The background of Title IX – Context for controversy

The following is an excerpt from the Brookings Institute.  While disagreeing with their conclusions that the guidance on Title IX has gone too far, this backgrounder is very helpful in understanding the expansion of TITLE IX through regulation and guidance on Title IX. 

“Why is federal policy on so controversial an issue being established through administrative rulemaking? The short answer is that the law on which the federal government’s authority is based—Title IX of the Education Amendments of 1972—says nothing about sexual harassment. Indeed, the term did not come into common use until several years after Congress passed that little-noted amendment to an omnibus education bill. Title IX simply states: “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.” In the 1980s, federal courts held that sexual harassment constitutes a form of sex discrimination under Title VII of the Civil Rights Act, and they began to establish liability rules for employers. In the 1990s, courts applied similar rules to schools under Title IX. The Department of Education’s Office for Civil Rights (OCR) subsequently issued a series of guidance documents building upon these judicial precedents.

In 1998 and 1999, the Supreme Court handed down two key Title IX decisions that established the context for the current debate: Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. The justices held that any school receiving federal money can be held liable for sexual harassment of students by their teachers or peers only if it (1) had “actual knowledge” of the misconduct and (2) responded with “deliberate indifference.” Moreover, the misconduct in question must be “so severe, persistent, and objectively offensive that it effectively bars the victim’s access to educational opportunity.” The Supreme Court’s interpretation of Title IX was narrower than judicial interpretations of Title VII of the Civil Rights Act and previous administrative interpretations of Title IX. Many worried that these decisions strengthened schools’ incentives to “stick their head in the sand”: They could avoid responsibility for addressing sexual misconduct by making it hard for students to report it. OCR agreed: In January 2001, it rejected the Supreme Court’s framework. The court’s interpretation, it maintained, applied only to lawsuits for money damages, not to the conditions attached to federal funding. It imposed more demanding requirements on educational institutions, but for over a decade it made little effort to enforce its mandate.

In 2011, the Obama administration launched a concerted attack on the problem of sexual assault on college campuses. OCR issued a lengthy “dear colleague letter” (DCL) spelling out the many measures schools must institute to “end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again.” OCR followed up with more detailed guidance in 2014, hundreds of investigations of prominent colleges, and scores of legally binding resolution agreements. Underlying this effort was the contention that “one in five college women is sexually assaulted in college” as a consequence of campus culture. Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence.”

Subsequently in late 2020, the Trump administration issued new guidelines, rolling back or rescinding almost all Obama era guidelines.

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