New Title IX Regulations
August 17, 2020
Title IX of the Education Amendments of 1972 states “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 assistance.” Title IX applies to any institution receiving federal financial assistance from the Department of Education, including state and local educational agencies.
Educational programs and activities that receive federal funds from the Department of Education must operate in a nondiscriminatory manner. Also, a recipient may not retaliate against any person for opposing an unlawful educational practice or policy, or because a person made charges, testified, or participated in any complaint action under Title IX.
Before Title IX, few opportunities existed for female athletes. The National Collegiate Athletic Association (NCAA), which was created in 1906 to format and enforce rules in men’s football but had become the ruling body of college athletics, offered no athletic scholarships for women and held no championships for women’s teams. Furthermore, facilities, supplies and funding were lacking. As a result, in 1972 there were just 30,000 women participating in NCAA sports, as opposed to 170,000 men. Title IX was designed to correct those imbalances.
Title IX requires colleges to combat gender-based violence and harassment and respond to survivors’ needs to ensure that all students have equal access to education. It addresses discrimination against pregnant and parenting students and women in STEM (science, technology, engineering, and math) programs. It also addresses sexual harassment, gender-based discrimination, and sexual violence. Sexual violence includes attempted or completed rape or sexual assault, as well as sexual harassment, stalking, voyeurism, exhibitionism, verbal or physical sexuality-based threats or abuse, and intimate partner violence. Title IX does not apply to female students only.
Title IX protects any person from sex-based discrimination, regardless of their real or perceived sex, gender identity, and/or gender expression. All female, male, and gender non-conforming individuals are protected from any sex-based discrimination, harassment, or violence.
The Clery Act also requires schools to provide options to survivors of sexual misconduct so they may have the opportunity to succeed in their educations goals. Colleges must also assist survivors in notifying local law enforcement in a safe and empowered manner.
On May 6, 2020, the U.S. Department of Education released a comprehensive set of new regulations governing how colleges and universities must respond to allegations of sexual harassment and sexual misconduct under Title IX. These new regulations took effect on August 14, 2020. Here are key provisions under the revision.
- Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
- Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely
- Requires schools to offer clear, accessible options for any person to report sexual harassment
- Empowers survivors to make decisions about how a school responds to incidents of sexual harassment
- Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
- Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment
- Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
- Restores fairness on college and university campuses by upholding all students' right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
- Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
- Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty
- Provides "rape shield" protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records
- Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding
Of course, there are downsides of these new rules. For example, the new regulations adopt the Supreme Court’s definition of sexual harassment as “unwelcome conduct that is so severe, pervasive and objectively offensive,”. Additionally, schools will also be responsible for investigating only episodes said to have occurred within their programs and activities, not, for instance, apartments not affiliated with a university.
Most of these changes will protect students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment, and find schools legally culpable for mishandling accusations, it would have to be proved “deliberately indifferent” in carrying out mandates to provide support to victims and investigate complaints fairly. Also giving schools the flexibility to use technology to conduct Title IX investigations and hearings remotely.