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Chapter Twelve

Title IX

A BRIEF HISTORY OF TITLE IX

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assis- tance.”

These direct words have been a point of contention for over forty-five years. Prior to being able to discuss the impact of the Title IX on schools today, we need to review the origins of the law and some of the major milestones that have occurred to the present day.

During the same congressional session in which the Equal Rights Amend- ment was passed and sent to the states for ratification as the 27th Amendment to the Constitution, Congress enacted Title IX of the Educational Amend- ments of 1972, which were signed into law by President Richard Nixon on June 23, 1972. Title IX prohibits sex discrimination in any education pro- gram or activity in an educational institution receiving any type of federal financial assistance.

After it was signed into law, there were some attempted adjustments to Title IX. On May 20, 1974, Senator Tower introduced an amendment to exempt revenue-producing sports from being tabulated when determining Title IX compliance. The Tower amendment was rejected. Soon after, in July 1974, Senator Javits proposed, in lieu of the Tower amendment, a proposal stating that the Department of Health, Education and Welfare (HEW) issue Title IX, including “with respect to intercollegiate athletic activities, reason- able provisions considering the nature of particular sports” (e.g., event-man- agement needs, etc.). The Javits amendment provided that event and uniform expenditures on sports with larger crowds or more expensive equipment did

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-09-06 14:00:53.

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not have to be matched by expenditures for sports without similar needs. The comparison often utilized was between men’s football and men’s cross coun- try in terms of event and uniform expenditures.

In 1975 the HEW issued Title IX regulation 34 C.F.R. Part 106. Signed into law by President Gerald Ford and effective July 21, 1975, it included provisions prohibiting sex discrimination in athletics and established a three- year window for educational institutions to comply. Throughout the remain- der of 1975, Congress reviewed and approved Title IX regulations and re- jected resolutions disapproving them.

• June 4,1975: The present Title IX regulation was transmitted to Congress. • June 5 and June 17, 1975: Senator Helms (S. Con. Res. 46) and Rep.

Martin (H. Con. Res. 310), disapproving Title IX legislation • June 17, 1975: Rep. Martin (H. Con. Res. 311), disapproving Title IX

legislation only as it had to do with intercollegiate athletics • July 16, 1975: Senators Laxalt, Curtis, and Fannin (S. Con. Res. 52),

disapproving application of Title IX to intercollegiate athletics • July 21, 1975: Senator Helms introduced S. 2146 in an attempt to prohibit

the application of Title IX regulations to athletics where participation in those athletic activities was not a required part of the educational institu- tion’s curriculum.

Attempts to constrain, limit, or eliminate Title IX continued throughout the remainder of the decade. On February 17, 1976, the NCAA challenged the legality of Title IX. This attempt failed, but it was indicative of the era, as was Senator Helms’s reintroduction of a bill disapproving Title IX in its entirety as Senate Resolution 535 on January 31, 1977. This also did not pass.

In 1978, the HEW issued proposed policy “Title IX and Intercollegiate Athletics” for notice and comment, with presumption of compliance based on substantially equal average per capita expenditures for men and women athletes and future expansion of opportunity and participation for women. On December 11, 1979, the HEW issued a final policy interpretation, “Title IX and Intercollegiate Athletics.” Rather than relying exclusively on a presump- tion of compliance standard, the final policy focused on an institution’s obli- gation to provide equal opportunity and established the concepts to be con- sidered in assessing actual compliance (currently referred to as the three- prong test: proportionality; history/continuing practice; and effective accom- modation of interests and abilities).

In 1980, the Department of Education (DOE) was established as a cabi- net-level federal department. The DOE was given oversight of Title IX through the Office for Civil Rights of the United States Department of Edu- cation (OCR). The DOE was also an active topic in Ronald Reagan’s cam-

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paign for president in 1980 because he ran on a platform to eliminate the department and limit the overreach of the department, as he identified it during stump speeches. After Reagan’s election, the DOE was not eliminat- ed, but Title IX was impacted both in the courtroom and in legislative assem- blies. In February 28, 1984, for example, the case of Grove City v. Bell limited the scope of Title IX, effectively taking away coverage of athletics except for athletic scholarships. The Supreme Court concluded that Title IX only applied to specific programs (i.e., the Office of Student Financial Aid) that receive federal funds. Under this interpretation, athletic departments were not necessarily covered.

In direct response to this decision and the view that the Court had over- reached in its verdict, the Civil Rights Restoration Act became law on March 22, 1988, after a veto by President Ronald Reagan was overridden. The Civil Rights Restoration Act overrode the Grove City v. Bell decision and mandat- ed that all educational institutions that receive any type of federal financial assistance, whether it be direct or indirect, be bound by Title IX legislation. A current case providing guidance in this matter would be Fitzgerald v. Barnstable. In a unanimous decision, the Court reinstated a lawsuit filed by parents under Title IX, which bars gender discrimination at schools that receive federal funds, and under Section 1983, a broader civil rights law.

Clarification Efforts

Over the next fifteen years, various parts of all branches of government attempted to provide clarification and structure to the issues arising from Title IX.

September 6, 1988: Haffer v. Temple University, a Title IX athletics law- suit won by plaintiff female athletes, gave new direction to athletic depart- ments regarding their budgets, scholarships, and participation rates of male and female athletes.

April 2, 1990: A Title IX Athletics Investigator’s Manual, written by Valerie M. Bonnette and Lamar Daniel, was issued by the OCR.

February 26, 1992: In Franklin v. Gwinnett County Public Schools, the Supreme Court ruled that monetary damages were available under Title IX. Previously, only injunctive relief was available (i.e., the institution would be enjoined from discriminating in the future). Shortly after the Franklin deci- sion, the NCAA completed and published a landmark gender-equity study of its member institutions.

The Equity in Athletics Disclosure Act (EADA), sponsored by Senator Mosley-Braun and Representative Collins, required any coeducational insti- tution of higher education that participated in any federal student financial aid program and sponsored an intercollegiate athletics program to disclose certain information concerning its intercollegiate athletics program. Under

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the EADA, annual reports would be required, with the first report available no later than October 1, 1996.

January 1996: The OCR issued a clarification of the three-part Effective Accommodation Test that reiterated the requirements of the policy interpre- tation that institutions could choose any one of three independent tests to demonstrate that they were effectively accommodating the participation needs of the underrepresented gender.

October 1, 1996: The first EADA report was due. All institutions were required to make available to all who inquired specific information on their intercollegiate athletics department.

November 21, 1996: A federal appeals court upheld a lower court’s ruling in Cohen v. Brown University holding that Brown University illegally dis- criminated against female athletes. Brown University argued that it did not violate Title IX because women were less interested in sports than men. Both the district court and the court of appeals rejected Brown’s argument. Many of the arguments offered by Brown were similar to those relied upon by colleges and universities all over the country.

After permitting private causes of action under Title IX to proceed in Cannon v. University of Chicago (1979) and Franklin v. Gwinnett County Public Schools (1992), the Supreme Court applied Title IX to the sexual harassment of a student by a teacher in a public school in Gebser v. Lago Vista Independent School District (1998). A year later, in Davis v. Monroe County Board of Education (1999), the Court extended its holding to sexual harassment of a student by a peer in a public school.

When the person engaging in sexual harassment is a student rather than a faculty member in higher education, additional requirements come into play. In the Davis decision, the Supreme Court stressed that the language of Title IX, coupled with the requirement that recipients of federal financial assis- tance be given notice of the provisions under the statute, required that institu- tions subject to liability must have substantial control over the harasser and the environment in which the harassment occurred before they could be liable: “Only then can the recipient be said to ‘expose’ its students to harass- ment or cause them to undergo it ‘under’ the recipient’s programs” (Davis, 646). In reaching this outcome, the Court relied in part on the requirement in Title IX that harassment occur under the operations of a funding recipient.

In both Gebser and Davis, the Supreme Court implicitly ruled that Title IX liability turned on a finding of intentional discrimination by the educa- tional institution. The Court indicated that before Title IX liability attaches, a plaintiff must demonstrate that institutional officials made a conscious choice to discriminate by failing to act on actual knowledge. The Court made it clear that it is not enough to show that an employee or agent of a college or university behaved improperly. Rather, the Court explained that a plaintiff

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must show that an official or officials at the educational institution endorsed such conduct or failed to stop it from continuing.

In 2005 the U.S. Supreme Court, in Jackson v. Birmingham Board of Education, rendered a sharply divided opinion in deciding that employees who report gender discrimination in violation of Title IX of the Education Amendments of 1972 and are retaliated against as a result of their complaint can seek redress for retaliation under Title IX.

In Jackson, the Supreme Court held that retaliation against a person who complains of sex discrimination is another form of intentional discrimination on the basis of sex that is subject to Title IX’s private right of action. The Court reasoned that retaliation, by definition, is an intentional act and a form of discrimination because the complainant is treated differently on the basis of a complaint, an action that represents an intentional response to an allega- tion of sex discrimination that constitutes the very nature of the complaint. The Court thus indicated that if the plaintiff is subject to retaliation for raising a complaint of sex discrimination, this constitutes intentional discrim- ination “on the basis of sex,” in violation of Title IX. The Jackson decision stimulated litigation against colleges and universities, resulting in costly damages and settlement agreements, and thereby opening a new means by which aggrieved employees might seek restitution from institutions of higher learning for instances of retaliation under Title IX.

In response to the litigation at the Supreme Court and the need to elimi- nate or remedy incidences of sexual harassment on college and university campuses, federal regulations promulgated pursuant to Title IX required in- stitutions to develop clearly written policies prohibiting all forms of sexual harassment. In developing and reviewing these policies, officials were re- quired to include representatives of faculty, staff, and students to ensure that those charged with harassment were entitled to protection under due process procedures that had been set forth for other forms of alleged policy viola- tions. At the same time, the policies were required to have effective and well- publicized procedures by which students, faculty, and staff could report and resolve sexual harassment complaints in a timely manner that respected the substantive and procedural due process rights of both the accused and the accuser.

February 20, 2001: The Supreme Court issued a decision in Brentwood v. Tennessee Secondary School Athletic Association holding that a high school athletic association is a “state actor” and thus subject to the Constitution. This means, for example, that the equal protection clause of the Fourteenth Amendment applies to athletic associations in gender equity suits.

December 17, 2001: Communities for Equity v. Michigan High School Athletic Association was decided, holding a state athletic association liable under Title IX, the equal protection clause, and Michigan state law for dis-

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criminating against girls by forcing six girls’ sports teams—but no boys’ sports teams—to compete in nontraditional and/or disadvantageous seasons.

February 2002: The National Wrestling Coaches Association, College Gymnastics Association, and the U.S. Track Coaches Association, along with several other groups representing male athletes and alumni of wrestling programs at Bucknell, Marquette, and Yale, filed suit alleging that Title IX regulations and policies were unconstitutional.

May 29, 2002: The U.S. Department of Justice filed a motion to dismiss on narrow, procedural grounds a complaint filed in federal court against the DOE attacking the three-prong test developed for schools to determine their compliance with Title IX in women’s athletics programs.

June 27, 2002: The U.S. secretary of education Rod Paige announced the establishment of a Commission on Opportunities in Athletics. The stated purpose of the commission was “to collect information, analyze issues and obtain broad public input directed at improving the application of current federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX.”

July 11, 2003: The OCR issued “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance” reaffirming the validity and effectiveness of long-standing administrative regulations and policies governing this application.

March 17, 2005: The DOE issued policy guidance (“Additional Clarifica- tion”) that significantly weakened Title IX. Schools could now send out an e- mail survey to their female students asking them what additional sports they might have an interest and ability in playing. If the survey responses did not show enough interest or ability, the school would not have to add additional sports for female students—and would be presumed to be in compliance with Title IX.

April 20, 2010: The DOE issued a policy guidance that rescinded “Addi- tional Clarification” and all related documents, including the recommended survey.

Under the OCR’s interpretation, which has been universally endorsed by the federal appellate courts, institutional officials must do one of three things in order to achieve compliance with Title IX in the context of athletic partici- pation. Officials may ensure that the representation of each gender is sub- stantially proportionate; they may demonstrate a continuing history of ex- panding opportunities for students of the underrepresented gender; or they may demonstrate that they are currently accommodating the interests and abilities of the underrepresented gender.

In 1996, the OCR clarified that athletic opportunities are “substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, meaning a team for which there is a sufficient number of interested and able

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students as well as enough available competition to sustain an intercollegiate team.”

Second, if an institution has not achieved substantial proportionality, its officials may demonstrate that it has a continuing history of expanding op- portunities for the underrepresented gender. In other words, it is acceptable for female representation among athletes to be substantially below their rep- resentation in the student body if an institution has consistently added new teams for women and intends to continue to do so in the future.

Third, institutional officials may demonstrate that they are currently ac- commodating all interests and abilities of the underrepresented gender. Under the guidance issued in 2005, compliance with the third prong turns on the following factors: unmet interest sufficient to sustain a varsity team in the sport or sports, sufficient ability to sustain an intercollegiate team in the sport or sports, and reasonable expectation of intercollegiate competition for a team in the sport or sports within the institution’s normal competitive region.

For scholarships, as in the case of the participation requirements, al- though no level of permissible deviation from exact equality in scholarship aid has been established, the OCR issued a guidance letter addressing this point. According to this letter, if any unexplained disparity in the scholarship budgets for athletes of either gender was 1 percent or less for the entire budget for athletic scholarships, there would be a strong presumption that such a disparity was reasonable and based on legitimate, nondiscriminatory factors. Conversely, there would be a strong presumption that an unexplained disparity of more than 1 percent was in violation of the “substantially propor- tionate” requirement.

GENDER EQUITY/TITLE IX (FOCUSED ON K–12 ONLY)

Force v. Pierce City R-VI School District (1983): A female middle-school student was unable to try out for her school’s football team because the tryouts were restricted to boys only. She claimed that the school’s policy violated her Fourteenth Amendment equal protection rights. The district court ruled in the student’s favor, finding that the school offered no justifi- able reason for preventing girls from trying out.

Sharif by Salahuddin v. New York State Education Department (1989): The state of New York awards merit scholarships to high-achieving high school students. Prior to this case, scholarships were awarded based solely on SAT scores. There was evidence to show, however, that female students received lower SAT scores than males and that SAT scores were not ade- quate predictors of female student performance in college. When female students challenged the practice in court, a federal court determined that reliance exclusively on SAT scores discriminated against female students

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and ordered that the state consider high school grades in conjunction with SAT scores in determining scholarship eligibility.

Pfeiffer v. Marion Center Area School District (1990): A female high school student was dismissed from her school’s National Honor Society (NHS) chapter upon discovery that she was pregnant. The NHS faculty coun- cil cited the student’s engaging in premarital sex as the reason for her dismis- sal, claiming that this behavior was inconsistent with the values expected of NHS members. The district court found no violation of Title IX. However, the court of appeals found that the district court had ignored testimony that the NHS had not dismissed a male student who had publically admitted to fathering a child while unmarried and ordered the district court to consider this evidence.

Franklin v. Gwinnett County Public Schools (1992): A female high school student had been sexually harassed by a teacher. Faculty and adminis- tration at the school had discouraged the student from pressing charges against the teacher, and the student sought monetary damages. The Supreme Court ruled that the student could indeed sue for damages under Title IX.

Chipman v. Grant County School District (1998): Female high school students who were unmarried mothers were denied admission to their school’s National Honor Society. The NHS chapter claimed that the denial was based on the girls’ characters. However, the court ruled that the chapter had violated Title IX by discriminating against pregnant women.

Enforcement of Title IX is the responsibility of the Department of Justice, which includes coordination of enforcement strategies across all federal agencies, conducting investigations in cooperation with the DOE, participat- ing in lawsuits or filing amicus briefs to assist in the courts’ interpretation of Title IX, and negotiating settlement agreements that require schools to reme- dy Title IX violations. The department has also assisted in the development of regulations, guidance documents, and compliance reviews along with gen- eral guidance to the public on the requirements of Title IX. This has resulted in the department being involved in a variety of issues at all levels of the justice system and various levels of the court system. Some highlights of these activities are given below.

TITLE IX IMPLICATIONS IN VARIOUS AREAS

Access to Justice under Title IX

• Jackson v. Birmingham Board of Education (S. Ct.) (2005): Whether Title IX prohibits retaliation against those who complain about discrimination

• Atkinson v. Lafayette College (3d Cir.) (2003): Whether retaliatory dismis- sal of female faculty members violates Title IX

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• Litman v. George Mason University (4th Cir.) (2001): Whether there is a private right of action to enforce Title IX’s anti-retaliation regulation

• Pederson v. Louisiana State University (5th Cir.) (2000): Whether Title IX is constitutional under the spending clause

• Beasley v. Alabama State University (11th Cir.) (1998): Whether states can claim Eleventh Amendment immunity from Title IX claims

• Cannon v. University of Chicago (S. Ct.) (1979): Whether Title IX allows individuals to sue in court if they are victims of discrimination

Sexual Harassment and Assault

• University of Montana Title IX Compliance Review and Title IV Investi- gation (2012): Investigation of a university’s handling of sexual assault and harassment claims

• Doe v. Merrill Community School District (6th Cir.) (2010): Whether a middle school acted with “deliberate indifference” to the rape of a student

• Lopez and United States v. Metropolitan Nashville School District (M.D. Tenn.) (2010): Consent decree reached in a case alleging sexual assaults on a special education bus

• A.B. v. Rhinebeck Central School District and Thomas Mawhinney (S.D. N.Y.) (2006): Consent decree achieved in case alleging sexual harassment of students by a principal

• Davis v. Monroe County Board of Education (S. Ct.) (1999): Whether Title IX permits monetary relief for student-on-student sexual harassment

• Gebser v. Lago Vista School District (S. Ct.) (1998): Whether Title IX permits monetary relief for teacher-on-student sexual harassment

Harassment Based on Gender Stereotypes

• Doe and United States v. Anoka-Hennepin School District (D. Minn.) (2012): Consent decree in case involving student harassment based on gender stereotypes

• Tehachapi Unified School District (E.D. Cal.) (2011): Settlement to ad- dress harassment of student based on gender nonconformity

• Pratt v. Indian River Central School District (N.D. N.Y.) (2010): Whether Title IX covers harassment based on nonconformance to gender stereo- types

• J.L. v. Mohawk Central School District (N.D. N.Y.) (2010): Settlement reached in case alleging harassment based on gender stereotypes

• Lovins and United States v. Pleasant Hill Public School District (W.D. Mo.) (2000): Consent decree providing relief for student in same-sex peer harassment case

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• Putman v. Board of Education of Somerset Independent Schools (E.D. Ky.) (2000): Whether a student’s Title IX claim should proceed given sexual nature and severity of harassment

Athletics

• Biediger v. Quinnipiac University (2nd Cir.) (2011): Whether a univer- sity’s competitive cheerleading team constitutes a “sport” under Title IX and whether disparity between male and female athletic opportunities vio- lates Title IX

• Biediger, et al. v. Quinnipiac University (D. Conn.) (2010): What consti- tutes a “sport” under Title IX and a “genuine” athletic opportunity

• Cook v. Florida High School Athletic Association (FHSAA) (M.D. Fla.) (2009): Whether disproportionate reductions in girls’ sports competitions violate Title IX

• Communities for Equity v. Michigan High School Athletic Association (6th Cir.) (2003): Whether scheduling female athletes to play in disadvan- tageous seasons violates Title IX

• Communities for Equity v. Michigan High School Athletic Association (W.D. Mich.) (2001): Relief achieved to address discriminatory playing seasons and facilities for female athletes

• Pedersen and United States v. South Dakota High School Activities Asso- ciation (M.D. S.D.) (2002): Whether requiring girls to play sports in dis- advantageous seasons violates Title IX

• Cohen v. Brown University (1st Cir.) (1995): Whether the court properly applied the three-prong test in a case involving cuts to women’s teams

Admissions

• Doe v. Vermilion Parish School Board (5th Cir.) (2010): Whether single- sex middle school classrooms comply with federal law

• United States and Mellette v. Jones (D. S.C.) (1997): Consent order achieved in case challenging males-only admissions policy of the Citadel

• United States v. Commonwealth of Virginia (W.D. Va.) (1990): Suit filed to challenge the males-only admissions policy of the Virginia Military Institute

• United States v. Commonwealth of Virginia (S. Ct.) (1994): Whether the Virginia Military Institute’s males-only admissions policy violates the equal protection clause

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