FROM 1972 TO TODAY: TITLE IX BACKGROUND

“No person in the United States shall, on the basis of sex, be excluded in participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” -Education Amendments of 1972

When Congress passed Title IX in the 1970s, it was the result of decades of work. Women’s rights activists fought for years to secure equal rights for women, including increased access to education. Title IX marked the first comprehensive regulations protecting women from sexual harassment and discrimination in the educational context. After this amendment, women’s participation in higher education increased significantly.

Title IX allegations majorly impact the lives of the accused as well as the alleged victim. If you’ve been accused of an act prohibited under Title IX, hiring an experienced attorney is the best way to protect your rights. Contact Marcilliat & Mills PLLC at 919-838-6643.

Welcoming Women Into The Classroom

Before World War II, most women who wanted to go to college enrolled at women-only colleges. Though there were a handful of colleges that accepted women, they generally relegated women to “ladies’ courses” and other sex-segregated programming. Women’s enrollment was low and graduation rates were even lower.

As women’s rights activism became more effective, co-educational institutions slowly became the norm. By the end of the 20 ^th century, most American collegiate programs were co-ed.

Before Title IX

Schools had slowly began accepting women into their halls, but programming for women was often lacking. Moreover, schools across the country could still receive federal financial aid while denying women entry. Feminist groups saw this as unacceptable, especially in the wake of the Civil Rights Act. As a response, the women’s movement challenged the existing national regulations.

Schools that did enroll women were also denying women equal opportunity in other ways. When schools were co-educational, women often could not participate in clubs, sports and other extracurricular activities. Most educational institutions only provided men’s programs for athletics. And, the issue was pervasive. Schools at all levels – elementary, high school and colleges and universities – consistently denied women and girls access to enriching activities on the basis on sex.

Title IX was introduced and passed as a direct response to the women’s movement.

The Education Amendments Of 1972

The Education Amendments of 1972 is a comprehensive federal law that prohibits sex discrimination in all educational programs that receive federal funding. Title IX under the Education Amendments is the specific portion of the law that focuses on sex discrimination.

The Office for Civil Rights (OCR) of the U.S. Dept. of Education enforces Title IX. In its ” Dear Colleague Letter,” the OCR wrote, “The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”

With sexual violence, the OCR has defined it broadly to include any sexual activity that happens against a person’s will or without the person’s consent due to incapacitation from drugs or alcohol. (Read more on the definition of consent in the Title IX context.)

Title IX And Intercollegiate Athletics

Most people are familiar with Title IX in terms of sports. Title IX require schools to provide equal programming for women’s athletics on campus. Initial controversy about whether women should be allowed in men’s sports programs, especially dangerous sports like football, led to National Collegiate Athletics Association (NCAA) involvement.

Currently, schools are required to provide women’s sports programs in addition to men’s sports programs. For many years, this seemed to be satisfactory. However, equal access to women’s sports programs may not be enough. There are many questions about whether women should be able to participate in traditionally male sports in a co-ed setting. For instance, some individuals and groups are pushing back on whether they should be included in sports like football, where there is no female sporting equivalent. There are also questions about how gender identity and transgender students fit into the sporting world.

Title IX And Sexual Harassment

According to Title IX and Supreme Court rulings, sexual harassment creates a hostile environment and counts as discrimination. The Office for Civil Rights within the Department of Education released a series of “Dear Colleague” letters meant to provide guidance to schools. The letters provide examples and extensive advice on what behaviors schools are and are not responsible for investigating.

There are many Dear Colleague letters. The most notable was released in 2011 under the Obama administration. This letter makes clear that the Department of Education believes Title IX expressly prohibits:

• Sexual assault and rape
• Sexual harassment, including unwanted sexual contact like groping
• Sexual coercion
• Stalking and voyeurism, including acts that result in sexual videos and photos

Schools that fail to act after receiving a report about a prohibited act risk losing their federal funding.

What Title IX Requires

Colleges and universities are required to develop investigation processes for complaints. They are required to provide grievance procedures and policies that:

• Have a clear means of receiving complaints
• Appoint an identifiable coordinator for complaint management and oversight (often the Title IX coordinator)
• Prohibit sex discrimination in compliance with Dear Colleague letters and court rulings
• Comply with Title IX regulations regarding investigation procedures and investigations
• Create a comprehensive student disciplinary process
• Refer cases to law enforcement as appropriate

Title IX investigators are very familiar with regulations, but they do not need to prove an allegation beyond a reasonable doubt. Instead, they just need to show that an event was “more likely than not” or, in some cases, “substantially more likely than not” to find someone responsible. Read more about why these lower burdens of proof can be so harmful to the accused in these cases.

A Long History In The Courts

After its passage, Title IX’s adoption was fast, but not free from challenges and questions of interpretation. Major court cases involving Title IX include:

• Cleveland Board of Education v. LaFleur (1974): The Supreme Court addresses the issue of pregnancy in hiring and firing policies.
• Grove City College v. Bell (1984): The Court determines that if students at a university receive federal aid individually, schools denying institutional financial aid can still be held to Title IX.
• Meritor Savings Bank v. Vinson (1986): Sexual harassment constitutes sex discrimination and a hostile environment under Title IX.

These are only a few of the dozens of Supreme Court rulings. Title IX has been the subject of a vast body of case law (court decisions) throughout the years, including throughout the 90s, 2000s and the present.

Title IX And North Carolina Laws

Title IX regulations are not designed with the accused in mind. Fortunately, state laws clarify an important note:

The accused have a right to an attorney during university Title IX disciplinary hearings.

Title IX hearings should ensure the rights of the accused as well as the alleged victims. Those who are accused deserve fair treatment, including an attorney who understands the full ramifications of a hearing.

The accused also have a right to protection from retaliation. School environments should not be hostile or overly punitive without clear and convincing evidence that misconduct occurred.

Ongoing Scrutiny And Enforcement On College Campuses

The current administration is challenging some of the regulations associated with Title IX, particularly those set forward in Dear Colleague letters. Currently, regulations and guidance regarding gender identity and transgender students is in question. A Dear Colleague letter released in 2017 rolled back prior guidance regarding LGBTQ+ students.

Facing Accusations Of Sexual Misconduct?

Thousands of colleges and universities nationwide are invested with the authority (and responsibility) to investigate accusations of sexual misconduct. The schools’ federal funding is at risk if they fail to do so.

For the accused, though, fighting back against these allegations can be an uphill battle. The sooner you get an experienced defense lawyer on your side, the better.

If you’re facing a Title IX investigation, call 919-838-6643 or reach out online. We have offices throughout the state, including Raleigh, Charlotte, Wilmington, Greensb