Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252 (1st Cir. Most significantly, the 1988 Senate Report for the CRRA addresses this limitation. 42.107; 32 C.F.R. High School News. Dept. The title is designed to limit any termination of federal assistance to the particular offenders in the particular area where the unlawful discrimination occurs. C. Covered Education Program or Activity, Title IX prohibits recipients of federal financial assistance from discriminating on the basis of sex in education programs or activities. Individuals can use both statutes to attack the same violations. 1691.1 - 1691.13 (EEOC). Commn, 463 U.S. 582, 584 (1983) (Title VI); Alexander v. Choate , 469 U.S. 287, 293 (1985) (Title VI). Unfortunately, incidents of sexual harassment occur across the spectrum in K-12 schools. However, federal financial assistance may also be in nonmonetary form. 42.107(a). High School. . 1682; See, e.g., 45 C.F.R. For the purposes of these Title IX regulations, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact. 2 As discussed later in the Manual, however, there are Constitutional issues presented as well. Id. The local agencies receive federal financial assistance, and thus are subject to Section 504 (and other nondiscrimination laws). Since Title IX is limited to education programs or activities, it would apply only to the students and employees of education programs operated by the hospital, if any. In 1986, Congress enacted 42 U.S.C. However, the recipient may only do so if such certification is required of all students for other physical or emotional conditions that require a physicians attention. Federal Action That Is Not Federal Financial Assistance. While captions are used to separate different circumstances, courts do not uniformly use the same phrase to explain the same funding pattern. Employees of the contractor refuse to admit female prisoners to a welding training class the contractor is conducting. of Educ., 858 F.3d 1034, 1049-50 (7th Cir. Schools must respond when harassment occurs in the schools education program or activity. After the draft rule, survivors. at 72. Harris Methodist, 970 F.2d at 101 (internal citations omitted); NOPSI III, 723 F.2d at 425. 8 The Court in Grove City College held that federal student financial assistance provided to a college established Title IX jurisdiction only over the colleges financial aid program, not the entire college. Direct and Indirect Receipt of Federal Assistance. A recipient must not apply any rule concerning a students actual or potential parental, family, or marital status that treats students differently on the basis of sex. of Teamsters v. United States, 431 U.S. 324, 336 (1977); McDonnell Douglas, 411 U.S. at 802. Part 86, respectively. Sch. 131 The participating agencies include: the Nuclear Regulatory Commission; Small Business Administration; National Aeronautics and Space Administration; Department of Commerce; Department of Labor; Tennessee Valley Authority; Department of State; Agency for International Development; Department of Housing and Urban Development; Department of Justice; Department of Labor; Department of the Treasury; Department of Defense; National Archives and Records Administration; Department of Veterans Affairs; Environmental Protection Agency; General Services Administration; Department of the Interior; Federal Emergency Management Agency; National Science Foundation; Corporation for National and Community Service; and, the Department of Transportation. S. Rep. No. While there are few private elementary, middle school or high schools that receive federal funds, almost all colleges and universities, private [] The log shall include the following: the sex of the complainant, the identity of the recipient, the nature of the complaint, the date the complaint was filed, the investigation completed, the date and nature of the disposition, and other pertinent information. "Any Other Means Authorized by Law:" Judicial Enforcement, 2. Sch. Parents or guardians of K-12 students arepermitted to file complaints on their behalf and require parental notification of complaints against their children. Because Title IX was derived from Title VI, the Supreme Courts decision in this matter will impact the judicial interpretation of Title IX. A very comprehensive guidance document concerning sexual harassment in federally funded education programs and activities was issued by the Department of Education, Office for Civil Rights on March 13, 1997. at 1564. The Administrative Dispute Resolution Act of 1996 authorizes the use of ADR to resolve administrative disputes. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." United States Postal Serv. 1996)(female junior high school students allegation of sexual harassment by other students, including both boys and girls, sufficient to raise a claim under Title IX). 65 Fed. Based on these findings, a final order was entered terminating "any class of Federal financial assistance" to the district "arising under any Act of Congress" administered by HEW, the National Science Foundation, and the Department of the Interior. 99-506, tit. Ill. Sept. 4, 1984), affd on other grounds, 778 F.2d 1233 (7th Cir. Specifically, Title VI prohibits employment discrimination on the part of a recipient only where a purpose of the federal financial assistance received is to provide employment. Ctr., 97 F.3d 1070, 1072 (8 th Cir. The clearest means of identifying a "recipient" of federal financial assistance covered by Title IX is to determine whether the entity has voluntarily entered into a direct relationship with the federal government and receives federal assistance under a condition or assurance of compliance with Title IX. See, e.g., 45 C.F.R. 4K Program . Thus, in cases of conflict between the requirements of Title IX and obligations imposed by local law or third party contracts, Title IX controls. These advocacy organizations complained of an industry-wide pattern of sex bias against women who worked in colleges and universities. Although the Court did not define this term, it specifically rejected limiting Title IX plaintiffs to monetary relief that is equitable in nature, such as backpay. The procedural requirements discussed in this chapter are also codified in the Department of Education Title IX implementing regulations, 34 C.F.R. Intersex refers to people born with variations in physical sex characteristicsincluding genitals, gonads, chromosomes, and hormonal factorsthat do not fit typical definitions of male or female bodies. A showing of pretext may be sufficient to support an inference of retaliation if the fact finder concludes that retaliation was the real purpose of the action. It is the position of the Department of Justice that Section 2000d-7 is an unambiguous abrogation which gives States express notice that a condition for receiving federal funds is the requirement that they consent to suit in federal court for alleged violations of Title IX and the other statutes enumerated. v. Alexander, 984 F.2d 483, (D.C. Cir. 345, 361-62 (S.D.N.Y. 1969). Second, Congress added 42 U.S.C. This prohibition applies to any service or benefit for an applicant (for enrollment or employment), student, or employee. at 4-5. Since this was our intention, we have made this specific in the provisions of Title VI by adding language to 602 to spell out these limitations more precisely. 1996); Brine v. University of Iowa, 90 F.3d 271, 276 (8 th Cir. Ala. 1998), affd, 197 F.3d 484 (11 th Cir. Just last year, President Biden honored the 50th Anniversary of Title IX , explaining that the law "protect[s] students from sex discrimination, including sex-based harassment and sexual violence." 66092 (2000) (the final Sexual Harassment Guidance is anticipated for a January 2001 publication); Policy Interpretation-Title IX and Intercollegiate Athletics, 45 C.F.R. Q: What are public high schools doing to ensure equal treatment? 64 at 2, reprinted in 1988 U.S.C.C.A.N. II.C. We are aware that the Department's Civil Rights Division is conducting an investigation involving possible civil rights violations. 52858 (August 30, 2000), _.500(a). other means authorized by law. It prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. 563, 568 (N.D.Ill. This Manual is in no way intended to supersede any guidance issued by the Department of Education, and, to the extent that this Manual is construed to conflict with guidance issued by the Department of Education regarding traditional educational institutions, the Department of Educations Guidance should be followed. Where a recipient does not maintain a leave policy for its students, or where a student does not otherwise qualify for leave under a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the students physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began. The common rule at _.110(a)provides: (a) Remedial action. 10 The participating agencies include: the Nuclear Regulatory Commission; Small Business Administration; National Aeronautics and Space Administration; Department of Commerce; Tennessee Valley Authority; Department of State; Agency for International Development; Department of Housing and Urban Development; Department of Justice; Department of Labor; Department of the Treasury; Department of Defense; National Archives and Records Administration; Department of Veterans Affairs; Environmental Protection Agency; General Services Administration; Department of the Interior; Federal Emergency Management Agency; National Science Foundation; Corporation for National and Community Service; and, the Department of Transportation. Congress did not set up a system where passengers were the primary or direct beneficiaries, and all others benefitted by the Acts are indirect recipients of the financial assistance to airports.The statute covers only those who receive the aid, but does not extend as far as those who benefit from it.Congress tied the regulatory authority to those programs or activities that receive federal financial assistance. The primary recipient then distributes the federal assistance to a subrecipient to carry out a program. 1701, 94th Cong., 1st Sess. 99-1908); Haffer v. Temple Univ., 678 F. Supp. Va. July 21, 2021); Koenke v. Saint Joseph's Univ., No. Schools also have an . 7059 (1964) (Statement of Sen. Pastore). If a substantial legitimate justification is identified, the third stage of the disparate impact analysis is the challenging partys identification of a less discriminatory alternative.66 If there is an alternative policy or procedure that has less of an adverse impact but achieves the goals that were determined to be legitimate, the recipient should use that policy or procedure. Although courts have not yet ruled on what measures are appropriate for a recipient to take to remedy sex harassment in a context not involving an educational institution, the Department of Educations Sexual Harassment Guidance provides a starting point for analysis. . Stay informed as we add new reports & testimonies. By encouraging suburban residents not to drive into the City, subsidization of the commuter rails minimizes congestion and pollution levels associated with greater use of automobiles in the city; encourages business to locate in the City; and provides additional fare-paying passengers to the City subway and bus system. In particular, the CRRA left intact the "pinpoint" provision that limits any fund termination to the "program, or part thereof, in which noncompliance has been so found." Title IX rules go into effect in August. 95 This does not apply to recipients that are exempted from the admissions provisions in Subpart C of the Title IX regulations e.g., private undergraduate institutions and military schools. A lock ( 1994); Nelson v. University of Maine System, 923 F.Supp 275, 279-80 (D.Me. A third factor may be whether the injury is pecuniary in nature. > Fitzgerald v. Barnstable School Committee (08/29/2008)The United States Supreme Court held that public school students may challenge sex discrimination under both Title IX and the Constitutions Equal Protection Clause. Because of this purpose, the merits of any underlying complaint of sex discrimination are irrelevant in assessing a retaliation complaint.69 The prohibited conduct is the act of retaliation itself. As in Title VI disparate impact cases, the elements of a Title IX disparate impact claim derive from the analysis of cases decided under Title VII disparate impact law. In theory, districts should begin to start to update handbooks, re-do PD, etc. for Women v. Hogan, 458 U.S. 718, 724(1982)(nursing school could not justify excluding male applicants; policy violated the Fourteenth Amendment notwithstanding Title IX exemption, quoting, Wengler v. Druggists Mutual Ins. 105 For example, pre-award reviews would not be necessary for applications that are unlikely to be funded for programmatic reasons. . 9 See 7 C.F.R. In addition, the provider will also need to take steps to prevent the recurrence of harassment such as requiring the harasser to attend counseling, or even training the entire staff to ensure that they understand what types of conduct can cause sexual harassment and that they know how to respond. 51 See Larry P. v. Riles, 793 F.2d 969, 982 (9 th Cir. and the right to the same appeal processes, for both parties. Title IX is a civil rights law that prohibits schools or educational programs that receive federal assistance from discriminating against anyone on the basis of sex. As a result, coverage under Title IX involves an issue of statutory interpretation that does not arise for the other three civil rights statutes, namely: to what extent does "education" provide a limitation on the concept of institution-wide coverage embodied in the CRRA? The law was first enacted to stop male-dominated academic disciplines from excluding or discriminating against women. Although this Manual generally cites to cases interpreting Title IX, cases interpreting Titles VI and VII of the Civil Rights Act of 1964, and Section 504 of the Rehabilitation Act of 1973 are also included. at 1742. Franklin contains a detailed discussion on the merits of allowing monetary damages for intentional violations of Title IX. Title IX also prohibits sexual harassment of one participant by another participant in a program. This notice Gebser, 524 U.S. at 292. Seek assistance from resources and experts in the field. ___.135. 42.407(a). To prove a "substantial legitimate justification," the recipient must show that the challenged policy was "necessary to meeting a goal that was legitimate, important, and integral to the [recipients] institutional mission. The Badis sisters are both former water polo players involved in the Title IX lawsuit against James Campbell High School. at 103. 1328, 1341 (N.D. Ca. 2020), cert. An assistance program may have many beneficiaries, that is, individuals and/or entities that directly or indirectly receive an advantage through the operation of a federal program. On May 6, 2020, the United States Department of Education released new Title IX regulations that establish how education programs which receive federal funding must respond to sex discrimination, including sexual harassment. of Governors v. Aikens, 460 U.S. 711, 715 (1982) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). Results of post-approval reviews by the federal agencies should be in writing and include specific findings of fact and recommendations. 1996), cert denied, 520 U.S. 1186 (1997); Yusuf v. Vassar College, 35 F.3d 709, 714 (2 nd Cir. In addition, the language binding subsequent transferees, etc. 2000d et seq., which prohibits discrimination on the basis of race, color, or national origin in programs or activities that receive federal funds. Sexual harassment under Title IX includes - dating violence, domestic violence, and stalking. New York City Envtl. 42.104(c)(2) (DOJ Title VI Regulations); 15 C.F.R. The case settled and ASU agreed to appoint a statewide Student Safety Coordinator who will review and reform policies for reporting and investigating incidents of sexual harassment and assault, and award the plaintiff $850,000 in damages and fees. See, e.g., 28 C.F.R. 42.407(c)(1).112 These Title VI requirements are applicable to Title IX as well. Under Title IX, discrimination on the basis of sex can include sexual a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. 38 See Baldwin v. University of Texas Med. 2. of Educ.,64 the court ruled that even if a disparate impact were assumed, the defendants had established a "substantial legitimate justification. Official websites use .gov If you wish to fill out a complaint Dist., 94 F. 3d 463 (8th Cir. The Title IX Common Rule incorporates agencies Title VI procedures, as each agency participating in the common rule has its own provision adopting the Title VI procedures.103 See, e.g., 28 C.F.R. Sexual Violence Where You Go to School. Survivors advocacy groups say students are often unaware of their rights, and many schools dont sufficiently publicize who coordinate their Title IX response. Id. As part of the Department of Justices Executive Order 12250 coordinating authority, the Civil Rights Division coordinated the drafting and publication of a common rule providing for the enforcement of Title IX by several participating agencies.131 On October 29, 1999, the participating agencies published a Notice of Proposed Rulemaking to implement Title IX.132 After receiving and reviewing comments, the agencies published the final Title IX rule on August 30, 2000.133. As discussed below, the CRRA did not modify interpretations of this provision, but affected only the interpretation of "program or activity" for purposes of coverage of Title IX (and related statutes). denied, 516 U.S. 916 (1995); see also Delmonte v. Department of Bus. The rule requires schools to provide supportive measures to students, with or without a formal complaint. 1993); Womens Equity Action League v. Cavazos (WEAL II), 906 F.2d 742 (D.C. Cir. at 70-71. It does not apply to other educational programs and activities. As discussed in Chapter I, the CRRA amended Title IX, Title VI, Section 504, and the Age Discrimination Act by adding an explicit and expansive definition of "program or activity" that encompasses "all of the operations of" a covered entity, any part of which receives federal financial assistance, in order to establish the principle of institution-wide coverage. Every complainant has the right to present his or her case. Any effective and meaningful administrative enforcement program under Title IX must be prepared to address all three. In reaching its conclusion, the Court considered the congressional intent and legislative history of the statute in question to identify the intended recipient. In Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), a Title VII case, the plaintiff was denied partnership in an accounting firm, due, in part, to the attitudes of the senior partners who described her as "macho" and advised her to wear makeup and jewelry and to dress in more feminine clothing. the twenty year history of litigation that began in 1970 under Adams v. Richardson, 356 F.Supp. technical) education. Either of these provisions could permit single-sex programs under appropriate circumstances. 2000d-1. Co., 446 U.S. 142, 150 (1980)). 42.104(b)(1), (2) (emphasis added). The Supreme Court also has held that individuals may obtain monetary damages for claims of intentional discrimination under Title IX. The court paid considerable attention to the congressional intent of the pinpoint provision: limiting the termination power to "activities which are actually discriminatory or segregated" was designed to protect the innocent beneficiaries of untainted programs. 100.3(c)(2) (Education Title VI Regulations). and sexual coercion. & Profl Regulation, Div. See 42 U.S.C. In 1966, in considering the Elementary and Secondary Education Amendments of 1966, the House adopted a provision that effectively would have prohibited pre-award deferrals of certain education grants by the Department of Health, Education, and Welfare. Thus, the Title VI Guidelines support federal agencies requiring that recipients/subgrantors obtain assurances of compliance from subrecipients.102 When the recipient receives information pre-award that indicates noncompliance by an applicant for a subgrant, recipients may defer making the grant decision, may seek a voluntary resolution and, if no settlement is reached, (after complying with statutory procedural requirements), may refuse to award assistance. Co., 894 F. Supp. 1991); Sheehan v. Purolator, Inc., 839 F. 2d 99, 106-77 (Title VII)(2nd Cir. 52872 at ___.430(b). The Supreme Court has held that a school must be deliberately indifferent in the face of actual knowledge of the misconduct in order to be liable for money damages in private litigation under Title IX. 1682. Under the Department of Educations Title IX regulations, educational institutions must assess their current policies and procedures to determine whether those policies and procedures comply with Title IX and its implementing regulations within one year after the Title IX regulations apply to them; this is known as "the self-evaluation requirement." at 602-03 & n.22. United States military veterans are enrolled at Holy University, a private, religious university. Availability of Monetary Damages in Other Circumstances, D. Lack of States Eleventh Amendment Immunity Under Title IX, IX. Washington DC 20530. shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, . 1996) (Default insurance for bank's disbursement of federal student loans is a "contract of insurance," and excluded from Section 504 coverage by agency regulations). School district administrators and leaders should consider the following steps as an outline of some things that need to be done in order to meet the requirements of the new Title IX regulations. 1691.4. The Womens Rights Project has participated in a number of court cases in which courts have taken important steps to hold schools accountable for ignoring sexual harassment or sexual assault that they knew about in school or on campus. unless otherwise noted. Nonetheless, the Court noted that unintentional discrimination may present a different legal question, and damages may not be available. Even if a student or his or her parent does not want to file a complaint Where the application is adequate on its face but there are "reasonable grounds" for believing that the applicant is not complying with [Title IX], "the agency head may defer action on the application pending prompt initiation and completion of [statutory remedial] procedures." In United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir. The Court noted that the definition of a recipient under Title IX regulations follows the "teaching of Grove City and Paralyzed Veterans: Entities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not." Sixteen years ago, the Department of Defense (DOD) donated land from a closed military base to a State social services agency as the location for a training facility for caseworkers. Selection of Targets and Scope of Compliance Review, VII. 983 F.2d at 486. 1563 (S.D. See 65 Fed. Availability of Monetary Damages in Other Circumstances. In fact, one of the stated purposes of the student aid provisions was to provid[e] assistance to institutions of higher educations. Pub. See Davis v. Monroe County Bd. In Grove City College, the Supreme Court found that there was no basis to create a distinction not made by Congress regarding funding paid directly to or received indirectly by a recipient. 84 See Title IX common rule, Subpart E, ___.500-___.550. Id. However, This Manual provides an overview of the legal principles of Title IX of the Education Amendments of 1972, 20 U.S.C. Reg. Therefore, a federal agency cannot be considered a "recipient" within the meaning of Title IX. of the term sexual harassment throughout this document includes sexual violence the U.S. Department of Education, Office for Civil Rights, at (800) 421-3481 Agency regulations and assurances often include specific statements on the application of Title IX to successors, transferees, assignees, and contractors. The Supreme Court has established that individuals have an implied private right of action under Title IX (and Title VI and Section 504). Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or contractual undertaking and (2) any applicable proceedings under State or local law. Sexual violence in schools and on campus is a pressing civil rights issue: when students suffer sexual assault and harassment, they are deprived of equal and free access to an education. An coalition of 209 education and advocacy groups wrote to DeVos in March, urging her to pause the rulemaking process as schools, colleges, and universities confront unprecedented challenges related to the coronavirus pandemic. I.A. DeVargas, 911 F.2d at 1382-83; Jacobson, 742 F.2d at 1210. Servs. Ala. 1967) (voluntary compliance is to be effectuated if possible). Part 106. One view treats Title IX as an independent basis for finding discrimination based on the substantive standards of Title VII, but divorced from its administrative requirements.80 Under this view, complainants filing complaints under Title IX are not subject to Title VIIs filing deadlines, exhaustion of administrative remedy requirements, and state referral requirements, but are still governed by Title VIIs substantive standards. This individual is responsible for coordinating the recipients efforts to comply with and carry out its responsibilities under Title IX and its implementing regulations, including the investigation of any Title IX complaints against the recipient. A four step process is involved: 1) the agency must notify the recipient that it is not in compliance with the statute and that voluntary compliance cannot be achieved; 2) after an opportunity for a hearing on the record, the "responsible Department official" must make an express finding of failure to comply.