“There have been reforms and efforts to improve the climate for study for women…through mechanisms like Title IX enforcement around sexual harassment issues.  However, there is a lot of blockage in the system when it comes to women fulfilling their dreams.”

—Gwendolyn Mink, Professor at Smith College and daughter of former U.S. Representative Patsy Mink (co-author of Title IX legislation)

What is Title IX?

Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in educational institutions that receive federal funding.

Specifically, Title IX 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.”

These 37 words have resulted in nearly five decades of case law and implementing regulation meant to clarify the obligations of schools in safeguarding the rights of students in a wide range of educational settings.  As a result, Title IX has become best known for providing equal opportunities for females participating in school sports and extracurricular activities.  However, Title IX covers so much more.  This includes sexual harassment, gender-based harassment, sexual violence, sexual assault, rape, pregnancy or parenting discrimination, and retaliation.

When most people think about Title IX, they think about it in terms of college.  However, all K-12 public schools are also required to comply with Title IX.  Despite this, many public schools are either unaware of their obligations under Title IX or do not fully understand the protections afforded to all students, regardless of age, under Title IX.

How did Title IX become law?

Following the ratification of the 13th amendment abolishing slavery, state and local Jim Crow Laws began cropping up to enforce racial segregation in the southern states.  Up until the 1950s these laws were largely upheld because of the Supreme Court’s decision in Plessy v. Ferguson, which established “the separate but equal” doctrine.  It was not until 1954 that the Supreme Court overturned this decision in Brown vs. Board of Education where the Court ruled that “the separate but equal” doctrine has no place in public education and that “separate educational facilities are inherently unequal.”

Following the Brown decision a number of other cases began to work their way through the courts to overturn other Jim Crow Laws. Then 10 years after Brown, Congress passed the Civil Rights Act of 1964 (“Civil Rights Act”), which hastened the end of legal Jim Crow.  Title VI of the Civil Rights Act prohibited discrimination based on race, color and national origin in any program or activity that receives federal funding.

After Title VI was passed, many activists lobbied to add sex as a protected class.  However, it took an additional 8 years before Congress passed Title IX.  This federal civil rights law is a parallel to Title VI and prohibits discrimination on the basis of sex in any education program or activity that receives federal funding.  Specifically, Title IX links federal funding to regulatory implementation, so that recipient schools have a mandate to protect students from sex-based discrimination.  As a result, ultimately, if schools that receive federal funds fail to comply with the requirements of Title IX, they risk losing federal funding.

How does Title IX work to protect students from sexual harassment and sexual violence?

Importantly, Title IX protects students by prohibiting sexual harassment and sexual violence in educational institutions. These are clear manifestations of sex discrimination which limit the opportunities of students. Given this, schools are required to implement strategies to safeguard students from such behavior perpetrated by school personnel or peers.  Schools are also required to effectively address such misconduct.  This misconduct can either occur in school or outside of school if it spills over into the school setting and affects a student’s ability access to an educational opportunity or benefit.

In Gebser v. Lago Vista I.S.D. (1998) and Davis v. Monroe County Board of Education (1999), the U.S. Supreme Court ruled that schools and personnel in the hierarchy of vicarious liability will be held strictly liable for sexual harassment against a student when someone in a position to take remedial action has knowledge that the harassment is occurring and exhibits deliberate indifference to the harassing behavior. Knowledge plus deliberate indifference include the two criteria for the imposition of strict liability on schools and personnel in order to reinforce the need for educational institutions to enact substantive sexual harassment policies, reporting mechanisms, investigatory procedures and dispute resolution processes that will adequately protect students.

What is considered sexual harassment and sexual violence under Title IX?

Sexual harassment can take a wide variety of shapes and forms.  It includes unwelcomed sexual advances, requests for sexual favors, pressures for sexual activity and written and verbal comments or communications.

It includes the taking or sharing of photographs of another person without the other person’s consent or knowledge.

It includes intentionally exposing oneself to another without the consent of the other person.

It includes comments about the appearance of others, sexual innuendos, and humor or jokes about sex.

It includes spreading rumors about or rating other students as to appearance, sexual activity, or performance.

It includes graffiti of a sexual nature such as displaying or sharing sexually explicit drawings, and pictures or written material.

It includes “mooning,” “pantsing,” “skirting,” “streaking,” “sharking,” “snapping,” and leaving or sending obscene messages on school computers or other electronic devices.

It includes sex-stereotyping including, but not limited to, verbal or written comments about either a student’s masculinity or femininity or lack thereof.

It includes harassment based upon a student’s actual or perceived sexual orientation.  This includes but is not limited to making homophobic remarks, verbal or written disparaging comments, and verbal or written slurs.

It includes same-sex harassment.

Moreover, sexual harassment can also include facially neutral abusive conduct if, when viewed in totality of the circumstances, there are other incidents of sex based harassment that are tied to the facially neutral abusive conduct.

Sexual violence includes, but is not limited to, rape, sexual assault, and unwanted physical conduct of a sexual nature. This includes a completed or attempted sex act without the consent of the other person or with someone that is unable to consent.

This also includes touching another person either over or under clothes, pinching or patting, intentionally brushing up against someone else’s body, and touching oneself sexually.

What is a Sexually Hostile School Environment?

Under Title IX recipient schools will only be held liable for damages if they were deliberately indifferent to known acts of sexual harassment which create a hostile school environment.

A hostile environment is defined as words or conduct of a sexual nature that is “so severe, pervasive and objectively offensive” that it prevents the victim from accessing educational opportunities and benefits provided by the recipient school district. However, it is important to note that within the context of Title IX, a student’s claim of hostile environment can arise from a single incident.

Is retaliation covered by Title IX?

Title IX further protects students by providing a cause of action for damages to anyone who is retaliated against for reporting a violation. In Jackson v. Birmingham Board of Education (2005), the U.S. Supreme Court ruled that Title IX prohibits not only gender discrimination in educational programs and activities, but also retribution – explicit or implied – against anyone who reports Title IX violations or advocates for improved Title IX compliance strategies by a school. As a result, students, along with school personnel such as teachers, coaches and Title IX Coordinators, and third parties such as parents, community members and media, are protected against any form of reprisal for informal or formal complaints of Title IX violations.

What responsibilities do schools have under Title IX?

A school has a responsibility to respond promptly when it receives a report of sexual harassment or sexual violence.  Specifically, the school must take immediate and reasonable actions to eliminate the sexual harassment or sexual violence, prevent its recurrence, and address its effects. If the educational institution fails to do this, it will be considered to be deliberately indifferent and liable under Title IX for the harassment.

However, this standard does not require a school district to respond with one definitive, particular method.  Nor does it require a school district to eradicate all sexual harassment.  However, a school district must respond and take steps that are reasonable in light of the known circumstances. Additionally, where a school district is aware that the remedial action taken has proved to be inadequate or ineffective, it must take subsequent reasonable action to eliminate the behavior.

Even if a student or his or her parent does not want to file a complaint or does not request that the school take any action on the student’s behalf, if a school knows that sexual harassment or sexual violence has occurred, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.

What are a school’s responsibilities to address sexual harassment and sexual violence?

  • A school has a responsibility to respond promptly and reasonably in light of the known circumstances.
  • Even if a student or his or her parent does not want to file a complaint or does not request that the school take any action on the student’s behalf, if a school knows that sexual harassment or sexual violence has occurred, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.
  • A criminal investigation into allegations of sexual harassment or sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

What procedures must a school have in place to prevent sexual harassment and sexual violence and resolve complaints?

  • Every school must have and distribute a policy against sex discrimination.
  • Every school must have a Title IX Coordinator.
  • Every school must have and make known procedures for students to file complaints of sex discrimination, sexual harassment, and sexual violence.

What should I do if my child has been the victim of sexual harassment or sexual violence?

  • Immediately report to your child’s school. If you do this in person or over the phone, follow up in writing.
  • If you believe that your child might be the victim of a crime, immediately report it to the police.
  • Seek medical attention to ensure that your child has the proper supports both for his or her physical needs and for his or her emotional needs.
  • If you have questions about whether your child’s school is responding appropriately, call an attorney.

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