Title IX
TITLE IX—THIRTY YEARS OF AVOIDING SEXUAL DISCRIMINATION IN SCHOOLS
by Michael Commins and Sara E. Van Genderen, Esq.
Since the passage of Title IX in 1972, much has been accomplished in the area of equal opportunity for women in education and athletics. Since 1972, women have entered the medical and legal professions in record numbers, and women's participation in intercollegiate athletics has increased fourfold. This progress, however, should not be seen as a reason for schools to forget their responsibilities or for students to forget their rights under Title IX, and incidents of sexual harassment, assault and discrimination are still reported at a steady rate. In hardly more words than in this sentence, Title IX prohibits discrimination in the schools based on sex. Title IX has become widely used as a tool to pursue claims of sexual harassment in schools, but the broader purpose of Title IX includes assuring that school athletic programs provide equal opportunity for boys and girls. Title IX brings nearly all schools within its scope, since any educational program or activity receiving federal financial assistance is covered by the title, and almost all schools receive federal funding.
In the years since the landmark case of Franklin v. Gwinnet, 112 S. Ct. 1028 (1992), Title IX remains the most popular tool for bringing sexual harassment claims, despite the fact that neither Title IX nor Franklin define the parameters for liability under Title IX. Franklin interpreted Title IX to encompass instances of sexual harassment and further held that money damages were available as a remedy under Title IX. Franklin v. Gwinnet involved the claim of a former student in a Georgia school system who claimed she was subjected to continued sexual harassment by a teacher in the student’s high school. The student claimed that the teacher engaged her in sexually oriented conversations, forcibly kissed her on the mouth, telephoned her at home, and eventually forced her to have sex with him in a private office. The student claimed that although the school district investigated the teacher’s sexual harassment of her and other students, the district took no action and discouraged the student from pressing charges. The teacher resigned with the condition that all matters pending against him be dropped; the school closed its investigation. The student filed an OCR (Office of Civil Rights, designated to receive and process Title IX claims) complaint. OCR found that although the school district had subjected the student to verbal and physical sexual harassment and interfered with her right to complain under Title IX, the resignation of the teacher and the school district’s implementation of a formal complaint procedure brought the school district into compliance with Title IX. The student next sued in federal court for $6 million in money damages. The district and circuit courts ruled that Title IX does not authorize such awards. On review, the Supreme Court held that absent any express Congressional directive to the contrary, federal courts have the power to award any appropriate relief in a legal cause of action under federal law.
Of course, not all instances of sexual harassment are as clear-cut as that in Franklin. For example, in Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996), a science teacher and girls’ soccer coach at a Tennessee high school was removed from his coaching position because he allegedly slapped a student across the face and improperly touched two others. The students sued the school board and two school officials under Title IX and Section 1983. The district court held that an incident in which the teacher allegedly fondled a student’s breast may have violated her due process rights, but that the other incidents, while shocking, were not constitutional violations. The 6th circuit agreed with the district court that the other acts complained of were not so extreme as to shock the conscience. The slapping incident was held to be not severe or administered repeatedly, and did not result in physical harm to the student. Another incident involving another female student, in which the teacher rubbed the student’s stomach and made a suggestive remark, was held to be inappropriate and, if proved, should have serious disciplinary consequences for the teacher. But without more, the court stated, it was not conduct that creates a constitutional claim.
While preventing sexual harassment is a major goal of Title IX, it also requires schools to effectively accommodate the athletic interests and abilities of both female and male students, and to provide equal athletic opportunity for both sexes. Generally, schools have a much easier job assuring Title IX compliance in this area, since the guidelines are fairly clear-cut and compliance is less dependent on the character of individuals than in the area of sexual harassment.
Title IX does not necessarily require that girls be allowed to play on boys’ teams and boys be allowed to play on girls’ teams. Although that has been the only viable remedy in cases where no girls’ team existed in the sport a girl desired to play (and also where a boy wanted to play a sport in which only a girls’ team existed), the more common situation comes from allegations that a school has failed to devote equal athletic resources to male and female teams. Title IX regulations recognize that schools can sponsor separate teams where selection is based on skill, or the activity is a contact sport. Contact sports are defined under Title IX as boxing, wrestling, rugby, ice hockey, football, basketball and other sports involving body contact as the purpose and major activity. However, where “separate but equal” teams are provided, Title IX, at 34 CFR 106.41, specifies 10 criteria for determining if equal opportunities for the sexes exist. They are: (1) whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) provision of equipment and supplies; (3) scheduling of games and practices; (4) travel and per diem allowance; (5) opportunities to receive coaching and academic tutoring; (6) assignment and compensation of coaches and tutors; (7) provision of locker rooms; (8) provision of medical and training facilities and services; (9) provision of housing and dining facilities and services; and (10) publicity.
In the case of O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301 (1980), it was held that a gifted female basketball player had no right to play on the school’s boys’ team when a girls’ team existed. Local rules allowed students of either sex to compete on the same teams for noncontact sports, but required separate teams for contact sports. The Supreme Court held that without gender-based classifications in competitive contact sports, boys would likely dominate girls’ programs and deny girls an equal opportunity to compete in interscholastic events. In Ridgeway v. Montana High Sch. Ass’n, 633 F. Supp. 1564 (D. Mont. 1986), the girls’ interscholastic basketball and volleyball seasons were outside the national norm and differed from the boys’ seasons in the same schools. The court held that the placement of these seasons did not deprive female students of equal protection under the Fourteenth Amendment. The court would not find that the Constitution demanded complete equality in specific sport programs, stating that the placement of girls’ basketball in the fall and girls’ volleyball in the winter contributes to the availability of coaches, officials and facilities.
Students or parents who believe they may have a Title IX claim should first inquire whether their school has a formal complaint procedure, and, if it does, should attempt to resolve the problem first through the school’s established procedure. If the school has no complaint procedure, or if the student or parents are dissatisfied with the outcome of a complaint, the next step is to file a complaint with the Office of Civil Rights (OCR). Title IX claims by Wyoming residents are handled by the OCR’s Denver office, U.S. Department of Health and Human Services, 1961 Stout Street – Room 1185 FOB, Denver, CO 80294-3538, (303)844-2024. E-mail: OCR_Denver@ed.gov. Additionally, the OCR website offers information at http://www.hhs.gov/ocr/index.html, and a claim form is available at http://www.hhs.gov/ocr/disform.html. A longer Department of Education article on Title IX is available at http://www.ed.gov/pubs/TitleIX/index.html.
Schools and school districts can do many things to assure their compliance with Title IX. One good starting point is to appoint a Title IX compliance officer. This teacher or administrator should be someone interested in sports, and could even be part of the school’s coaching staff. This person would be charged with developing and/or updating the school’s Title IX compliance policy, implementing the Title IX compliance policy, developing and/or updating the school’s complaint procedure, assisting in the investigation and resolution of complaints made through the school’s complaint procedure, and assisting OCR personnel in the case of a complaint to and investigation by OCR. The compliance officer also should ensure that students and parents are informed of the school’s Title IX compliance policy and complaint procedure. One of the best aids to Title IX compliance (and the best documentation for the school’s attempts to comply) is for the school district to make a sports-based interest survey. Such a survey would ask students what sports they were interested in, what sports they are aware their school offers, and similar questions. The survey should be gender-specific so it is clear who is being measured. A school district that has conducted a survey within the past two years, as well as documented efforts to improve problem areas identified in the survey, is in a much better position to respond to an OCR investigation than a school district that has never made such a survey. Other areas for schools to keep in mind include:
- Are athletic opportunities, program allocation, staffing, coaches’ compensation and experience the same in comparable programs?
- Is the amount of money budgeted and spent on students in comparable programs equal?
- Is money spent on supplies, equipment and uniforms based on the number of athletes being served? Is the allocation of funds in comparable programs equally based on money received from all sources? Funds, supplies and equipment must be distributed so all students in the program benefit equally.
An OCR Title IX investigation can be a long, unsatisfying process for both claimants and school districts. An investigation can take from two weeks to two years; the longer times are usually the result of insufficient or nonexistent documentation on the part of the school district. School districts should keep a history of school sport interest surveys, along with the district’s response to the results of the surveys. Any other information documenting efforts to engage boys’ and girls’ activities should also be kept on file. After an investigation, OCR will deem a school to be in compliance with Title IX if the school passes one of three tests showing effective accommodation of student interests and abilities: 1. Opportunities for males & females are substantially proportionate to their respective enrollments; 2. If, where one sex has been under-represented, the school shows a history and continuing practice of program expansion responsive to the developing interests & abilities of that sex; 3. If, where one sex is under-represented and the school cannot show a continuing practice of program expansion, the school can demonstrate that the interests and abilities of that sex have been fully and effectively accommodated by the present program.
While Title IX has done much to end gender discrimination in education in general and school athletics in particular, there can always be room for improvement. Schools and school districts must be constantly aware of the demands Title IX compliance makes on them. Students and parents should be aware of their rights and the many opportunities available to students as a result of Title IX.
Michael Commins is a paralegal at Mullikin, Larson & Swift LLC and writes occasionally on various subjects. Sara Van Genderen is a member of Mullikin, Larson & Swift LLC in Jackson, Wyoming and acts as counsel for Teton County School District No. One.