Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in federally funded education programs and activities. Title IX protections extend to both students and employees. If you feel that you or your child is being discriminated against based on your sex by an educational institution that receives Federal funds, there are laws to protect you. Learn more about legal protections against sex discrimination in federally funded education programs and activities.
Title IX of the Education Amendments of 1972 enacted a broad prohibition against sex discrimination by recipients of Federal funding in their education programs and activities. It provides in relevant part:
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.
20 U.S.C. § 1681 et seq. The statute prohibits all forms of sex discrimination, including gender-based harassment, sexual harassment, and sexual violence. All public and private elementary and secondary schools, school districts, colleges, and universities (hereinafter “schools”) receiving federal funding must comply with Title IX. Since its enactment, a significant body of law has developed that defines the contours of Title IX’s prohibition on sex discrimination. Among the most litigated areas include sexual harassment and sexual assault on college campuses, discrimination in employment, and retaliation.
B. Sexual Harassment/Sexual Assault
Title IX prohibits sexual harassment of students by students and students by teachers. Sexual harassment can take various forms, including sexual assault, sexual battery, sexual abuse and sexual coercion. While the standards used to determine liability for student-student harassment and teacher-student harassment are similar, there are important differences.
- Student-Student Harassment
Sexual assault of students by students, especially on college campuses and universities, is a growing epidemic. In 2014, a report issued by the White House Council on Women and Girls revealed that 1 in 5 women, and 1 in 71 men, have experienced rape or attempted rape in their lifetime, and that students experience some of the highest rates of sexual assault.A school may be held liable under Title IX for the sexual harassment of a student by a student where the school remains deliberately indifferent to severe, pervasive and objectively offensive sexual harassment of which it has actual knowledge. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). To be actionable, the school must either have caused the harassment or made students vulnerable to it. Id. at 644-45. To make this showing, a plaintiff must demonstrate that the institution had “substantial control over both the harassment and the context in which the harassment occurs.” Id. at 645. Allegations that the school should have known about the harassment are insufficient to establish actual knowledge. To constitute severe, pervasive and objectively offensive peer harassment, the conduct must have a systemic effect of denying the victim equal access to an educational program or activity. Id. at 652-54. Finally, a school remains deliberately indifferent to the harassment where its response was clearly unreasonable in light of the known circumstances. Id. at 648-49. Evidence of deliberate indifference can include failure to investigate and correct known harassment, failure to provide academic accommodations, and failure to adequately discipline the harassing student.
Until recently, the majority of courts deciding student-student sexual harassment cases under Title IX required a showing that the school had actual knowledge of prior acts of harassment. In recent years, however, at least two federal courts have allowed cases to proceed in the absence of traditional “actual knowledge” where the plaintiff presented evidence that the harassment/assault resulted from an institutional policy. See Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007); Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007). In Simpson, for example, the plaintiffs – two female University students – were sexually assaulted at an off-campus football recruitment party. Id. at 1173. At the time of the alleged assaults, there were a variety of different sources of information discussing the risks that sexual assaults would occur if recruiting was inadequately supervised. These reports included general writings on the risks of sexual assaults by student-athletes and a report that a high school girl was assaulted at a similar recruitment party in 1997. Despite the University’s knowledge of these issues, it took no meaningful action to implement trainings or policies to protect female students from this known and foreseeable risk. Id. In reversing the district court’s grant of summary judgment to the University on plaintiff’s Title IX claims, the Tenth Circuit acknowledged that the University did not have notice of prior misconduct by the perpetrators, but nevertheless held that the University had violated Title IX because the sexual assault was caused by an official policy of “deliberate indifference to providing adequate training or guidance that is obviously necessary for implementation of a specific program or policy.” Id. at 1178.
In reaching this holding, the Tenth Circuit distinguished the facts in Simpson from Supreme Court precedent in Davis and Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998). Under the standards set forth in Davis and Gebser, a plaintiff is required to show that the funding recipient remained deliberately indifferent to harassment of which it had actual knowledge. In Simpson, the Tenth Circuit acknowledged that the University did not have actual knowledge of any prior sexual assaults by the perpetrators that would have given it “actual notice” of the perpetrators potential for the harassment, but found it significant that the harassment grew from the University’s policies regarding recruitment. Because neither Davis nor Gebser addressed scenarios involving harassment flowing from institutional policies, the court relied instead on City of Canton v. Harris, 489 U.S. 378 (1989), in which the Supreme Court held that “a municipality may be held liable under § 1983 for an officer’s constitutional violation if the violation was the result of inadequate police training and the municipality’s failure to train the officer amounted to deliberate indifference to the rights of those with whom police come into contact.” Simpson, 500 F.3d at 1178 (citing Canton, 489 U.S. at 388). The logic following from Canton and its progeny is that a state can be held liable for a single violation of federal rights when the violation is a predictable result of the state’s failure to handle recurring situations with an obvious potential for such violation.
- Teacher-Student Harassment
Sexual assault of students by teachers is an equally troubling problem in educational environments. Because schools have a different level of control over teachers, as employees, the standards applicable to teacher-student harassment are slightly different than those applicable to student-student harassment. In the context of sexual assault of student by a teacher, a school may be held liable under Title IX for the sexual harassment of a student by a teacher where an appropriate person has actual knowledge of the sexual harassment and fails to adequately respond such that the response amounts to deliberate indifference to the harassment. Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290 (1998). An “appropriate person” is, at a minimum, an official of the school who has authority to take corrective action to end the discrimination. Id. Similar to student-student sexual harassment cases, allegations that the school should have known about the harassment are insufficient to establish actual knowledge. Also like the standard applied in student-student harassment cases, plaintiffs seeking to show teacher-student harassment must demonstrate that the schools response evidenced a deliberate indifference to the discrimination.
C. Employment Discrimination
Many jurisdictions recognize a cause of action for employment discrimination on the basis of sex under Title IX. Where a plaintiff pursues an employment discrimination claim under Title IX, courts typically borrow the McDonnell Douglas burden-shifting standards applied in Title VII cases to analyze the claims. Although sex discrimination in employment can also be brought under Title VII, there may be some benefits to pursuing an employment discrimination claim under Title IX. In particular, under Title IX, there is no administrative filing requirement before commencing litigation, the statute of limitations is generally more favorable, and there is no cap on damages, compared to a $300,000 cap in Title VII litigation. Visit our Gender Discrimination page for more information on your rights under Title VII.
Title IX also prohibits schools from retaliating against students and teachers for opposing Title IX discrimination or participating in a Title IX proceeding. Although Title IX does not expressly provide for a cause of action for retaliation, in 2005 the Supreme Court implied such a right in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). Courts apply the same standards for Title VII retaliation claims to Title IX retaliation claims. See, e.g., Ollier v. Sweetwater Union High School Dist., ---F.3d---, 2014 WL 4654472 (9th Cir. 2014); Fuhr v. Hazel Park School Dist., 710 F.3d 668 (6th Cir. 2013). Accordingly, to make out a prima facie case of Title IX retaliation, a plaintiff must show (1) that she engaged in protected opposition to Title IX discrimination or participated in a Title IX proceeding; (2) that plaintiff’s exercise of her protected rights was known to the defendants; (3) that she was subjected to an adverse employment action subsequent to or contemporaneous with the protected activity; and (4) that there was a causal connection between the protected activity and the adverse employment action. Once plaintiff establishes a prima facie case, the burden shifts to the defendant to proffer a legitimate, non-retaliatory reason for the adverse employment action. If the defendant successfully produces a legitimate non-discriminatory reason, the burden of production returns to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was a mere pretext for discrimination.
E. Enforcing Your Rights
The options to remedy Title IX violations include filing a complaint of discrimination with the Department of Education Office of Civil Rights (OCR) and/or filing a complaint in federal court. Should you decide to file with OCR, you have 180 days from the date of the violation to file your complaint. The time to file a complaint in federal court varies by jurisdiction. Unlike Title VII, a plaintiff is not required to exhaust administrative remedies prior to filing a Title IX claim in court. Therefore, an individual seeking to enforce his or her rights in court may do so regardless of whether he or she filed a complaint with OCR. If a court finds that your school has violated Title IX, you may be entitled to remedies that include compensatory damages, injunctive relief, and attorneys’ fees. Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); Mercer v. Duke University, 401 F. 3d 199, 203 (4th Cir. 2004).