Setting the Stage HBCU 2012

Setting the Stage:
Overview of Title IX
Institutional Obligations and
Enforcement Context

Steven J. Healy

Agenda

• Statutory, regulatory requirements and OCR
guidance
• OCR investigation/enforcement process
• Sexual harassment/violence definitions
• Scope of Title IX coverage
• Summary of institutional obligations

© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC
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Title IX

Title IX of the Education Amendments of
1972 (Title IX), 20 U.S.C. §§ 1681 et
seq., prohibits discrimination on the
basis of sex in education programs or
activities operated by recipients of
Federal financial assistance.

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Title IX Regulations - 34 C.F.R. Part
106
PART 106 – NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

• § 106.4: Assurance of compliance required of recipients
of federal financial assistance
• § 106.8: Designation of responsible employee and adoption
of grievance procedure
• § 106.9: Notification of Title IX nondiscrimination
obligations in education programs and employment
• § 106.31: “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 academic,
extracurricular, research, occupational training, or other
education program or activity . . .”
http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html
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Dep’t of Educ. Office for Civil
Rights

• “The mission of the Office for Civil Rights is to
ensure equal access to education and to
promote educational excellence throughout
the nation through vigorous enforcement of
civil rights.”
• Enforces laws that prohibit discrimination in
education on basis of race, color, national
origin (Title VI), sex (Title IX), disability
(Section 504 & ADA) and age (Age Discrim.
Act 1975)
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Dep’t of Educ. Office for Civil
Rights

• OCR activities:
- Investigates individual complaints
- Conducts agency-initiated compliance
reviews
- Provides technical assistance to promote
voluntary compliance

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OCR Enforcement Process

• Theoretically, negative OCR findings can
result in:
- loss of federal funding through Dept. of
ED proceedings, or
- referral to Dept. of Justice for litigation

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OCR Enforcement Process
• Practically, resolutions are negotiated with
recipients, who take “voluntary remedial
actions”
- Policy issues: policy deficiencies are
remedied
- Example individual complaint remedies:
 Providing changes in class and residential
arrangements
 Providing counseling, academic, medical and
other supports and accommodations
 Providing broad-based training for students,
employees
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Civil Remedies
• Title IX nondiscrimination obligations may be
enforced in court by individual or class
actions
• “deliberate indifference” standard applies
• Compensatory damages and injunctive relief
available
• Plaintiff’s attorney’s fees and costs available
• State nondiscrimination statutes may provide
additional remedies, different liability
standards
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OCR Title IX Resources
• April 2011 OCR Dear Colleague Letter:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf

• OCR 2001 Revised Sexual Harassment Guidance:
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

• 2010 Dear Colleague letter on Harassment and
Bullying:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201010.pdf

• OCR Compliance Reviews & Resolutions:
http://www2.ed.gov/about/offices/list/ocr/docs/investigations
/index.html#title9res
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Sexual Harassment
Definition
• Unwelcome conduct of a sexual nature
- includes unwelcome sexual advances, requests for
sexual favors, and other verbal, nonverbal, or
physical conduct of a sexual nature.
• Student-to-student harassment:
- creates hostile environment if 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 hostile
environment, particularly if the harassment is physical
(e.g. rape=hostile environment)
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Sexual Violence Definition

• Sexual violence is a form of sexual
harassment prohibited by Title IX.
- Sexual violence 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
- May include rape, sexual assault, sexual battery,
and sexual coercion
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Scope of Coverage

• Title IX protects students from sexual
harassment in an institution’s education
programs and activities, including:
- All academic, educational, extracurricular,
athletic, and other programs of the institution
- On-campus, off-campus, in transit, sponsored at
other locations, etc.

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Scope of Coverage

• Institutions may have obligation to respond
to student-on-student sexual harassment that
initially occurred off campus and outside
institution’s education program or activity
- If student files a complaint re off-campus conduct,
institution “must process the complaint in
accordance with its established procedures.”
- Should consider and address on-campus
continuing effects of off-campus sexual harassment
(e.g., on-campus retaliation by alleged perpetrator
or friends)
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Scope of Coverage
• Title IX protects third parties from sexual
harassment or violence in an institution’s
education programs and activities
- E.g.: Title IX protects a high school student
participating in a college’s recruitment program, a
visiting student athlete, and a visitor in a school’s on-
campus residence hall

• Title IX prohibits
discrimination/harassment by faculty, staff
• Title IX protects employees from sexual
harassment
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Scope of Coverage

• Title IX also prohibits gender-based
harassment, including:
- acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility based
on sex, even if those acts do not involve
conduct of a sexual nature
- discriminatory sex stereotyping (e.g.,
harassment of gay and lesbian students)

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Summary of Institutional
Obligations

• If institution knows or reasonably should know
about sexual harassment that creates a hostile
environment, Title IX requires immediate
action to eliminate the harassment, prevent its
recurrence, and address its effects.
• Must designate Title IX Coordinator, publish
notice of nondiscrimination, and adopt and
publish grievance procedures.

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Obligations
• Train employees to report harassment to
appropriate institutional officials
• Train employees with authority to address
harassment, or who are likely to witness it or
receive reports, how to respond properly
- OCR examples: “teachers, school law
enforcement unit employees, school
administrators, school counselors, general
counsels, health personnel, and resident
advisors.”
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Obligations

• Investigate complaints adequately, reliably
and impartially

• Provide grievance procedures that promote
prompt, equitable resolution of complaints

• Undertake education and prevention efforts

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Setting the Stage HBCU 2012

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