Title IX in K-12 Schools

No person in the United States shall, based on 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. –Title IX of the Education Amendments of 1972 

What is Title IX?

Title IX is a federal statute, ratified in 1972 as one of the Education Amendments, intended to protect students and other individuals from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX applies to institutions that receive federal financial assistance from the U.S. Department of Education (ED), which includes both state and local educational agencies. These agencies include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.

Title IX protects all students from discrimination on the basis of sex, including students being treated differently, harassed, or subject to hostile environments on the basis of sex. Title IX’s protections extend to all aspects of a school’s “programs and activities,” including admissions, access to courses and classes, athletics, including resources, athletic facilities and athletic opportunities provided to students. The Department’s regulations implementing Title IX have largely remained unchanged, with a few exceptions, since 1975. 

2020 Regulations

In May 2020, the Department finalized historic regulations. The regulations marked the first time the Department of Education recognized, in law, sexual harassment or sexual misconduct as a form of sex discrimination prohibited under Title IX. Prior to the passage of the 2020 regulations, sexual harassment had only been addressed through the issuance of informal guidance documents known as “Dear Colleague Letters.”. These 2020 regulations included:

Improved due process protections.

• The 2020 rules provided an express presumption of innocence – which was not the default setting prior to 2020. Accused students should now be given written assurance that they are presumed innocent, and schools are not able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk.
• The 2020 rules improved the impartiality of proceedings. Schools must provide procedures that are both “prompt” and “equitable,” giving students sufficient time to prepare for interviews and a hearing. In addition, students must now receive written (and ongoing) notice of allegations, and have access to ALL of the evidence related to the evaluation – and accused students are now able to submit, examine, and challenge evidence. Furthermore, schools may “not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.” K-12 public schools are permitted, but not required, to provide hearings. They must issue a final written decision and offer a way of appealing. 
• The 2020 rules require the use of impartial investigators and decision-makers are required; prior to this, only slightly more than half of schools explicitly required that fact-finders be impartial. 

A clarification as to WHAT must be investigated, WHEN, and by WHOM.

• WHAT must be investigated: The 2020 rules formally codified a definition of “sexual harassment” that comports with what the Supreme Court of the United States found in Davis v. Monroe County Board of  Education (1999): unwelcome conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” The amended definition also includes sexual assault, dating violence, domestic violence, or stalking as well as quid pro quo harassment on the basis of sex. The previous definition broadly included “any unwelcome conduct of a sexual nature,” which led students and faculty to be punished for speech and expression protected by the First Amendment. The 2020 rules make the scope of actionable sexual harassment more precise and should exclude conduct that ought to be protected under the First Amendment. 
• WHERE schools have Title IX jurisdiction: The 2020 rules clarified that schools must respond to any sexual harassment that takes place “in the school’s education program or activity.” This includes not only incidents that occur on school grounds, but also incidents that occur in contexts where the school has “substantial control,” including school-sponsored field trips.
• WHO is responsible: The 2020 rules clarified that in the K-12 context, schools are obligated to investigate complaints whenever any employee has notice of sexual misconduct; if any employee of the school (a bus driver, librarian, teacher, etc) becomes aware, the school is on notice and is required to respond. If a public school district’s Title IX coordinator (or any other official with the authority to institute corrective measures on the school’s behalf) learns of misconduct, the school has an obligation to respond to the alleged harassment. Schools must respond promptly and in a manner that is not deliberately indifferent; schools and/or Title IX coordinators must offer “supportive measures” to any person who has alleged sexual harassment, regardless of whether the complainant intends to file a formal complaint. 

Implementation

• Under the 2020 rules, every public school must appoint an employee to coordinate efforts to comply with Title IX responsibilities; this person is known as the “Title IX coordinator.” The 2020 rule increased and expanded the obligations of a public school to know how to report allegations of sexual harassment to the school’s Title IX Coordinator; public schools are required to notify students and employees of the Title IX Coordinator’s contact information, as well as applicants for employment, parents or legal guardians of elementary and secondary students, and all unions. An individual may file a complaint with the Title IX Coordinator at any time; outside of typical business hours, by telephone, mail, or e-mail. Any person may contact the Title IX Coordinator.
• The 2020 rules also required schools to adopt and disseminate Non-Discrimination Policies, written grievance procedures, and information about how to file a formal complaint alleging sexual harassment. Schools must display and post Title IX policies on websites, and in policies and handbooks. Grievance procedures adopted by a public school must provide for the prompt and equitable resolution of student and employee complaints, and a grievance process that must meet  specific standards outlined in the Final Rule.

Gender Identity and Title IX

• At the time of its passage in 1972, Title IX’s prohibition of discrimination “on the basis of sex” would not have been understood to include sexual orientation or gender identity; rather, the commonly understood meaning of the word “sex” referred to an individual’s biological sex.
• Should policymakers desire to expand the definition of “sex” in Title IX to include gender identity, Congress should do so through the legislative process – not by bureaucratic fiat. 

Additional Resources:

• State Policies on Bullying, Harassment, and Hazing, National Center on Safe Supportive Learning
• 9 Things To Know About Title IX, Independent Women’s Forum
• Lia Thomas Was Just the Beginning. Biden Administration Wants to Eliminate Women’s Sports, Heritage Foundation