Some background on Title IX and why it covers sexual misconduct claims at colleges

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Enforcing Title IX: a conundrum for colleges
March 26, 2018

Some background on Title IX and why it covers sexual misconduct claims at colleges

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Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq., with its implementing regulations, 34 C.F.R. Part 106) (“Title IX”) is a federal law that prohibits sex discrimination in federally funded education programs. Since every public college and virtually every private university in the U.S. receives some federal funding – which includes federal student loans – Title IX applies to the over 4,000 public and private two-year and four-year American colleges and universities, including their graduate schools, as well as all public elementary, junior high and high schools.

Over the years, the definition of what constitutes sex discrimination under Title IX has evolved and broadened. In 1977, a federal court ruled for the first time (in Alexander v. Yale University, 459 F. Supp. 1) that sex discrimination under Title IX includes a university’s failure to respond to allegations of sexual harassment. The harassment was claimed by a female student who alleged that a male professor offered her an “A” grade in exchange for sex.

In 1999, the Supreme Court found that schools were responsible under Title IX not only for sexual harassment/discrimination by the school and its employees but also for deliberate indifference to student behavior that created a hostile environment. That case, Davis v. Monroe County Board of Education, 526 U.S. 629, involved a sexual harassment claim of a fifth grader against a fellow student. The court ruled that schools violate Title IX when they are “deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

Thereafter, sexual harassment on college campuses was considered to be sex discrimination within the ambit of Title IX, eventually including “hostile environment” sexual harassment caused by the school, its employees or its students. It is now well accepted that acts of sexual violence and misconduct are sexual harassment and, therefore, a form of sex discrimination prohibited by Title IX. As a result, an allegation of a college student’s sexual misconduct against a classmate – as well as the school’s handling of the complaint, the investigation, the adjudication and the punishment – are all subject to Title IX.