Season 3: Episode 5: Sex Discrimination in Public Schools and Universities – History and Background of Title IX

 

 


 

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Simply put, Title IX prohibits sex-based discrimination in public schools and universities. But this fascinating and broad law affects many diverse aspects of a school district’s daily operations – from handling bullying and harassment allegations, to ensuring equity in athletic programming, addressing employment discrimination claims, as well as transgender issues.  How and why was this wide-reaching statute enacted? What is the role of the Office for Civil Rights in enforcing Title IX and why is this agency so controversial lately?  Join us for an in-depth conversation about the origins and history of Title IX, along with a look at some of the key decisions and guidance documents affecting school boards and universities.

For this episode, Miriam Pearlmutter and Lisa Woloszynek are joined by Ben Chojnacki, an attorney at Walter | Haverfield who often advises educational institutions about their Title IX obligations.

View Podcast Transcript

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter|  Haverfield in Cleveland. We practice school law and every few weeks we get together and we talk about the latest legal developments relevant to board members, administrators, school employees, really anybody who works with kids in our schools.

Lisa: Right, Miriam, and today we are starting our in-depth look on Title IX, which is a really fascinating, but also very broad law. It affects both schools’ districts and also higher education universities and colleges and in many ways from how they address student bullying to sexual violence, employee discrimination, transgender issues and even school sports. We are going to dive into that topic today and explore background, really how the law has developed in key areas for board members and educators to have some background knowledge to understand why these things are in place and as we discuss that, we have our colleague with us. Ben Chojnacki, welcome.

Miriam: Hi, Ben. Welcome.

Ben: Hey, thanks for having me here. I’m excited to dig into this exciting topic. I get to work in this stuff a fair amount and it’s pretty interesting that the law itself is relatively straightforward, but as with anything, once you start trying to apply that to real world situations, it gets pretty dicey.

Miriam: It gets tricky. Ben, can you give us a little bit of background just about this law, Title IX, what is it, how did it come about?

Ben: Sure. Title IX is the ninth chapter in the Education Amendments Act of 1972. It’s arguably the most famous chapter in law, but there’s a lot of confusion regarding its enforcement and compliance. The Act was enacted as a follow up to the Civil Rights Act of 1964. The Civil Rights Act of 1964 famously prohibited discrimination in the workplace and public accommodations on the base of race, religion, sex, national origin, the traditional protected classes.

Miriam: But that only applied in the workplace, right? It didn’t apply to schools.

Ben: Correct. That shortcoming became apparent as the Act was enforced and implemented. It was clear that there needed to be an accommodation specifically for females in education programs. Legislators drafted this separate law, which became the Education Amendments Act of 1972, and the law itself is relatively short.

Miriam: Yes, it’s pretty short.

Lisa: So even though it affects many broad areas, the actual language we pull from is pretty direct, right?

Ben: Correct. It’s a standard legislator practice. They paint with the broad brush and then, just start to fill in through the administrative regs and executive agency interpretation.

Lisa: Let’s give our listeners that language.

Ben: Sure. The legislator in the Act Title IX, the actual meat on the bones, provides that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Miriam: Basically, if you receive Federal funds, you cannot discriminate based on sex in any education programs. That’s it. That’s the whole law.

Ben: Correct, yes. There are certain exceptions for religious institutions and military schools and so on, but generally, that is the law. Now the focus initially was on athletics…

Miriam: Sports, right? School sports for some reason, even though sports is not actually mentioned in the law itself. From what I understand, correct me if I’m wrong, the initial cases, that was all about school sports?

Ben: Correct. Sports is one of the obvious examples where there’s a clear disparate treatment, particularly in the ’70s, between men and women. It was a clear and easy advocacy point to say, “Sports is not equal right now. Let’s get it equal as soon as possible.”

Miriam: Just to be clear, Title IX applies not only to colleges and universities, but also to K to 12 school districts.

Ben: Correct. Title IX applies to any educational institution receiving Federal financial assistance and that includes private colleges, private state educational institutions whatever the case might be.

Miriam: One of the main ways Title IX is enforced is through the Office for Civil Rights, which was established in, I think, 1980. Can you tell us, Ben, a little bit about the Office for Civil Rights and its role?

Ben: Sure. The Office of Civil Rights is a Federal agency. It’s run by the Assistant Secretary of Education. That person is appointed by the sitting president and their job is to enforce and interpret Title IX and the corresponding regulations. There are regulations that inform what this statute means, so there’s a code for Federal regulation that say, “What does it mean for no person shall on the basis of sex be excluded from participation.”

Miriam: Okay. There’s many details that are part of this law even though they’re not explicitly in the law. Those details are fleshed out, is that what you’re saying by the regulations, which are developed by the Office for Civil Rights. Is that how you’d frame?

Ben: Yes, there’s two pieces to it. There’s the actual Federal regulations, which are codified in the Code of Federal Regulations. Those regulations are specifically articulated, and they have the force of law.

Miriam: Okay.

Ben: They go through a rulemaking process where the Executive Agency, in this instance the Department of Education, takes proposed laws and they publish them. The public gets to comment on them and there’s a comment and back and forth period–

Lisa: There’s a notice and comment period?

Ben: Correct.

Lisa: That’s done so that the public has a chance to weigh in on these regulations.

Ben: Exactly. It’s quasi-legislative, but it has the effect of law.

Lisa: We’ve talked about OCR often in our podcast prior in other areas and their role in enforcing these with school districts following up on complaints, investigating and giving this guidance. We’ve talked about Dear Colleague letters before and those are often one of the modes that OCR gives guidance to K-12 schools. How have you seen OCR’s involvement with Title IX?

Ben: Big picture, OCR gets involved because those regs are somewhat ambiguous and so, what the Office of Civil Rights does is their job is to make sure that any educational institution receiving Federal financial assistance is complying with that law.

Lisa: Okay.

Ben: But in order to accomplish that Herculean task, one of the things that they do is they publish these “Dear Colleague” letters. These “Dear Colleague” letters typically say, “The regulations say this. We interpret this to mean that.”

Miriam: Okay.

Ben: The idea is that although it’s not law, it’s guidance to the educational institution receiving Federal financial assistance for how they need to comport their activities on a going-forward basis.

Miriam: Okay. We have the law and then, we have regulations that explain the law and then, we have the guidance from the Office for Civil Rights that further clarifies the regulations as they apply to schools in a practical way.

Lisa: Right. Sometimes these “Dear Colleague” letters or guidance can be controversial because it doesn’t always go through that comment period. Sometimes when OCR’s issuing these “Dear Colleague” letters, it’s their interpretation of these regulations and how they should be applied in these environments, but without the role of the full legislature process.

Miriam: Yes, I think that I’ve heard about this in the news a little bit where people get upset that the notice and comment period was skipped over, so they feel like a government agency just put forth regulations or put forth guidance without any input from the public. Is that–

Ben: Yes, I think that’s accurate. One of the things that gets really dicey is these “Dear Colleague” letters, these policy interpretations are articulated by an administration, an Executive Agency. The Executive Agency’s taking instruction from the executive and so–

Miriam: The president?

Ben: Precisely. What you have is a situation where unlike the statute, which doesn’t change, or the rules, which are really hard to change, every four years you get a new administration. That administration is likely going to have some different interpretations of that law and the challenge is, and there’s no clear example other than what you see between the two terms of the Department of Education under President Obama and the Department of Education under current President Trump. Those regulations or that administrative guidance has gone one way and then, with the election of President Trump, it’s gone another way.

Lisa: A good example would be the transgender issues we’ve talked about previously and can dive into in another episode a little bit more where there had been specific guidance and it’s been withdrawn by the Office of Civil Rights.

Ben: Exactly.

Lisa: Let’s dive into a little bit more of how OCR enforces these laws and what that looks like.

Ben: Sure. The Office of Civil Rights, they have brick and mortar offices and those offices are in different jurisdictions throughout the country. There are parents, students, anybody who’s involved or related to or has standing to bring a claim or an issue where they are or someone they are responsible for is experiencing discrimination in an educational program.

Miriam: On the basis of sex?

Ben: Correct.

Miriam: Okay.

Ben: If they are a subject to that type of discrimination, then the Office of Civil Rights is tasked with the investigation and enforcement of the law.

Miriam: In other words, a parent files a complaint saying, “My daughter was treated differently because of her sex, because she’s a female in the school environment,” and that can be a college setting, or it can be high school or elementary school even.

Ben: Correct. That arises in a lot of different contexts. It arises everything from– In the athletics context, you’ve got the example of there’s 20 men sports to one female sport. That type of dichotomy gives rise to a Title IX investment.

Miriam: That seems to be the more common area that the public knows about.

Ben: I would say that’s probably the more high profile, but less frequent example. Probably the more frequent example and the more common cases are our actual instances in the classroom or in other extracurricular activities where you have teachers or administration responsible for ensuring programs are administered in a nondiscriminatory fashion who either intentionally or unintentionally are providing those educational benefits in a way that is disproportionately affecting one sex or the other.

Miriam: So like grading girls harsher or- I mean is that exactly an example?

Ben: Correct. That’s be an example. Usually it’s more along the lines of discipline. You’ll have an individual who’s potentially in trouble for, we’ll say an act of violence. The Title IX complaint might come in because they’re saying that, well, this institution, if incident A happens and it’s a male, that person gets this type of discipline, but I am a female and I received a tenfold more discipline and it’s because of my sex….

Miriam: I was treated harsher because of my sex.

Ben: Correct. As a consequence of that harsh treatment, I’m being deprived and educational benefit and that’s where the Title IX violation comes in. Once you start being deprived of that educational benefit, Title IX is implicated. No CRS job is to investigate and prepare a report and if necessary, reach an agreement or potentially litigate the matter of noncompliance.

Lisa: We handle those kinds of complaints on a pretty frequent basis. Not necessarily just for Title IX, but more globally. What that looks like for our listeners is generally an investigation period where they collect a lot of documents, may conduct interviews, gather as much information as possible regarding what the complaint was and then we see different results from that. Sometimes they’re issuing a finding and some proposed solutions to fix that problem. Or sometimes we go through a process of the district decides to enter into a resolution agreement and say we’re going to take this step and this step to try to rectify the circumstance that’s going on.

Miriam: Now what’s the final- I guess what’s the final authority that the office for civil rights has? Let’s say a school district says, “You know what, we don’t care. We’re not going to comply with your proposed remedies or your solutions. We like our school district the way it is and this is how we do it here.”

Ben: Well, the executive branch and the front of education carries a very, very big stick. They’ve never used it, but the ultimate stick that they can hit you with if you tell them to buzz off, they can revoke your federal funding.

Miriam: All federal funding will be gone, of course, that’s something that no school district or university ever wants to experience. Typically, school districts and colleges quickly comply when the office for civil rights indicates what solutions, what resolutions they would like to see.

Ben: The incentive is to cooperate. Certainly, there is an obligation as legal counsel to ensure that your client’s not being railroaded into something that’s not appropriate or not reflective of the facts as alleged, but the incentive ultimately is to comply with Title IX and work with OCR as a colleague to resolve a potential issue as opposed to an adversary.

Lisa: How has OCR’s view and guidance on this specific area in Title IX evolved over the years? Let’s maybe point out some of the key ”Dear Colleague” letters that are out there that are districts and universities should be looking at.

Ben: Sure. There’s a number of ”Dear Colleague” letters. I would say the big ones from a chronological standpoint. In 2004 there was a ”Dear Colleague” letter that speaks specifically to- as a reminder to institutions, that they do have to designate a Title IX coordinator. Believe it or not, that is not something that we always see as happening. For whatever reason, that formal title is not always being filled by someone within the institution. In 2004, OCR decided to make it clear, you need to have a designated Title IX coordinator tasked with ensuring that the institution is complying with Title IX.

Miriam: Every school district and every college and every university must have an individual who is designated to investigate these claims, to look at complaints. that person is very often called the Title IX coordinator. In your district, it might be that that role might be filled by a human resources director or a special education director, the assistant superintendent. But that person is- I just want to make this as clear as possible -That person is always there. I remember a situation I had once, a case I had once where there was a deposition and a student’s attorney was talking to a teacher and he said, “Look, you know how this is a bullying complaint and how come you didn’t set, you didn’t follow your district’s policy and forward this bullying complaint to the Title IX coordinator”. In the middle of this deposition, this teacher turns to me and she says, “Do we even have that? I don’t think we have that here.”

Lisa: We talk about the importance of policies frequently, right? That district staff need to know what’s in there, but that is really accurate. Often they do refer friends having a Title IX coordinator and it’s not always identified who that person is or district staff other than administrators such as teachers don’t always know who that is or who a complaint should go to.

Miriam: We’ve even had situations where the Title IX coordinator is like, “Oh, I didn’t know I am the Title IX coordinator.” Which we would prefer that you’d never be in that situation. Just make sure as an administrator that you know who your Title IX coordinator is, perhaps it’s you, and that your staff all know who the Title IX is according to your policies.

Lisa: What’s some other key guidance that OCR is given?

Ben: Some of the more prominent guidance typically relates to one of two areas. One is sexual violence, sexual harassment. There’s been a lot of back and forth over which administration gets to articulate the policy or the interpretation of the regs on those dear colleague letters. Probably the most widely reported dear colleague letter was the, the 2011 letter that provided guidance from the Obama administration about how to respond to sexual violence. That ”Dear Colleague” letter was subsequently withdrawn in September of 27.

Miriam: This is very controversial.

Ben: Correct.

Lisa: A lot of media coverage in this area.

Miriam: A lot of media coverage on this and I think we’re going to devote a full episode to this topic because it’s so interesting and controversial.

Ben: It certainly warrants one. One of the big things that you need to be clear about is that well I guess for the purposes of this discussion, the important thing is that one of the main reasons that the ”Dear Colleague” letter was withdrawn was in part because the Trump administration has taken the position that sexual violence should be something that’s codified into the code of federal regulations as law to allow for a little bit more certainty for how sexual violence should be handled on a going forward basis.

Lisa: Not just leaving that to whatever current administration is governing OCR at the time.

Ben: Correct.

Miriam: How interesting.

Ben: The other probably major one that often gets discussed is the transgender, that’s a- it’s a broad term, but it’s generally used to LGBTQ+. You had a ”Dear Colleague” letter-

Miriam: During the Obama administration, okay?

Ben: Correct. Which provided some certainty for how institutions and schools need to be respecting and ensuring there’s no discrimination in that context.

Miriam: Then it was- that was another example of something that was rescinded with this administration.

Ben: Correct. Again, I believe we’ll get into that in another episode, but that that type of policy decision is born out of the ambiguities of how the courts throughout the United States have interpreted what it means to prohibit discrimination on the basis of sex in the educational context.

Lisa: Let’s switch gears then from this broad guidance area to what actually has been found in court.

Miriam: Yes. Are there any good cases that you can talk about?

Ben: Yes, I’m really excited to jump in. Background, I apologize. But I get like real fired up over Title IX cases. It’s weird I’m-

Miriam: That’s why we have you here.

Ben: It’s bizarre because I have no good reason to other than I like-

Miriam: It’s an interesting area, definitely.

Ben: -arguing about things. There’s a couple of seminal cases which really speak to some of the basics, nuts and bolts of what Title IX is all about. The case, I guess we should be talking about first and foremost are the cases that provides you guidance for what the actual law means for the purposes of every day application. I mean the- probably the first prominent case that we should talk about is Franklin v. Gwinnett County Public Schools. It’s a-

Miriam: That’s in Georgia, right? I think Gwinnett County is in Georgia.

Ben: I believe it is. Yes. The big picture. The court holds- the Supreme Court holds that the money damages are available to individuals who are harmed by an educational institutions failure to comply with Title IX.

Miriam: In other words, if you have a Title IX problem going on in your school district, you can sue that school district now after Gwinnett County and get money for it.

Ben: Correct.

Miriam: I think, before this case, it was just more of this is what school districts should be doing. These are the- this is the regulations, this is the guidance. But after this case, now there’s much more of a bite to it.

Ben: Correct. I would say there are previous cases prior to Franklin v. Gwinnette County that that stood for the same basic principle, but Franklin significant because it really does highlight the fact that the damages available are to a student and they are cash money real, not the abstract.

Lisa: We’re not just talking about your federal funding, such as from OCR and what they can find, we’re talking about the student who makes the claim and takes it to court can actually get money from the district as the remedy.

Ben: Correct.

Miriam: That has happened. Certainly, students have filed in Federal Court and some cases have even gone all the way up to the Supreme Court, and then they have if they’ve proven their case, they do get funds, either in a settlement or through a jury trial.

Lisa: Right. What’s also important about this case, this was a US Supreme Court case, so it’s–

Miriam: Applies to everyone like national.

Lisa: Right. It’s not just your local what circuit or district you’re in, this will apply across the country.

Ben: Yes, I would say it’s been well settled for a long time that the law of the land is if you are violating Title IX and a student wants to bring a claim to make you pay, they can.

Lisa: Yes. There’s also a case out there that’s significant to women’s sports, right?

Ben: Well, there’s a number of them. Yes. There’s a whole bunch, but ones that are right for us to talk about today is Cohen v. Brown University. It’s not a Supreme Court case, but it’s one of a line of cases that really speak to the issues that arise in the Title IX athletics context and it’s one of the first cases where you have a student-athlete and this is at Brown University, so in the higher education context, who was attempting to or in this case, it was a group of student-athletes who are attempting to be treated equally and long-

Miriam: Female student-athletes?

Ben: Correct. There were two women’s sports teams at the university, who were the institution made the choice to demote the sports teams from an institutional sponsored event mean that the university was going to sponsor and pay for the athletics budget or the expenses of participation.

Miriam: But only for the boys’ team?

Ben: Well, no, so they were originally doing it for both, but then they made the decision. This is typically what happens in Title IX athletics context. The institution has to make a decision based on limited funds they have available as to how are we going to fund our athletics department. In this case, the institution made the decision to demote two women’s sports teams from the institution funded context to the donor. Basically, they had to find their own funding if they want to continue…

Lisa: Like a club sport.

Ben: Exactly.

Lisa: Often, that is an analysis in a university or school district I think that from the start of the conversation makes sense. You’re looking at how much money you have that’s limited, what you should devote it to, I would think certainly at the university level, there are certain male sports that bring in more money because of just how they are out there, people who attend them versus female sports. This is a shift in how the districts need to make that analysis.

Miriam: What did the First Circuit say?

Ben: The big picture of the First Circuit said that you can’t do that. [laughs] It boils down to there and it’s a First Circuit decision so different Circuits have different rules, but the principle that applies across the board is the same and Cohen was the first case to articulate that principle. That is basically you cannot have a disproportionate number of male to female benefit for athletics.

Miriam: It doesn’t matter if you can’t just say, “Well, our girls are less interested in sports, so that’s why it makes sense that we devote more money to the boys’ sports.” Right?

Ben: Generally, yes, there is a considerable amount of guidance that the OCR has provided since and prior to Cohen that speaks to these issues.

Miriam: I think we should have you back for an episode on that too.

Ben: I think we should.

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Ben: It’s weird. It’s like we have a plan already. Yes so that that’s Cohen. Then I guess, to hit on a few other cases that are probably more applicable to your school boards and to a broader extent to the athletics departments, there’s a number of cases from both district courts within the Sixth Circuit where we do most of our practice and throughout the country, that stand for the principle that at the high school level, when you’re dealing with scheduling, you’re dealing with uniforms, you’re dealing with game times, practice times, practice fields, those types of decisions that are made at the athletics department level or at the conference level or at the statewide athletic association level. Those decisions made by those decision-makers are one, they are state actors for the purposes of the actual they are and they are subject to Title IX, so your provision of fields, your provision of uniforms, all those things are all subject to the requirements of Title IX and they cannot be discriminatory against one sex or the other.

Miriam: Another case, I think that we wanted to touch upon was Davis v. Monroe. That is a 1999 case that went all the way to the Supreme Court and it had really wide-reaching ramifications for school districts.

Lisa: Harassment and bullying are tied to that case I think.

Miriam: Sexual harassment. This was a crazy case.

Ben: Yes, so Davison vs. Monroe is a big Supreme Court case. It’s important. Simple facts, so you got a fifth-grader who was complaining about being touched by a–

Miriam: A classmate.

Ben: Correct. She reported the teacher, the teacher didn’t take any action, wasn’t–

Miriam: Inappropriate sexual touching and this is at the, I guess, elementary school level. That’s interesting. This was also going on for a long period of time. I think that was part of that.

Ben: Yes, what you had is a prolonged assault and the consequence of that was the teacher who was aware of the problem was not taking any disciplinary action. They were not taking steps to ensure that the student was being afforded the opportunity to have a–

Miriam: Educational benefit.

Ben: Correct.

Lisa: In this case does a nice job of what the standard is then moving forward for what districts or other entities are required to do.

Ben: Correct. When you end up in court in a private cause of action, which Franklin creates, you’re subject to or you might get sued and there’s several different theories under Title IX violations, but the most prominent theory and the one that you see most often in the sexual violence, sexual harassment assault-type case, is this theory called the deliberate indifference standard, and so the idea is that your educational institution cannot be deliberately indifferent to a known act of discrimination which occurred while the individual or the student is under the control of the institution.

Miriam: I think that Lisa, you and I have talked about deliberate indifference when we did our series on bullying and deliberate indifference in school context is a clearly unreasonable response in light of the known circumstances. I think this case is so important because it’s the first one that really says, okay, there’s a law saying that you can’t discriminate based on sex, and that’s what’s happening when a child or a young adult is being harassed sexually. That’s taking that that law, which just seems very short and clear and applying it to circumstances that maybe you wouldn’t expect to apply it to, but the Supreme Court said sexual harassment if the school district is deliberately indifferent, if it’s acting unreasonably in light of the known circumstances, then the school district can be held liable under Title IX. You may have to pay out for damages for this young adult’s therapy or for the loss of the education that resulted. In case, this girl, her name was LaShonda. She became suicidal. Her grades dropped, her quality of life and definitely the education that she was receiving from the school district was affected as the Supreme Court found.

Lisa: I think what’s also important for our listeners to understand with deliberate indifference, it really does impact your whole scope of your process, from allegation on through, so you’re not going to be held liable if there really is nothing to show you even knew about something going on, but if a teacher had been told by the student or there’s other facts that should have prompted an investigation and a district didn’t investigate, that might be something that is found to be delivered indifference, or they investigate and ignore what facts they find, and then you move through that process of what you do about the situation.

Miriam: Yes, this is a really interesting case. Are there any other ones that you wanted to touch upon before we wrap up?

Ben: No, but I think Lisa raised two really good points, and I think it underscores a lot of the discussion that we had today. One is, and you’re right on, you really do need to have a policy in place that if someone within your institution is receiving notice of something that they’re doing something about it, and so that that person is your Title IX Coordinator, like we talked about, and that person, you need to have policies in place so that it’s clearly instructed for how to handle it. The other point is that there is some gray here, so the tests we really talked about, it deals with, okay, when does an institution actually know about something? Or when is the conduct actually occurring while the students are under the control the institution? Those types of gray area issues are something that a Title IX Coordinator needs to work in cooperation with legal counsel on to make sure that you’re wading through that gray area without crossing a line into a Title IX violation.

Lisa: Some key takeaways for districts today make sure you have a Title IX Coordinator, whatever you want to call them, make sure they know who they are and your staff knows who they are. Make sure you have outlined a policy regarding these topics, and we can talk about that more in detail and other pursuits.

Miriam: Make sure that your district administrators and teachers and staff know about this policy and know the details of the policy and know whom to bring complaints to. If a student makes a complaint that shouldn’t just get like, “Okay, I’m going to think about this next week after I do everything else on my plate.” That needs to be in most cases, depending on your policy, immediately brought to the attention of the Title IX Coordinator who opens an investigation.

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Lisa: Well, thank you, Ben, for joining us and helping us walk through that background.

Miriam: Thank you so much, Ben.

Ben: Thanks, guys.

Miriam: I hope you all enjoyed this wonderful podcast. Please rate us highly on iTunes, Stitcher or wherever you get your podcasts. Also I do want to point out that many of you have sent in interesting questions and interesting emails and we will get to them, if not during the next episode or two, then certainly right after that. Thank you so much. Have a great day!

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.