04-12-2017
By Susan Hance Sorrells, Esq., SPHR
It’s a typical Friday afternoon at the office with no administrative meetings scheduled, and nothing urgent on the calendar. As the vice chancellor of a small university, you’re ready to plan the next week and check your emails. The phone rings. It’s residential life adviser Rene reporting that a female student told her that an on-again-off-again boyfriend shoved her and forced her to engage in a sex act at his apartment. RA Rene says she really doesn’t know what to do because “those kinds of things don’t happen here.” Unfamiliar with the specifics of Title IX, but having recently seen nightmarish stories in the news, you must decide a course of action.
What does Title IX say?
Title IX of the Education Amendments of 1972 states that:
“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.”1
Title IX protects all persons from discrimination, including parents and guardians, students, and employees, making it a broader statute than Title VII.
To whom does Title IX apply?
Title IX applies to institutions that receive federal financial assistance, including state and local educational agencies. While public colleges and universities are subject to Title IX, most private universities fall under the Title IX umbrella as well because they participate in federal student aid programs. These entities include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries and museums. Also included are vocational rehabilitation agencies and education agencies in all 50 states, the District of Columbia and territories of the United States.2
What areas of university life does Title IX impact?
Title IX impacts educational programs and activities that receive federal funds, and those programs and activities must operate in a nondiscriminatory manner regarding gender.
Some key areas in which recipients of federal funds have Title IX obligations include recruitment, admissions and counseling. Other areas include financial assistance, athletics, discipline and employment. A university that receives federal assistance must not engage in sex-based harassment. Also, a university may not retaliate against any person for opposing an unlawful educational practice or policy, complaining, testifying or participating in any complaint action under Title IX. Any retaliation in response to a complaint by a university is considered a violation of Title IX.3
What must a university prevent? The law says, “No person … shall on the basis of sex …”
1) Be excluded from participating in an activity;
2) Be denied the benefit of a program or activity; or
3) Be discriminated against.
Sex-based discrimination includes sex-based harassment. Harassers can be students, school staff or even someone visiting the school, such as a student or employee from another school. Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature.4
Sexual violence is a form of sexual harassment. Sexual violence, as the U.S. Department of Education uses the term, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. The student’s incapacity could be due to the student’s age, use of drugs or alcohol or the student’s disability that prevents the student from having the capacity to give consent.
Who enforces Title IX?
The U.S. Department of Education’s Office for Civil Rights (OCR) enforces Title IX. The OCR evaluates, investigates and resolves sex discrimination complaints. The OCR also conducts “compliance reviews” to examine potential systemic violations based on sources of information other than complaints.
Where the OCR identifies concerns or violations, universities often agree to adopt effective anti-harassment policies and procedures, train staff and students, address the incidents in question and take other steps to restore a nondiscriminatory environment.
What’s going on in those ivory towers?
Let’s look at what the OCR is currently doing in its enforcement efforts in the university community. The Education Department’s Office for Civil Rights is currently investigating 317 cases of possible mishandling reports of sexual violence at 228 postsecondary institutions.5 Cornell is the only university with six active inquiries, while Kansas State University and Indiana University at Bloomington have five active investigations.6 The other complaints are spread throughout various educational institutions.
Cornell’s response to reports of sexual assault and discrimination has been brought to the forefront with six open Title IX investigations - the highest number in the nation. For more than two months, the U.S. Department of Education’s Office for Civil Rights has been investigating Cornell for six allegations of Title IX violations. Part of that fact-finding effort took place February 28 and March 1 when four OCR lawyers visited Cornell’s Ithaca campus to “listen” to students about their experiences with Cornell Title IX Office investigators. The students said that investigators were slow and unresponsive, and the school’s Title IX office tried to keep their complaints behind closed doors.7
The OCR also initiated two investigations in 2016 for possible Title IX violations at the University of Notre Dame.8 The more recent case was opened on December 23, squashing the notion that the federal bureaucracy takes any holidays. University spokesperson Dennis Brown confirmed Notre Dame is under investigation, and the University has complied with all requests for information from the OCR.9
Not only are government entities getting in the mix, but collegiate athletic conferences are also joining the discussion. Last month, the Big 12 Conference announced that it will withhold 25 percent of future revenue distributions from Baylor University “until the proper execution of controls” over its scandal-plagued athletics program “is independently verified.”10 The withholding will be in effect until the conference’s board of directors has determined that Baylor is in “compliance with conference bylaws and regulations as well as all components of Title IX,” announced David L. Boren, president of the University of Oklahoma and chairman of the conference’s board of directors.11
What should a university’s response to a Title IX complaint look like?
Should four lawyers from the OCR show up on your doorstep and question what’s going on at your institution, as they did at Cornell, you must be prepared to show how your university is following these general guidelines in Title IX investigations:
- The investigation should be thorough, reliable and impartial. Equity is key. Each party’s rights, privileges and opportunities must be balanced.
- The process should be prompt, effective and equitable.
- Remedies, if discrimination occurred, should end the discrimination, prevent its recurrence and remedy the effects upon the victim and community.12
What to do when a complaint is brought to the institution?
Remember, it’s Friday afternoon, and you need to act. You should contact someone who can assist you with this issue immediately - if you do not already have a designated Title IX coordinator at your institution, you’re already violating the law. The Department of Education Office for Civil Rights website provides guidance and resources that will help you design a framework for your institution that, when implemented, will provide a roadmap to address these complaints in the future.
First, ensure that the reporting party knows what resources are available to him/her at the university and in the community, including law enforcement and counseling. Both the reporting and responding parties should sign no-contact agreements and be informed of your process.
Second, a Title IX investigation should begin promptly. Outside, third-party investigators can be helpful, as they can be highly skilled as well as impartial and unbiased.
Third, if the university determines that discrimination or harassment occurred, effective and reasonable remedies should be instituted.
With thoughtful planning, thorough and impartial investigation processes and carefully considered outcomes, you can be prepared to address any infractions of Title IX. Regardless of the outcome of your investigations, the right process along with appropriate remedies when needed will make your institution a true winner.