect deprived of educational opportunities or services.
Gesber-Davis Standard
18. Dear Colleague Letter 2011
“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. “
(US Department of Education: Office of Civil Rights, 2011, p. 1)
19. Dear Colleague Letter 2011
“young women get to college, nearly 20% of them will be victims of attempted or actual sexual assault,
as will about 6% of undergraduate men and Victims of sexual assault are more likely to suffer
academically and from depression, post-traumatic stress disorder, to abuse alcohol and drugs, and to
contemplate suicide.”
(US Department of Education: Office of Civil Rights, 2011, p. 1)
20. Dear Colleague Letter 2011
1.
1. Provides guidance on the unique concerns that arise in sexual violence cases, such as the role of
criminal investigations and a school’s independent responsibility to investigate and address
sexual violence.
2. Provides guidance and examples about key Title IX requirements and how they relate to sexual
violence, such as the requirements to publish a policy against sex discrimination, designate a
Title IX coordinator, and adopt and publish grievance procedures.
3. Discusses proactive efforts schools can take to prevent sexual violence.
4. Provides examples of remedies and enforcement strategies that schools and the Office for Civil
Rights (OCR) may use to respond to sexual violence.
21. Dear Colleague Letter Obligations
1. Once a school knows or reasonably should know of possible sexual violence, it must take
immediate and appropriate action to investigate or otherwise determine what occurred.
2. If sexual violence has occurred, a school must take prompt and effective steps to end the sexual
violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the
subject of a criminal investigation.
3. A school must take steps to protect the complainant as necessary, including interim steps taken
prior to the final outcome of the investigation.
4. A school must provide a grievance procedure for students to file complaints of sex
discrimination, including complaints of sexual violence. These procedures must include an equal
opportunity for both parties to present witnesses and other evidence and the same appeal rights.
5. A school’s grievance procedures must use the preponderance of the evidence standard to resolve
complaints of sex discrimination.
6. A school must notify both parties of the outcome of the complaint.
22. Title IX, DCL and CAS
• CAS
o “Purposeful and functional as social and cultural resources to provide opportunity for
student to learn and develop.”
(The Council for the Advancement of Standards in Higher Education, 2008, p. 9)
• DCL
o “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.”
(US Department of Education: Office of Civil Rights, 2011, p. 15)
23. Title IX/DCL and CAS
• CAS
o Assess student and clientele needs, satisfaction, campus environment and culture, and
finally benchmark the institution against comparable institutions or national standards.
(The Council for the Advancement of Standards in Higher Education, 2008, p. 11)
• DCL
o “A school must take steps to protect the complainant as necessary, including interim steps
taken prior to the final outcome of the investigation. A school must provide a grievance
procedure for students to file complaints of sex discrimination, including complaints of
sexual violence. These procedures must include an equal opportunity for both parties to
present witnesses and other evidence and the same appeal rights.”
(US Department of Education: Office of Civil Rights, 2011, p. 2)
24. Education has long been recognized as the great equalizer in America. -
DCL
25. • Title IX on Gender v. Sex
• Title IX on Sports-Gender v. Sex
• Title IX on Gender Neutral Issues (housing
etc.)
• Title IX and issues of university policy and
police policy
Future Title IX Issues
