Title IX Legal Manual
Table of Contents
I. Overview of Title IX: Interplay of Title IX with Title VI,
Section 504, Title VII, and the Fourteenth Amendment
II. Synopsis of Legislative History and Purpose of Title IX
Scope of Coverage
A. Federal Financial Assistance
C. Covered Education Program or Activity
2. Relationship to Title VII
3. Prohibited Employment Practices
5. Regulatory Referral to EEOC
1. Specific Prohibitions
3. Comparable Facilities
4. Access to Course Offerings
5. Counseling and Use of Appraisal and Counseling Materials
6. Financial Assistance
7. Employment Assistance
8. Health and Insurance Benefits and Services
9. Marital or Parental Status
11. Textbooks and Curricular Material
2. General Legal Standards and Relationship to Title VII
V. Procedural requirements for complying with Title IX
C. Dissemination of Policy
D. Designation of Title IX Coordinator
E. Adoption of Grievance Procedures
VI. Federal Funding Agency Methods to Evaluate Compliance
Assurances of Compliance
2. Deferral of Decision Whether to Grant Assistance
3. Pre-Award Authority of Recipients vis-a-vis Subrecipients
5. Recommendations Concerning Pre-Award Reviews
B. Post-Award Compliance Reviews
1. Selection of Targets and Scope of Compliance Review
2. Procedures for Compliance Reviews
VII. Federal Funding Agency Methods to Enforce Compliance
A. Efforts to Achieve Voluntary Compliance
1. Voluntary Compliance at the Pre-Award Stage
Use of Cautionary Language
c. Other Nonlitigation Alternatives
B. "Any Other Means Authorized by Law:" Judicial
C. Fund Suspension and Termination
Fund Termination Hearings
2. Agency Fund Termination Limited to the Particular Political
Entity, or Part Thereof , that discriminated
VIII. Private Right of Action and Individual Relief through Agency
A. Entitlement to Damages for Intentional Violations
B. Availability of Monetary Damages in Other Circumstances
C. Recommendations for Agency Action
D. Lack of States Eleventh Amendment Immunity Under Title IX
IX. Department of Justice Role under Title IX
This Manual provides an overview of the legal principles
of Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. It is
intended to be an abstract of general principles and issues for use by various federal
agencies charged with enforcing Title IX and is not intended to provide a complete,
comprehensive directory of all cases or issues related to Title IX. In addition, this
document is not intended to be a guide for Title IX enforcement with respect to
traditional educational institutions such as colleges, universities, and elementary and
secondary schools, which have been subject to the Department of Educations Title IX
regulations and guidance for 25 years. Rather, this Manual is intended to provide guidance
to federal agencies concerning the wide variety of other education programs and activities
operated by recipients of federal financial assistance. Such programs, many of which first
became subject to Title IX regulations when the Title IX final common rule became
effective on September 29, 2000, may include police academies, job training programs,
vocational training for prison inmates, and other education programs operated by
recipients of federal assistance.
For more specific information on Title IX as it relates to
educational institutions, readers should consult the various documents written and
published by the Department of Education, Office for Civil Rights that can be found on the
Department of Education website. Documents
which may be consulted include: Proposed Revised Sexual Harassment Guidance: Harassment
of Students by School Employees, Other Students, or Third Parties, 65 Fed. Reg. 66092
(2000) (the final Sexual Harassment Guidance is anticipated for a January 2001
publication); Policy Interpretation-Title IX and Intercollegiate Athletics, 45
C.F.R. Part 26 (1979); Clarification of Intercollegiate Athletics Policy Guidance: The
Three-Part Test, dated January 16, 1996; Guidance on the Awarding of Athletic
Financial Assistance (OCR letter to Bowling Green, July 23, 1998), as well as various
other pamphlets, memoranda, and documents. This Manual is in no way intended to supersede
any guidance issued by the Department of Education, and, to the extent that this Manual is
construed to conflict with guidance issued by the Department of Education regarding
traditional educational institutions, the Department of Educations Guidance should
Moreover, since this Manual is not designed to address
Title IX enforcement with respect to traditional educational institutions, a number of
subjects that pertain primarily to schools, such as athletics, are not addressed in depth.
However, the vast majority of Title IX cases do involve educational institutions and so,
of course, the Manual cites extensively to those cases in identifying applicable legal
principles. Although this Manual generally cites to cases interpreting Title IX, cases
interpreting Titles VI and VII of the Civil Rights Act of 1964, and Section 504 of the
Rehabilitation Act of 1973 are also included. While statutory interpretation of these laws
overlap, they are not fully consistent, and this document should not be considered to be
an overview of any statute other than Title IX. Although this Manual is intended primarily
for federal agency investigators use, it includes discussion of many cases involving
individual Title IX lawsuits. It is important for federal agencies to remember that the
standard for a Federal agency to determine whether a recipient has violated Title IX
differs from the higher liability standard of proof that must be met in a court action
before compensatory damages are awarded. Recipients have an affirmative duty to correct
Title IX violations even if no monetary damages would be awarded because of the violation.
It is intended that this manual will be updated
periodically to reflect significant changes in the law. Comments on this publication, and
suggestions as to future updates, including published and unpublished cases, may be
Federal Coordination and Compliance Section
Civil Rights Division
U.S. Department of Justice
Attention: Title IX Legal Manual Coordinator
P.O. Box 66560
Washington, D.C. 20035-6560
Telephone and TDD (202) 307-2222
FAX (202) 307-0595
This Manual is intended only to provide guidance on
general principles related to Title IX enforcement outside the context of traditional
educational institutions. It is not intended to, does not, and may not be relied upon to
create any right or benefit, substantive or procedural, enforceable at law by any party
against the United States.
I. Overview of Title IX: Interplay with Title VI, Section
504, Title VII, and the Fourteenth Amendment
In June 1972, President Nixon signed Title IX of the
Education Amendments of 1972 into law. Title IX is a comprehensive federal law that has
removed many barriers that once prevented people, on the basis of sex, from participating
in educational opportunities and careers of their choice. It 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
20 U.S.C. § 1681, et seq. Title IX applies
to all aspects of education programs or activities operated by recipients of federal
financial assistance.1 In addition to educational institutions
such as colleges, universities, and elementary and secondary schools, Title IX also
applies to any education or training program operated by a recipient of federal financial
assistance. For example, Title IX would cover such diverse activities as a forestry
workshop run by a state park receiving funds from the Department of Interior; a boater
education program sponsored by a county parks and recreation department receiving funding
from the Coast Guard; a local course concerning how to start a small business, sponsored
by the state department of labor that receives funding from the Small Business
Administration; state and local courses funded by the Federal Emergency Management Agency
in planning how to deal with disasters; and vocational training for inmates in prisons
receiving assistance from the Department of Justice (hereinafter referred to as
"DOJ" or "Justice Department" or "the Department").
Generally, it covers all aspects of the education program, including admissions, treatment
of participants, and employment. Title IX guarantees equal educational opportunity in
federally funded programs.
Congress consciously modeled Title IX on Title VI of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq., which prohibits
discrimination on the basis of race, color, or national origin in programs or activities
that receive federal funds. Note that Title VIs protections are not limited to
"education" programs and activities, as are those of Title IX.
The two statutes both condition an offer of federal
funding on a promise by the recipient not to discriminate, in what is essentially a
contract between the government and the recipient of funds. Because of this close
connection between the statutes, Title VI legal precedent provides some important guidance
for the application of Title IX. See, e.g., Cannon v. University of
Chicago, 441 U.S. 677, 694-98 (1979)(Congress intended that Title IX would be
interpreted and applied as Title VI has been). Section 504 of the Rehabilitation Act of
1973, which prohibits discrimination on the basis of disability in federally funded
programs, was also modeled after Title VI and, hence, may also provide guidance for an
analysis of Title IX. See Alexander v. Choate, 469 U.S. 287, 294
(1985)(Because Title IX, Section 504, and Title VI contain parallel language, the same
analytic framework should generally apply in cases under all three statutes). These
statutes were enacted to prevent unlawful discrimination and to provide remedies for the
effects of past discrimination.
Although much of Title VI case law can be applied to Title
IX situations, the analogy is not perfect because Title IX contains several important
exemptions that are absent in Title VI. For example, with regard to single-sex admissions
policies, Title IXs prohibitions against sex discrimination apply only to
vocational, professional, graduate, and public undergraduate schools (except for those
public institutions of undergraduate higher education that traditionally and continually
from their establishment have had a policy of admitting only students of one sex).2 Title IX does not cover the single-sex admissions policies of
elementary, secondary, (other than vocational schools), or private undergraduate schools.
Additional Title IX exemptions include the membership
policies of certain university-based social fraternities and sororities, the Girl and Boy
Scouts, the YMCA and YWCA, the Camp Fire Girls and certain other voluntary single-sex and
tax-exempt youth service organizations whose members are chiefly under age 19.
Also exempt are any programs or activities of the American
Legion undertaken in connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls Nation conference;
and any program or activity of a secondary school or educational institution specifically
for the promotion of any Boys State conference, Boys Nation conference or the selection of
students to attend any such conference. Further, Title IX does not apply to father-son or
mother-daughter activities at an educational institution - but if such activities
are provided for students of one sex, reasonably comparable opportunities much be provided
for members of the other sex. Finally, any scholarship or other financial assistance
awarded by an institution of higher education to an individual because such individual has
received such award in a single-sex pageant is exempt provided the pageant complies with
other nondiscrimination provisions of federal law.
Title IX exempts from coverage any educational operation
of an entity that is controlled by a religious organization only to the extent Title IX
would be inconsistent with the religious tenets of the organization.3
For example, Title IX would not require a religiously controlled organization that trains
students for the ministry to offer such training to women if the organizations
religious tenets hold that all ministers must be men. Title IX also exempts institutions
that train individuals for the military or the merchant marine.
In addition to the statutory exemptions discussed above,
the Title IX common rule contains a few other exceptions permitting single-sex programs
under certain limited circumstances. For example, section ___.110(a)requires appropriate
remedial action if a designated agency official finds that a recipient has discriminated
against persons on the basis of sex. In the absence of a finding of discrimination,
section ___.110(b) permits affirmative action consistent with law to overcome the effects
of conditions that resulted in limited participation in a program by persons of a
particular sex. Either of these provisions could permit single-sex programs under
appropriate circumstances. In addition, several other regulatory provisions permit
single-sex programs: section ___.415(b)(5) permits portions of education programs or
activities that deal exclusively with human sexuality to be conducted in separate sessions
for boys and girls; section ___.445(b) permits a program offered to pregnant students on a
voluntary basis that is comparable to that offered to non-pregnant students; sections
___.414(b)(2) and (6) permit recipients to make requirements based on objective standards
of physical ability or of vocal range or quality; and section __ .415(b)(3) permits
separation by sex in physical education classes involving contact sports. In addition,
section 420(b) permits exclusion, on the basis of sex, of any person from admission to a
nonvocational school operated by a local education agency, so long as "...such
recipient otherwise makes available to such person, pursuant to the same policies and
criteria of admission, courses, services, and facilities comparable to each course,
service, and facility offered in or through such schools." 4
It is important to note that even though Title IX carves
out the above exceptions to its general prohibition on sex discrimination,
governmental/public recipients may still have a constitutional duty not to discriminate on
the basis of sex. Under the Equal Protection Clause of the Fourteenth Amendment, a
governmental classification based on sex can be lawful only if the classification serves
"important governmental objectives and that the discriminatory means employed"
are "substantially related to the achievement of those objectives." Mississippi
Univ. for Women v. Hogan, 458 U.S. 718, 724(1982)(nursing school could not justify
excluding male applicants; policy violated the Fourteenth Amendment notwithstanding Title
IX exemption, quoting, Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142,
150 (1980)). For example, even though Title IX may not prohibit a traditionally single-sex
public entity providing training for nurses from excluding male applicants, the public
entity must still demonstrate an "exceedingly persuasive justification" for the
restrictive admission policy in order to survive an equal protection challenge. Id.
at 724 (citing, Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)). See
also United States v. Virginia, 518 U.S. 515 (1996)(U.S. Department of
Justice successfully challenged military schools male-only admissions policy under
Title IV of the Civil Rights Act.
The Title IX regulations contain a variety of procedural
requirements, the most important of which is the requirement to establish grievance
procedures. The regulations require that every recipient to which Title IX applies
"adopt and publish grievance procedures providing for prompt and equitable resolution
of student and employee complaints alleging any action that be prohibited by these Title
IX regulations." § ___.135. These grievance procedures are an essential element in
ensuring that Title IX and its implementing regulations are complied with in the least
contentious manner possible.5
Unlike Title VI which covers employment only in limited
circumstances, Title IX clearly covers employment discrimination. Title IXs
availability as an independent basis to attack discriminatory employment practices does
not mean, however, that its analytical and evaluative methodology is divorced from that
used under Title VII of the Civil Rights Act of 1964. Rather, like Title VI, Title IX
borrows heavily from Title VII in its theory and approach to sex-based employment
discrimination. It is generally accepted outside the sexual harassment context that the substantive
standards and policies developed under Title VII apply with equal force to employment
actions brought under Title IX. By contrast, however, it is generally held that Title IX
does not incorporate the procedural requirements of Title VII. For a more detailed
discussion of the relationship between Title IX and Title VII, see Chapter IV(b) of
this Manual. Section 5 of that chapter discusses the joint rule issued by the Department
of Justice and the Equal Employment Opportunity Commission, which sets forth procedures
that federal agencies are to utilize when processing Title IX employment cases.
II. Synopsis of Purpose of Title IX,
Legislative History, and Regulations
Congress enacted Title IX with two principal
objectives in mind: to avoid the use of federal resources to support discriminatory
practices in education programs, and to provide individual citizens effective protection
against those practices.See Cannon v. University of Chicago, 441
U.S. 677, 704 (1979).
As the womens civil rights movement gained
momentum in the late 1960's and early 1970's, sex bias and discrimination in
schools emerged as a major public policy concern. Women, who were entering the workforce
in record numbers, faced a persistent earnings gap compared to their male counterparts. As
a consequence of the equality in the workforce debate, Americans also began to focus
attention generally on inequities that inhibited the progress of women and girls in
education. Several advocacy groups filed class action lawsuits against colleges and
universities and the federal government. These advocacy organizations complained of
an industry-wide pattern of sex bias against women who worked in colleges and
universities. As a consequence, Congress focused on the issue of sex bias in education
during the summer of 1970 at a set of hearings on discrimination against women before a
special House Subcommittee on Education chaired by Representative Edith Green (Oregon).
Representative Green introduced a higher education bill with provisions regarding sex
equity wherein she unsuccessfully attempted to add a prohibition on sex discrimination to
the Education Amendments of 1971.
A year later, Title IX began its congressional life in
earnest when an amendment was introduced in the Senate by Senator Birch Bayh of Indiana,
who explained that its purpose was to combat "the continuation of corrosive and
unjustified discrimination against women in the American educational system." 118
Cong. Rec. 5803 (1972). During debate, Senator Bayh stressed the fact that economic
inequities suffered by women can often be traced to educational inequities. In support of
the amendment, Senator Bayh pointed to the link between discrimination in education and
subsequent employment opportunities:
The field of education is just one of many areas where
differential treatment [between men and women] has been documented but because education
provides access to jobs and financial security, discrimination here is doubly destructive
for women. Therefore, a strong and comprehensive measure is needed to provide women with
solid legal protection from the persistent, pernicious discrimination which is serving to
perpetuate second-class citizenship for American women.
Id. at 5806-07. Senator Bayh decried the "sex
discrimination that reaches into all facets of education admissions, scholarship
programs, faculty hiring and promotion, professional staffing, and pay scales." Id.
at 5803 (1972).
Congressional activity on the issue increased with the
introduction of various proposals in the House and Senate to end sex discrimination in
education. Although there was growing consensus that sex discrimination in education
should end, there was little agreement as to the best methods for reaching that goal. Some
critics claimed that the legislation was intended to try to maintain a certain quota or
ratio of male to female students. Senator Bayh reiterated many times during the debate
that "the amendment is not designed to require specific quotas. The thrust of the
amendment is to do away with every quota." 117 Cong. Rec. 30,409 (1971). The Senator
went on to state that, "The language of my amendment does not require reverse
discrimination. It only requires that each individual be judged on merit, without regard
to sex." Id.
Even with Senator Bayhs repeated assurances against
quotas, it took a House-Senate Conference Committee several months to iron out the
differences between the House and Senate education bills. In the end, the House attached a
floor amendment to the bill specifying that the legislation would not require quotas.6 The newly clarified legislation was enacted as Title IX of the
Education Amendments Act of 1972, 20 U.S.C.A. § 1681, et seq., on June 23, 1972.
Despite this lengthy process, Title IX was passed without
much debate as to several of its key exemption provisions. For example, early on it was
unclear whether Congress intended to regulate intercollegiate athletics. For this reason,
the statute was amended in 1974 to direct the Department of Health Education and Welfare
to publish proposed implementing regulations, with a provision stating that such
regulations shall include with respect to intercollegiate athletic activities, reasonable
provisions considering the nature of the particular sports.7
In 1988 Congress enacted the CRRA to restore the broad
interpretation accorded the phrase "program or activity" prior to the Supreme
Courts decision in Grove City College V. Bell, 465 U.S. 555 (1984)8. The CRRA amends Title IX and other related nondiscrimination
statutes to afford broad coverage to all of the operations of a recipient (although Title
IXs prohibition against sex discrimination applies only in a recipients
"education" programs). The CRRA clarifies the definition of "program or
activity" or "program." The scope of coverage is no longer limited to the
exact purpose or nature of the federal funding. For example, if a State prison receives
federal financial assistance, all the operations of the State Department of Corrections
are covered by Title VI and Section 504, and all the departments education and
training programs are covered by Title IX. Moreover, it is well established that, when a
recipient is an educational institution, all of the institutions operations are
covered by Title IXs antidiscrimination provisions. See Chapter III(C) for a
more detailed discussion of these concepts.
Moreover, it also should be noted that, consistent with
the CRRAs purpose of achieving broad, institution-wide coverage of a federal funding
recipients program or activity, there is no requirement that federal funds be
extended directly to an "educational" portion of a recipients program in
order to trigger coverage under Title IX. Rather, any federal financial assistance
subjects a recipients entire program or activity to coverage under all four civil
rights statutes, but Title IXs prohibition on sex-based discrimination applies only
to the educational components of a recipients program. For example, in the
hypothetical described above, federal funds distributed to a Department of Corrections for
a non-educational operation such as the provision of medical services would subject all of
the Departments educational operations to coverage under Title IX.
The CRRA also amended Title IX to incorporate an
"abortion neutrality" provision commonly referred to as the Danforth Amendment,
Nothing in this chapter shall be construed to require or
prohibit any person, or public or private entity, to provide or pay for any benefit or
services, including the use of facilities, related to an abortion. Nothing in this section
shall be construed to permit a penalty to be imposed on any person or individual because
such person or individual is seeking or has received any benefit or service related to a
legal abortion. 20 U.S.C. §1688.
Consistent with the Danforth Amendment, the Title IX
common rule does not require or prohibit any person, or public or private entity, to
provide or pay for any benefit or service, including the use of facilities, related to an
abortion. However, medical procedures, benefits, services, and the use of facilities,
necessary to save the life of a pregnant woman or to address complications related to an
abortion are not subject to this section. 65 Fed. Reg. 52869 (2000)(Section __.235(d)(1)).
Moreover, the Title IX common rule prohibits a recipient from discriminating against,
excluding, or denying benefits to a person because that person has obtained, sought, or
will seek an abortion. This prohibition applies to any service or benefit for an applicant
(for enrollment or employment), student, or employee. 65 Fed. Reg. 52869 (2000)(Section
In addition, the CRRA expanded the exemption for entities
controlled by religious organizations. Under the CRRA, the exemption is no longer limited
to educational institutions that are controlled by religious organizations
with tenets contrary to Title IX. Instead, any educational operation of an entity may be
exempt from Title IX due to control by a religious organization with tenets that are not
consistent with the provisions of Title IX. Further, the exemption would apply to a
particular education program operated by a recipient if this separate program is subject
to religious tenets that are not consistent with Title IX.
As in the Department of Education Title IX regulations,
the Title IX common rule provides:
An educational institution or other entity that wishes to
claim the exemption set forth in paragraph (a) of this section shall do so by submitting
in writing to the designated agency official a statement by the highest-ranking official
of the institution, identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Section ___.205(b). The preamble to the Notice of Proposed
Rulemaking of the Title IX common rule explains that if a recipient has already obtained
an exemption from the Department of Education, such exemption may be submitted to another
funding agency as a basis for an exemption from the second funding agency. 64 Fed. Reg.
Title IX requires that agencies promulgate regulations to
provide guidance to recipients of federal financial assistance who administer education
programs or activities on Title IX enforcement. After the passage of Title IX, the
Department of Health, Education, and Welfare (HEW) adopted implementing regulations. 40
Fed. Reg. 24128 (1975). When HEW split in 1980 into two departments, the Department of
Education and the Department of Health and Human Services, each new agency adopted the
regulations. See 34 C.F.R. Part 106 and 45 C.F.R. Part 86, respectively. Two other
federal agencies, the Department of Agriculture and the Department of Energy, also
published Title IX rules around that same time.9
On October 29, 1999 the Department of Justice and 23 other
agencies published a Notice of Proposed Rulemaking to implement Title IX. See 64
Fed. Reg. 58567 (1999). In the Title IX common rule, the substantive nondiscrimination
obligations of recipients, for the most part, are identical to those established by the
Department of Education under Title IX. However, the rule reflects statutory changes to
Title IX, such as those resulting from passage of the CRRA, and modifications to ensure
consistency with Supreme Court precedent. After receiving and reviewing comments, and
making a few additional changes to the regulations in response to these comments, the
Department of Justice and 20 other participating agencies published the final Title IX
common rule on August 30, 2000.10 See 65 Fed. Reg.
Scope of Coverage
A. Federal Financial Assistance
Title IX prohibits, with certain exceptions, any entity
that receives "federal financial assistance" from discriminating against
individuals on the basis of sex in education programs or activities.11
The clearest example of federal financial assistance is the award or grant of money.
However, federal financial assistance may also be in nonmonetary form. See United
States Dept of Transp. v. Paralyzed Veterans, 477 U.S. 597, 607 n.11 (1986). As
discussed below, federal financial assistance may include the use or rent of federal land
or property at below market value, federal training, a loan of federal personnel,
subsidies, and other arrangements with the intention of providing assistance. Federal
financial assistance does not encompass contracts of guarantee or insurance by the federal
government. It is also important to remember that not only must an entity receive federal
financial assistance to be subject to Title IX, but the entity also must receive federal
assistance at the time of the alleged discriminatory act(s) except for assistance provided
in the form of real or personal property. In this situation, the recipient is subject to
Title XI for as long as it uses the property. See Huber v. Howard County, Md.,
849 F. Supp. 407, 415 (D. Md. 1994) (Motion to dismiss claim of discriminatory employment
practices under § 504 denied as defendant received federal assistance during the
time of probationary employment and discharge.), aff'd without opinion, 56 F.3d 61
(4th Cir. 1995), cert. denied, 516 U.S. 916 (1995); see also Delmonte
v. Department of Bus. Profl Regulation, Div. Of Alcohol, Beverages and Tobacco of
Fla., 877 F. Supp. 1563 (S.D. Fla. 1995).12
1. Examples of Federal Financial Assistance
Agency regulations use similar, if not identical, language
to define federal financial assistance:
(1) A grant or loan of Federal financial assistance,
including funds made available for:
(i) The acquisition, construction, renovation,
restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds
extended to any entity for payment to or on behalf of students admitted to that entity, or
extended directly to such students for payment to that entity
(2) A grant of Federal real or personal property or any
interest therein, including surplus property, and the proceeds of the sale or transfer of
such property, if the Federal share of the fair market value of the property is not, upon
such sale or transfer, properly accounted for to the Federal Government.
(3) Provisions of the services of Federal personnel
(4) Sale or lease of Federal property or any interest
therein at nominal consideration, or at consideration reduced for the purpose of assisting
the recipient or in recognition of public interest to be served thereby, or permission to
use Federal property or any interest therein without consideration
(5) Any other contract agreement or arrangement that has
as one of its purposes the provision of assistance to any education program or activity,
except a contract of insurance or guaranty
65 Fed. Reg. 52866 (2000).13
No extended discussion is necessary to show that money, through federal grants,
cooperative agreements and loans, is federal financial assistance within the meaning of
Title IX. See Paralyzed Veterans, 477 U.S. at 607 n.11. For example:
- United States military veterans are enrolled at Holy
University, a private, religious university. The veterans receive payments from the
federal government for educational pursuits and such monies are used by the veterans to
pay a portion of their respective tuition payments at Holy University. Although federal
payments are direct to the veterans and indirect to Holy University, the university is
receiving federal financial assistance.
As set forth in the Title IX common rule, federal
financial assistance may be in the form of a grant of land or use (rental) of federal
property for the recipient at no or reduced cost. Since the recipient pays nothing or a
lower amount for ownership of land or rental of property, the recipient is being assisted
financially by the federal agency. Typically, assurances state that this type of
assistance is considered to be ongoing for as long as the land or property is being used
for the original or a similar purpose for which such assistance was intended. E.g.,
65 Fed. Reg. 52867 at §__.115. Moreover, regulations also generally bind the successors
and transferees of this property, as long as the original purpose, or a similar objective,
is pursued. 65 Fed. Reg. 52867 at § .115. Thus, if the recipient uses the land or rents
property for the same purpose at the time of the alleged discriminatory act, the recipient
is receiving federal financial assistance, irrespective of when the land was granted or
- Sixteen years ago, the Department of Defense (DOD) donated
land from a closed military base to a State social services agency as the location for a
training facility for caseworkers. The training facility has been built and is in use by
the State. Students at the training facility allege sexual harassment against certain
training facilitators. Because the State still uses the land donated to it by the DOD for
its original (or similar purpose), the State is still receiving federal financial
assistance from DOD and DOD has jurisdiction to investigate the complaint under Title IX. See
32 C.F.R. § 195.6.
- A police department has a training facility located in a
housing project built, subsidized, and operated with Housing and Urban Development (HUD)
funds. The police department is not charged rent. Thus, the police department is receiving
federal financial assistance and is subject to Title IX.
Under the Intergovernmental Personnel Act of 1970, federal
agencies may allow a temporary assignment of personnel to State, local, and Indian tribal
governments, institutions of higher education, federally funded research and development
centers, and certain other organizations for work of mutual concern and benefit. See
5 U.S.C. § 3372. This detail of federal personnel to a State or other entity is
considered federal financial assistance, even if the entity reimburses the federal agency
for some of the detailed employee's federal salary. See Paralyzed Veterans,
477 U.S. at 612 n.14. However, if the State or other entity fully reimburses the federal
agency for the employee's salary, it is unlikely that the entity receives federal
financial assistance. For example:
- Two research scientists from the National Institute of
Health (NIH) are detailed to a university research organization for two years to
help research treatments for cancer. NIH pays for three-fourths of the salary of the two
detailed employees, while the organization pays the remaining portion. The research
organization is considered to be receiving federal financial assistance since the federal
government is paying a substantial portion of the salary of the detailed federal
employees. The research organization is thus now subject to Title IX.
Another common form of federal financial assistance
provided by many agencies is training by federal personnel. For example:
- A city police department sends several police officers to
training at the FBI Academy at Quantico without cost to the city. The entire police
department is considered to have received federal financial assistance. See Delmonte
v. Department of Bus. & Profl Regulation, Div. of Alcohol, Beverages, and
Tobacco of Fla., 877 F. Supp. 1563 (S.D. Fla. 1995).
2. Direct and Indirect Receipt of Federal
Federal financial assistance may be received directly or
indirectly.14 For example, colleges indirectly receive
federal financial assistance when they accept students who pay, in part, with federal
financial aid directly distributed to the students. Grove City College v. Bell, 465
U.S. 555, 564 (1984)15; see also Bob Jones Univ. v.
Johnson, 396 F. Supp. 597, 603 (D. S.C. 1974), aff'd, 529 F.2d 514 (4th Cir.
1975). In Bob Jones Univ., 396 F. Supp. at 603, cited with approval in Grove
City, 465 U.S. at 564, the university was deemed to have received federal financial
assistance for participating in a program wherein veterans received monies directly from
the Veterans Administration to support approved educational pursuits, although the
veterans were not required to use the specific federal monies to pay the schools for
tuition and expenses. Bob Jones Univ., 396 F. Supp. at 602-03 & n.22. Even if
the financial aid to the veterans did not reach the university, the court considered this
financial assistance to the school since this released the school's funds for other
purposes. Id. at 602. Thus, an entity may be deemed to have "received Federal
financial assistance" even if the entity did not show a "financial gain, in the
sense of a net increment in its assets." Id. at 602-03. Aid such as this, and
noncapital grants, are equally federal financial assistance. Id.
3. Federal Action That Is Not Federal Financial
To simply assert that an entity receives something of
value in nonmonetary form from the federal government's presence or operations, however,
does not mean that such benefit is federal financial assistance. For example, licenses
impart a benefit since they entitle the licensee to engage in a particular activity, and
they can be quite valuable. Licenses, however, are not federal financial assistance. Community
Television of S. Cal. v. Gottfried, 459 U.S. 498, 509 (1983) (The Federal
Communications Commission is not a funding agency and television broadcasting licenses do
not constitute federal financial assistance); California Assn of the Physically
Handicapped v. FCC, 840 F.2d 88, 92-93 (D.C. Cir. 1988) (same); see Herman
v. United Bhd. of Carpenters & Joinders, 60 F.3d 1375, 1381-82 (9th Cir. 1995)
(Certification of union by the National Labor Relations Board is akin to a license, and
not federal financial assistance under § 504).
Similarly, statutory programs or regulations that directly
or indirectly support, or establish guidelines for, an entity's operations are not federal
financial assistance. Herman, 60 F.3d at 1382 (Neither Labor regulations
establishing apprenticeship programs nor Davis-Bacon Act wage protections are federal
financial assistance.); Steptoe v. Savings of America, 800 F. Supp. 1542, 1548
(N.D. Ohio 1992) (Mortgage lender subject to federal banking laws does not receive federal
financial assistance.); Rannels v. Hargrove, 731 F. Supp. 1214, 1222-23 (E.D. Pa.
1990) (federal bank regulations are not federal financial assistance under the Age
Furthermore, programs "owned and operated" by
the federal government, such as the air traffic control system, do not constitute federal
financial assistance. Paralyzed Veterans, 477 U.S. at 612; Jacobson v. Delta
Airlines, 742 F.2d 1202, 1213 (9th Cir. 1984) (air traffic control and national
weather service programs do not constitute federal financial assistance).16110
Cong. Rec. 13380 (1964).
It also should be noted that while contracts of guaranty
and insurance may constitute federal financial assistance, Title IX specifically states
that it does not apply to contracts of insurance or guaranty. See 20 U.S.C. §
1682; see Gallagher v. Croghan Colonial Bank, 89 F.3d 275, 277-78 (6th Cir.
1996) (Default insurance for bank's disbursement of federal student loans is a
"contract of insurance," and excluded from Section 504 coverage by agency
regulations). But see Moore v. Sun Bank, 923 F.2d 1423, 1427 (11th
Cir. 1991) (loans guaranteed by the Small Business Administration constituted federal
financial assistance since Section 504 does not exclude contracts of insurance or
guarantee from coverage as does Title IX).
Procurement contracts also are not considered federal
financial assistance. DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377
(10th Cir. 1990); Jacobson, 742 F.2d at 1209; Muller v. Hotsy Corp., 917 F.
Supp. 1389, 1418 (N.D. Iowa 1996) (procurement contract by company with GSA to provide
supplies is not federal financial assistance); Hamilton v. Illinois Cent. R.R. Co.,
894 F. Supp. 1014, 1020 (S.D. Miss. 1995). A distinction must be made between procurement
contracts at fair market value and subsidies; the former is not federal financial
assistance although the latter is. Jacobson, 742 F.2d at 1209; Mass v. Martin
Marietta Corp., 805 F. Supp. 1530, 1542 (D. Co. 1992) (federal payments for goods
pursuant to a contract, even if greater than fair market value, do not constitute federal
financial assistance). As described in Jacobson and followed in DeVargas,
there need not be a detailed analysis of whether a contract is at fair market value, but
instead a focus on whether the government intended to provide a subsidy to the contractor.
DeVargas, 911 F.2d at 1382-83; Jacobson, 742 F.2d at 1210. In DeVargas,
a Department of Energy contract, issued through a competitive bidding process after a
determination that a private entity could provide the service in a less costly manner,
evidenced no intention to provide a subsidy to the contractor. Id. at 1382-83. For
- Dept. of Transportation (DOT) contracts with TechStuff, a
private company that provides training on the use of computers for a subway system. Under
the contract, full price is paid by DOT for the training to be provided by TechStuff.
Because this is a direct procurement contract by the federal government, the funds paid to
TechStuff by DOT do not subject TechStuff to Title IX.
Finally, Title IX does not apply to direct, unconditional
assistance to ultimate beneficiaries, the intended class of private citizens receiving
federal aid. For example, social security payments and veterans pensions are not
federal financial assistance. Soberal-Perez v. Heckler, 717 F.2d 36, 40 (2d Cir.
1983), cert. denied, 466 U.S. 929 (1984); Bob Jones Univ., 396 F.
Supp. at 602 n.16.17
A "recipient" is an entity that receives federal
financial assistance and that operates "an education program or activity," and
is thus subject to Title IX. The Title IX common rule provides as follows:
The term recipient means any State or political
subdivision thereof, or any instrumentality of a State or political subdivision thereof,
any public or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or through another
recipient and that operates an education program or activity that receives such
assistance, including any subunit, successor, assignee, or transferee thereof.
65 Fed. Reg. 52866 at § __.105 (2000).
Several aspects of the plain language of the regulations
should be noted. First, a recipient may be a public (e.g., a State, local or
municipal agency) or a private entity. Second, Title IX does not apply to the federal
government. Therefore, a federal agency cannot be considered a "recipient"
within the meaning of Title IX. Third, there may be more than one recipient in a program
of federal financial assistance; that is, a primary recipient (e.g., State agency)
that transfers or distributes assistance to a subrecipient (local entity) for distribution
to an ultimate beneficiary.18 Fourth, a recipient also
encompasses a successor, transferee, or assignee of the federal assistance (property or
otherwise), under certain circumstances. Fifth, as discussed in detail below, there is a
distinction between a recipient and a beneficiary. Finally, although not addressed in the
regulations, a recipient may receive federal assistance either directly from the federal
government or indirectly through a third party, who is not necessarily another recipient.
For example, schools are indirect recipients when they accept payments from students who
directly receive federal financial aid.
The clearest means of identifying a "recipient"
of federal financial assistance covered by Title IX is to determine whether the entity has
voluntarily entered into a direct relationship with the federal government and receives
federal assistance under a condition or assurance of compliance with Title IX. See Paralyzed
Veterans, 477 U.S. at 605-606.
By limiting coverage to recipients, Congress imposes the
obligations of § 504 [and Title IX] upon those who are in a position to accept or reject
those obligations as part of the decision whether or not to "receive" federal
Id. at 606; see also Soberal-Perez, 717
F.2d at 40-41. It is important to note that, by signing an assurance, the recipient is
committing itself to complying with nondiscrimination mandates.19
Even without a written assurance, courts describe obligations under nondiscrimination laws
as similar to a contract, and have thus concluded that "the recipients' acceptance of
the funds triggers coverage under the nondiscrimination provision." Paralyzed
Veterans, 477 U.S. at 605. In this scenario, the recipient has a direct relationship
with the funding agency and, therefore, is subject to the requirements of Title IX. For
- Six years ago, LegalSkool, a law school at a university,
was built partly with federal grants, loans, and interest subsidies in excess of $7
million from the Department of Education (ED). The law school is a "recipient"
because of the funding from ED for construction purposes.
- The U.S. Department of Justice (DOJ) provides funding for
vocational education for inmates at a state prison. The prison is a recipient of federal
financial assistance from DOJ.
- Hall City Police Department (HCPD) received a grant from
DOJ for community outreach programs. HCPD is considered to be a recipient of federal
financial assistance from DOJ.
While showing that the entity directly receives a federal
grant, loan, or contract (other than a contract of insurance or guaranty) is the easiest
means of identifying a Title IX recipient, this direct cash flow does not describe the
full reach of Title IX.20
A recipient may receive funds either directly or
indirectly. Grove City College, 465 U.S. at 564-65.21
For example, educational institutions receive federal financial assistance indirectly when
they accept students who pay, in part, with federal loans. Although the money is paid
directly to the students, the universities and other educational institutions are the
indirect recipients. Id.; Bob Jones Univ., 396 F. Supp. at 602.
In Grove City College, the Supreme Court found that
there was no basis to create a distinction not made by Congress regarding funding paid
directly to or received indirectly by a recipient. 465 U.S. at 564-65. In reaching its
conclusion, the Court considered the congressional intent and legislative history of the
statute in question to identify the intended recipient. The Court found that the 1972
Education Amendments, of which Title IX is a part, are "replete with statements
evincing Congress' awareness that the student assistance programs established by the
Amendments would significantly aid colleges and universities. In fact, one of the stated
purposes of the student aid provisions was to provid[e] assistance to institutions
of higher educations. Pub. L. 92-318, § 1001(c)(1), 86 Stat. 831, 20 U.S.C. §
1070(a)(5)" Grove City College, 465 U.S. at 565-66. Finally, the Court
distinguished student aid programs that are "designed to assist" educational
institutions and that allow such institutions the option of participation in such
programs, from other general welfare programs where individuals are free to spend the
payments without limitation. Id. at 565 n.13.
In contrast, as subsequently explained by the Supreme
Court in Paralyzed Veterans, it is essential to distinguish aid that flows
indirectly to a recipient from aid to a recipient that reaches a beneficiary.
While Grove City stands for the proposition that
Title IX coverage extends to Congress' intended recipient, whether receiving the aid
directly or indirectly, it does not stand for the proposition that federal coverage
follows the aid past the recipient to those who merely benefit from the aid.
477 U.S. at 607.
Along these lines, the Supreme Court in NCAA v.
Smith, 525 U.S. 459, 470 (1999), citing both Grove City and Paralyzed
Veterans, stated that while dues paid to an entity (NCAA) by colleges and
universities, who were recipients of federal financial assistance, "at most ...
demonstrates that it [NCAA] indirectly benefits from the federal assistance afforded its
afforded members." But the Court stated, "This showing, without more, is
insufficient to trigger Title IX coverage. Smith, 525 U.S. at 468.22
4. Transferees and Assignees
Agency regulations and assurances often include specific
statements on the application of Title IX to successors, transferees, assignees, and
In the case of Federal financial assistance extended to
provide real property or structures thereon, such assurance shall obligate the recipient,
or in the case of a subsequent transfer, the transferee, for the period during
which the real property or structures are used to provide an education program or
activity....The designated agency official will specify the extent to which such
assurances will be required of the applicants or recipients subgrantees,
contractors, subcontractors, transferees, or successors in interest.
65 Fed. Reg. 52867 at §__.115 (2000) (emphasis added).
Furthermore, Title IX regulations provide that land
originally acquired through a program receiving federal financial assistance must include
a covenant binding on subsequent purchasers or transferees that requires nondiscrimination
for as long as the land is used for the original or a similar purpose for which the
federal assistance is extended. 65 Fed. Reg. 52867 at § .115 (2000).23
5. Primary/Subrecipient Programs
Many programs have two recipients. The primary recipient
directly receives the federal financial assistance. The primary recipient then distributes
the federal assistance to a subrecipient to carry out a program. Both the primary
recipient and subrecipient must conform their actions to Title IX (and other
nondiscrimination laws). For example:
- A State agency, such as the Department of Children and
Family Services, receives a substantial portion of its funding from the federal
government. The State agency, as the primary recipient or conduit, in turn, funds local
social service organizations, in part, with its federal funds. The local agencies receive
federal financial assistance, and thus are subject to Section 504 (and other
nondiscrimination laws). See Graves v. Methodist Youth Servs., Inc., 624 F.
Supp. 429 (N.D. Ill. 1985).24 Education programs conducted by
the State Department of Children and Family Services and by the local social service
organizations are all covered by Title IX.
- Under the Older Americans Act, funds are given by the
Department of Health and Human Services to State agencies which, in turn, distribute funds
according to funding formulas to local agencies operating programs for elderly Americans.
Title VI applies to the programs and activities of the State agencies because of each
agencys status as a direct conduit recipient passing federal funds on to
subrecipients. Title VI also applies to the local agencies as subrecipients of federal
financial assistance. See Chicago v. Lindley, 66 F.3d 819 (7th Cir. 1995).
Title IX would similarly apply to any education programs conducted by the State or local
6. Contractor and Agent
A recipient may not absolve itself of its Title IX and
other nondiscrimination obligations by hiring a contractor or agent to perform or deliver
assistance to beneficiaries. Agency regulations consistently state that prohibitions
against discriminatory conduct, whether intentional or through sex neutral means with an
unjustified disparate impact, apply to a recipient, whether committed "directly or
through contractual or other arrangements." E.g., 28 C.F.R. §§
42.104(b)(1), (2) (emphasis added). For example:
- A recipient department of corrections contracts with a
tutoring company to provide vocational training to inmates. Employees of the contractor
refuse to admit female prisoners to a welding training class the contractor is conducting.
The recipient is liable under Title IX for the contractor's actions as the contractor is
performing a program function of the recipient.
One also should evaluate the agency's assurances or
certifications; such documents can provide an independent basis to seek enforcement. For
example, the assurance for the Office of Justice Programs, within the Department of
Justice, states, inter alia,
It [the Applicant] will comply, and all its contractors
will comply, with the nondiscrimination requirements of the [Safe Streets Act, Title
VI, Section 504, Title IX . . . .] (emphasis added).
7. Recipient v. Beneficiary
Finally, in analyzing whether an entity is a recipient, it
is necessary to distinguish a recipient from a beneficiary. According to the Supreme
Court, the Title IX regulations issued by the Department of Education "make[s] clear
that Title IX coverage is not triggered when an entity merely benefits from federal
funding." NCAA v. Smith, 525 U.S. 459, 468 (1999), citing 34 C.F.R. §
106.2(h). In NCAA v. Smith, a student athlete sued the NCAA, claiming that the
NCAAs refusal to grant a waiver of its bylaw prohibiting a student from
participating in athletics programs in other than the students undergraduate
institution violated Title IX. Smith claimed that the NCAAs receipt of dues from its
member schools, which received federal financial assistance, subjected the NCAA to Title
The Court, however, rejected this claim and held that
"[a]t most, the [NCAAs] receipt of dues demonstrates that it indirectly
benefits from the federal financial assistance afforded its members. This showing without
more is insufficient to trigger Title IX coverage." Id. at 468. The Court
noted that the definition of a recipient under Title IX regulations follows the
"teaching of Grove City and Paralyzed Veterans: Entities that receive
federal assistance, whether directly or through an intermediary, are recipients within the
meaning of Title IX; entities that only benefit economically from federal assistance are
not." NCAA v. Smith, 525 U.S. at 468.
An assistance program may have many beneficiaries, that
is, individuals and/or entities that directly or indirectly receive an advantage through
the operation of a federal program. Beneficiaries, however, do not enter into any formal
contract or agreement or sign an assurance with the federal government where compliance
with Title VI (or Title IX) is a condition of receiving the assistance. Paralyzed
Veterans, 477 U.S. at 606-607.
In almost any major federal program, Congress may intend
to benefit a large class of persons, yet it may do so by funding - that is, extending
federal financial assistance to - a limited class of recipients. Section 504, like Title
IX in Grove City, 465 U.S. 555 (1984), draws the line of federal regulatory
coverage between the recipient and the beneficiary.
Id. at 609-10. Title IX was meant to cover only those
situations where federal funding is given to a non-federal entity which, in turn, provides
financial assistance to the ultimate beneficiary, or disburses federal assistance to
another recipient for ultimate distribution to a beneficiary.25
It is important to note that the Supreme Court has firmly established that the receipt of
student loans or grants by an entity renders the entity a recipient of federal financial
assistance. See Grove City 465 U.S. at 569.
In Paralyzed Veterans, a Section 504 case decided
under Department of Transportation regulations, the Court held that commercial airlines
that used airports and gained an advantage from the capital improvements and construction
at airports were beneficiaries, and not recipients, under the airport improvement program.
The airport operators, in contrast, directly receive the federal financial assistance for
the airport construction. The Court examined the program statutes and concluded:
Congress recognized a need to improve airports in order to
benefit a wide variety of persons and entities, all of them classified together as
beneficiaries. [note omitted]. Congress did not set up a system where passengers were the
primary or direct beneficiaries, and all others benefitted by the Acts are indirect
recipients of the financial assistance to airports....The statute covers only those who
receive the aid, but does not extend as far as those who benefit from it....Congress tied
the regulatory authority to those programs or activities that receive federal
Id. at 607-09.
C. Covered Education Program or Activity
Title IX prohibits recipients of federal financial
assistance from discriminating on the basis of sex in education programs or activities. In
the context of traditional educational institutions,26 it is
well established that the covered education program or activity encompasses all of
the educational institutions operations including, but not limited to,
"traditional educational operations, faculty and student housing, campus shuttle bus
service, campus restaurants, the bookstore, and other commercial activities." S. Rep.
No. 64 at 17, reprinted in 1988 U.S.C.C.A.N. at 19. As noted in the Introduction,
however, the primary focus of this Title IX Manual is on education programs or activities
conducted outside traditional educational institutions. This section, therefore, discusses
the scope of Title IXs ban on sex discrimination in this context, i.e., what
constitutes a covered "education program or activity" for recipients of federal
financial assistance other than traditional educational institutions, such as hospitals or
In analyzing the scope of coverage under Title IX, it is
critical to understand the role of the CRRA. As discussed in Chapter I, the CRRA amended
Title IX, Title VI, Section 504, and the Age Discrimination Act by adding an explicit and
expansive definition of "program or activity" that encompasses "all of the
operations of" a covered entity, any part of which receives federal financial
assistance, in order to establish the principle of institution-wide coverage. However,
Title IX, unlike the other statutes amended by the CRRA, prohibits discrimination only in
"education" programs or activities. Thus, it is necessary to reconcile the
institution-wide coverage mandated by the CRRA with the fact that Title IXs ban on
sex discrimination is limited to education programs or activities.
As explained below, outside the context of traditional
educational institutions, a fact-specific inquiry is required to determine which portions
of a covered program or activity are educational, and thus covered by Title IX. In light
of the broad sweep envisioned for Title IX, and the expansive notion of institution-wide
coverage mandated by the CRRA, such inquiries must be made as broadly as possible.
2. The Civil Rights Restoration Act of 1987
Before examining the question of what constitutes a
covered education program or activity under Title IX, as amended by the CRRA, it is
helpful to take a closer look at the CRRA and the expansive definition of
"program" and "program or activity" enacted by this amendment.
Congress intent in passing the CRRA was clear: to
establish the principle of broad, institution-wide coverage under the four major civil
rights statutes that prohibit discrimination in federally assisted programs. S. Rep. No.
64 at 2, reprinted in 1988 U.S.C.C.A.N. at 4-5. The CRRA includes virtually
identical amendments to Title IX, Title VI, Section 504, and the Age Discrimination Act,
to broadly define "program" or "program or activity" as "all of
the operations of":
For the purposes of this chapter, the term "program
or activity" and "program" mean all of the operations of--
(1)(A) a department, agency, special purpose district, or
other instrumentality of a State or of a local government; or
(B) the entity of such state or local government that
distributes such assistance and each such department or agency (and each other State or
local government entity) to which the assistance is extended, in the case of assistance to
a State or local government;
(2)(A) a college, university, or other postsecondary
institution, or a public system of higher education; or
(B) a local education agency (as defined in § 8801 of
this title), system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, private
organization, or an entire sole proprietorship --
(i) if assistance is extended to such corporation,
partnership, private organization, or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of
providing education, health care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically
separate facility to which Federal financial assistance is extended, in the case of any
other corporation, partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more
of the entities described in paragraph (1), (2), or (3);
any part of which is extended Federal financial
20 U.S.C. § 1687. Since passage of the CRRA, courts have
consistently held that the receipt of federal funds results in entity-wide coverage under
these statutes. See, e.g., Knight v. Alabama, 787 F. Supp. 1030, 1064
(N.D. Ala. 1991), affd in part, revd in part, and vacated in part, 14
F.3d 1534 (11th Cir. 1994). See also United States Department of
Justice, Title VI Legal Manual, Chapter VII (1998).
3. Meaning of "education program or
It is clear that the CRRA was designed to establish broad
institution-wide coverage for Title IX, Title VI, Section 504, and the Age Discrimination
Act. However, by defining only "program or activity," the CRRA did not directly
address the question of how to interpret the modifier "education" for purposes
of Title IX coverage. As a result, coverage under Title IX involves an issue of statutory
interpretation that does not arise for the other three civil rights statutes, namely: to
what extent does "education" provide a limitation on the concept of
institution-wide coverage embodied in the CRRA?
The legislative history of the CRRA reveals that some
members of Congress struggled with this very issue. Some legislators apparently believed
and/or feared that enactment of the CRRA would effectively "read-out" the
education limitation in Title IX by prohibiting sex discrimination in all of the
operations of a recipients program or activity, provided the program or activity
contained at least one educational component. Other members of Congress, however,
apparently believed that the receipt of federal funds would subject a recipients
entire program or activity to coverage under all four civil rights statutes, but Title
IXs prohibition on sex-based discrimination would remain limited to the educational
components of a recipients program, if any.
Most significantly, the 1988 Senate Report for the CRRA
addresses this limitation. Although the Report contains numerous hypotheticals to explain
the new definition of "program or activity" (most of which do not single out
Title IX, referring collectively to the four civil rights statutes instead), one example
does note that Title IXs coverage will be limited to education:
If a private hospital corporation is extended federal
assistance for its emergency rooms, all the operations of the hospital, including for
example, the operating rooms, the pediatrics department, admissions, discharge offices,
etc., are covered by Title VI, Section 504, and the Age Discrimination Act. Since Title IX
is limited to education programs or activities, it would apply only to the students and
employees of education programs operated by the hospital, if any.
S. Rep. No. 100-64, at 17.28
4. Covered "education programs or
Of course, ordinary rules of statutory construction
require that meaning be given to all phrases of a statute. See Connecticut
Dept of Income Maintenance v. Heckler, 471 U.S. 524, 530 n.15 (1985). As the
Supreme Court has repeatedly emphasized, "It is a familiar principle of statutory
construction that courts should give effect, if possible, to every word that Congress has
used in a statute." Id.
Thus, in determining the proper scope of coverage for
Title IX, as amended by the CRRA, it is important to give meaning to both the modifier
"education" and the phrase "program or activity." This requires that
the fact that Title IXs ban on sex discrimination is limited to
"education" be balanced against the concept of broad, institution-wide coverage
contemplated by the CRRAs definition of "program or activity."
In light of these considerations, a fact-specific inquiry
is necessary to determine what constitutes a covered "education program or
activity." In other words, Title IXs scope of coverage will depend upon which
portions of a covered program or activity are educational in nature.
In conducting such factual inquiries, it is important to
remember that determinations as to what constitutes a covered education program must be
made as broadly as possible. This principle is consistent with both the broad sweep of
coverage originally envisioned for Title IX as well as the expansive notion of
institution-wide coverage mandated by the CRRA.
Notably, the Ninth Circuit has concluded that it is
appropriate to conduct just such a fact-specific inquiry in order to determine the proper
scope of coverage under Title IX. In Jeldness v. Pearce, 30 F.3d 1220 (9th Cir.
1994), the court determined that whether various components of a correctional facility,
such as the prison industries, the farm annex, or the forest work camp, constituted an
"educational" program within the meaning of Title IX was a question of fact. Jeldness,
30 F.3d at 1226.
As the Jeldness opinion illustrates, the question
of what constitutes a covered education program for purposes of Title IX requires a
factual determination as to whether the relevant portion of a recipients program is
educational in nature. While Title IXs antidiscrimination protections, unlike Title
VIs, are limited in coverage to "education" programs or activities, the
determination as to what constitutes an "education program" must be made as
broadly as possible in order to effectuate the purposes of both Title IX and the CRRA.
Both of these statutes were designed to eradicate sex-based discrimination in education
programs operated by recipients of federal financial assistance, and all determinations as
to the scope of coverage under these statutes must be made in a manner consistent with
this important congressional mandate.
IV. Discriminatory Conduct
Title IX was modeled after Title VI of the Civil
Rights Act of 1964 and they both share a common purpose: to ensure that public funds
derived from all the people are not utilized in ways that encourage, subsidize, permit, or
result in prohibited discrimination against some of the people.29
Towards that end, both Title VI and Title IX broadly prohibit conduct by a recipient of
federal financial assistance that results in a person being "excluded from
participation in, . . . denied the benefits of, or . . . subjected to discrimination
under" a federally-assisted program or activity.30
Title VI was enacted pursuant to Congress dual
authority under the Spending Clause31 and Section 5 of the
Fourteenth Amendment.32 Thus, both Title VI and Title IX
trace their roots to common constitutional sources.
Title IX, like Title VI, recognizes three general types of
prohibited discrimination: (1) disparate treatment, (2) disparate impact, and (3)
retaliation. Any effective and meaningful administrative enforcement program under Title
IX must be prepared to address all three.
Disparate treatment33 refers
to actions that treat similarly situated persons differently on the basis of a prohibited
classification. In the case of Title IX, the prohibited classification is sex. Under the
disparate treatment theory of discrimination, the core question is whether a recipient,
through its officials, has treated people differently on the basis of sex. Here, the
applicable legal standards under Title VI and Title IX are generally identical and
investigative officials can rely on case law decided under Title VI in establishing
violations under Title IX.34
To establish disparate treatment, the fundamental task is
to show that similarly situated individuals were treated differently because of, or on the
basis of their sex. This requires that the decision maker was aware of the
complainants sex and took action at least in part based on that sex. This does not
mean, however, that the evidence must show "bad faith, ill will or any evil motive on
the part of the [recipient]."35 Disparate treatment
prohibits unjustified sex-based distinctions regardless of the motivation behind those
distinctions. For example, many statutory or administrative schemes that illegally
discriminate on the basis of sex were created or were subsequently justified as efforts to
address the special needs of a particular sex.36 It is not a
harmful motive, but the decision to treat differently on the basis of sex, that runs afoul
of Title IX.
Evidence of discriminatory intent may be direct or
circumstantial and may be found from various sources, including statements by decision
makers, the historical background of the events in issue, the sequence of events leading
to the decision in issue, a departure from standard procedure (e.g., failure to
consider factors normally considered), legislative or administrative history (e.g.,
minutes of meetings), a past history of discriminatory or segregated conduct, and
Direct proof of discriminatory intent is often
unavailable. In the absence of such evidence, claims of intentional discrimination under
Title IX may be analyzed using the Title VII burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).38
Applying the McDonnell Douglas principles to a
Title IX claim, the investigating agency must first determine whether the case file raises
an inference of discrimination, i.e., the investigating agency must establish a
prima facie case. The elements of a prima facie case may vary depending on the facts of
the complaint, but such elements often include the following:
1. that the aggrieved person was a
member of a protected class;
2. that this person applied for, and was
eligible for, an educational program operated by a recipient of federal financial
assistance that was accepting applicants;
3. that despite the persons
eligibility, he or she was rejected; and,
4. that the recipient selected
applicants of the complainants qualifications of the other sex or that the
program remained open and the recipient continued to accept applications from other
If the case file contains sufficient evidence to establish
a prima facie case of discrimination, the investigating agency must then determine whether
the recipient can articulate a legitimate, nondiscriminatory reason for the challenged
action.40 If the recipient can articulate a nondiscriminatory
explanation for the alleged discriminatory action, the investigating agency must determine
whether the case file contains sufficient evidence to establish that the recipients
stated reason was a pretext for discrimination. In other words, the evidence must support
a finding that the reason articulated by the recipient was not the true reason for the
challenged action, and that the real reason was discrimination based on sex.41
Similar principles may be used to analyze claims that a
recipient has engaged in a "pattern or practice" of unlawful discrimination.
Such claims may be proven by a showing of "more than the mere occurrence of isolated
or accidental or sporadic discriminatory acts."42
The evidence must establish that a pattern of discrimination based on sex was the
recipients "standard operating procedure - the regular rather than the
unusual practice."43 Once the existence of such a
discriminatory pattern has been proven, it may be presumed that every disadvantaged member
of the protected class was a victim of the discriminatory policy, unless the recipient can
show that its action was not based on its discriminatory policy.44
It is also important to remember that some claims of
intentional discrimination may involve the use of policies or practices that explicitly
classify individuals on the basis of sex. Such "classifications" may constitute
unlawful discrimination. For example, the Supreme Court held in a Title VII case that a
policy that required female employees to make larger contributions to a pension fund than
male employees created an unlawful classification based on sex.45
The investigation of such claims should focus on the recipients reasons for
utilizing the challenged classification policies. Most such policies will be deemed to
violate Title IX (assuming the actions occurred in an education or training program)
unless the recipient can articulate a lawful justification for classifying people on the
basis of sex.
In contrast to disparate treatment, which focuses on the
intent to cause sex-based results, disparate impact focuses on the consequences of a
facially sex-neutral policy or practice. Under this theory of discrimination, the core
inquiry focuses on the results of the action taken, rather than the underlying intent.46 Because of this difference in focus, evidence of a
discriminatory intent or purpose is not required. Indeed, "intent" is not an
element in the disparate impact analysis.
Following the Title VI model, Congress delegated to each
funding agency the authority to implement Title IXs prohibition of sex
discrimination in educational programs or activities of recipients of federal financial
assistance by issuing regulations, and those regulations have the force and effect of law.47 In furtherance of this broad delegation of authority, federal
agencies have uniformly implemented Title IX in a manner that incorporates and applies the
disparate impact theory of discrimination.
The courts have sustained the use of disparate impact
theory as lawful and proper exercises of agencies delegated authority, even where
the challenged actions or practices do not constitute intentional discrimination and thus
are not prohibited directly by the explicit language of either Title VI or Title IX.48
Under the disparate impact theory, a recipient violates
agency regulations by using a neutral procedure or practice that has a disparate impact on
protected individuals, and such practice lacks a substantial legitimate justification. As
in Title VI disparate impact cases, the elements of a Title IX disparate impact claim
derive from the analysis of cases decided under Title VII disparate impact law. 49
In a disparate impact case, the focus of the investigation
concerns the consequences of the recipient's practices, rather than the recipient's
intent.50 To establish discrimination under a disparate
impact scheme, the investigating agency must first ascertain whether the recipient
utilized a facially neutral practice that had a disproportionate impact on the basis of
sex.51 In doing so, the investigating agency must do more
than demonstrate that the practice or policy in question is a "bad idea."52 The agency must show a causal connection between the facially
neutral policy and the disproportionate and adverse impact on a protected group.53
If the evidence establishes a prima facie case, the
investigating agency must then determine whether the recipient can articulate a
"substantial legitimate justification" for the challenged practice.54
"Substantial legitimate justification" is similar to the Title VII concept of
"business necessity," which involves showing that the policy or practice in
question is related to performance on the job.55
To prove a "substantial legitimate
justification," the recipient must show that the challenged policy was
"necessary to meeting a goal that was legitimate, important, and integral to the
[recipients] institutional mission."56 The
justification must bear a "manifest demonstrable relationship" to the challenged
policy.57 In an education context, the practice must be
demonstrably necessary to meeting an important educational goal, i.e. there must be
an "educational necessity" for the practice.
If the recipient can make such a showing, the inquiry then
turns to whether there are any "equally effective alternative practices" that
would result in less adverse impact.58 Evidence of either
will support a finding of liability.
Courts have often found Title VI disparate impact
violations in cases where recipients utilize policies or practices that result in the
provision of fewer services or benefits, or inferior services or benefits, to members of a
protected group. A similar outcome should result under Title IX where sex is the basis for
the differences in impact. For example, in Sharif v. New York State Educ. Dept,
709 F. Supp. 345 (S.D.N.Y. 1989), the District Court applied a discriminatory effects test
to analyze the Title IX claims of a class of female applicants for New York State Merit
Scholarships who alleged that the states sole reliance on SAT scores to determine
eligibility for such scholarships disproportionately discriminated against women. The
District Court, in granting the plaintiffs motion for a preliminary injunction,
found that the states system of awarding Merit Scholarships had a discriminatory
impact on women and constituted a violation of Title IX.59 See
also Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984), in which
the Ninth Circuit applied a discriminatory effects test to analyze the Title VI claims of
a class of black school children who were placed in special classes for the "educable
mentally retarded" ("EMR") on the basis of non-validated IQ tests. The
Ninth Circuit upheld the district courts finding that use of these IQ tests for
placement in EMR classes constituted a violation of Title VI.60
Similarly, in Sandoval, the court held that discrimination on the basis of
language, in the form of an English-only policy, had an unjustified disparate impact on
the basis of national origin, and thus violated Title VI.61
In evaluating a potential disparate impact violation, it
is important to examine whether there is a substantial legitimate justification for the
challenged practice and whether there exists an alternative practice that is comparably
effective with less of a disparate impact.62
For example, the Second Circuit in New York Urban
League, reversed the district courts preliminary injunction for its
failure to consider whether there was a "substantial legitimate justification"
for a subway fare increase that had an adverse impact.63
[B]ut the district court did not consider, much less
analyze, whether the defendants had shown a substantial legitimate justification for this
allocation. The MTA and the State identified several factors favoring a higher
subsidization of the commuter lines. By encouraging suburban residents not to drive into
the City, subsidization of the commuter rails minimizes congestion and pollution levels
associated with greater use of automobiles in the city; encourages business to locate in
the City; and provides additional fare-paying passengers to the City subway and bus
system. In these respects and in others, subsidizing the commuter rails may bring material
benefits to the minority riders of the subway and bus system. The district court dismissed
such factors, concluding that the MTA board did not explicitly consider them before voting
on the NYCTA and commuter line fare increases. That finding is largely irrelevant to
whether such considerations would justify the relative allocation of total funds to the
NYCTA and the commuter lines (emphasis added).
Similarly, in Young by and through Young v.
Montgomery County (Ala) Bd. of Educ.,64 the court ruled
that even if a disparate impact were assumed, the defendants had established a
"substantial legitimate justification."
[T]he Defendants presented evidence that Policy IDFA was
adopted to address concerns that the M to M transfer program was being used to facilitate
athletic recruiting in the Montgomery County school system and to help revitalize
Montgomerys west side [minority] high schools. Both of these justifications are
substantial and legitimate because they evince a genuine attempt by the Board of Education
to improve the quality of education offered in [the] County.65
If a substantial legitimate justification is identified,
the third stage of the disparate impact analysis is the challenging partys
identification of a less discriminatory alternative.66 If
there is an alternative policy or procedure that has less of an adverse impact but
achieves the goals that were determined to be legitimate, the recipient should use that
policy or procedure.
A right cannot exist in the absence of some credible and
effective mechanism for its enforcement and enforcement cannot occur in the absence of a
beneficiary class willing and able to assert the right. In order to ensure that
beneficiaries are willing and able to participate in the enforcement of their own rights,
a recipients retaliation against a person who has filed a complaint or who assists
enforcement agencies in discharging their investigative duties violates Title IX.67
The Title IX regulations incorporate the requirement in
the Title VI regulations, which provides that "[n]o recipient or other person shall
intimidate, threaten, coerce, or discriminate against any individual for the purpose of
interfering with any right or privilege secured by [Title VI], or because he has made a
complaint, testified, assisted, or participated in any manner in an investigation,
proceeding or hearing under this subpart."68
Retaliation protections are designed to preserve the
integrity and effectiveness of the enforcement process itself. Because of this purpose,
the merits of any underlying complaint of sex discrimination are irrelevant in assessing a
retaliation complaint.69 The prohibited conduct is the act of
Moreover, protected activities include more than filing
complaints seeking a vindication of personal rights.70 The
Department believes that a narrow reading requiring the prior exercise of personal rights
is inconsistent with the broad remedial purposes behind Title IX itself.71
It is important to re-emphasize that Title VI agency anti-retaliation regulations
(incorporated into Title IX regulations) provide "[n]o recipient or other person
shall intimidate, threaten, coerce, or discriminate against any individual for the purpose
of interfering with any right or privilege secured by [Title VI], . . ." Thus, anyone
who asserts rights secured by Title IX is protected. Retaliation claims have their own
remedial purpose in that they seek to ensure that rights created under a federal civil
rights statute do not go unenforced for fear of adverse official reaction.72
This goal is undercut if recipients are allowed to retaliate against persons subject to
their authority who publicly object to discrimination against others.
Four elements must be established to make out a prima
facie case of retaliation:
1. The complainant engaged in activities
or asserted rights protected under Title IX;
2. The recipient knew of the protected
3. The recipient thereafter subjected
the person to adverse action, treatment or conditions; and
4. There is a causal connection between
the protected activity and the adverse action, treatment or conditions.73
Once a prima facie case of retaliation is established, the
investigating agency must then determine whether the recipient can articulate a
legitimate, nondiscriminatory reason for the adverse action. Id. If the recipient can
offer such a reason, the investigating agency must then show that the recipients
proffered reason is pretextual and that the recipients actual reason was
retaliation. Id. A showing of pretext may be sufficient to support an inference of
retaliation if the fact finder concludes that retaliation was the real purpose of the
B. Employment Discrimination
Title IX has proven a helpful vehicle in addressing
sex-based employment discrimination in educational programs and activities.
Scope of Coverage
Title IX and Title VI differ most in their scope of
coverage. By way of summary, Title VI is broader as to the types of programs or activities
covered (i.e., it covers all the operations of a recipients programs and activities)
but narrow in its ability to reach employment discrimination. Specifically, Title VI
prohibits employment discrimination on the part of a recipient only where a purpose of the
federal financial assistance received is to provide employment. 42 U.S.C. §2000d-3.74 Title IX, on the other hand, is narrower as to the types of
programs or activities covered (i.e., it only covers educational components) but broader
in that it reaches employment discrimination. Because Title IX does not contain limiting
language as does Title VI, the courts have concluded that Title IX reaches employment
discrimination in the educational programs or activities of recipients without limitation.75
Consistent with this construction, most federal agencies
have joined in adopting final regulations implementing Title IX which broadly prohibit
"discrimination in employment, or recruitment, consideration, or selection therefor,
whether full-time or part-time, under any education program or activity operated by a
recipient that receives Federal financial assistance."76
2. Relationship to Title VII
The enforcement schemes of Title IX and Title VII overlap
in the area of employment discrimination.
a. Substantive Standards
In resolving employment actions, the courts have generally
held that the substantive standards and policies developed under Title VII to define
discriminatory employment conduct apply with equal force to employment actions brought
under Title IX.
. . .[W]hen a plaintiff complains of discrimination with
regard to conditions of employment in an institution of higher learning, the method of
evaluating Title IX gender discrimination claims is the same as those in a Title VII case.77
The use of case law and policies developed under Title VII
is similarly appropriate in the administrative setting. In conducting investigations
alleging employment discrimination, agencies shall consider Title VII case law and EEOC
Guidelines, 29 CFR parts 1604-1607, unless inapplicable, in determining whether a
recipient of Federal financial assistance has engaged in an unlawful employment practice.78
b. Procedural Standards
While the courts, including the Supreme Court, have looked
to the substantive standards and policies developed under Title VII as either controlling
or helpful in evaluating claims of employment discrimination under Title IX,79
the same cannot be said of Title VIIs procedural requirements.
The Supreme Court has yet to explicitly decide whether the
far more detailed and comprehensive procedural requirements of Title VII are applicable to
claims of employment discrimination brought under Title IX. The lower courts that have
faced this question are divided. One view treats Title IX as an independent basis for
finding discrimination based on the substantive standards of Title VII, but divorced from
its administrative requirements.80 Under this view,
complainants filing complaints under Title IX are not subject to Title VIIs filing
deadlines, exhaustion of administrative remedy requirements, and state referral
requirements, but are still governed by Title VIIs substantive standards. The other
view is that the more focused and detailed enforcement scheme of Title VII preempts Title
IX in the area of employment discrimination.81 Under this
view, employees of federally assisted education programs operated by recipients of federal
financial assistance have only a Title VII remedy for sex-based employment discrimination.
The Department takes the position that Title IX and Title
VII are separate enforcement mechanisms. Individuals can use both statutes to attack the
same violations. This view is consistent with the Supreme Courts decisions on Title
IXs coverage of employment discrimination, as well as the different constitutional
bases for Title IX and Title VII. Of course, this view is important only for individuals
wishing to file private rights of action in courts. Federal agencies responsible for
investigating Title IX complaints alleging employment discrimination must follow the
procedures discussed in Section B(5) of this chapter. This section describes a regulation
jointly issued by the Department of Justice and Equal Employment Opportunity Commission,82 which sets out procedures for processing employment
complaints covered by both Title VII and Title IX.
3. Prohibited Employment Practices
As noted above, the Title IX common rule specifically
incorporates the disparate impact standard as part of its prohibitions against sex-based
employment discrimination.83 In addition, the Title IX common
rule applies its prohibition against sex-based discrimination to the full range of
activities related to the recruitment, evaluation, classification, payment, assignment,
retention or treatment of employees.84 The Title IX common
rule addresses various areas including the treatment of pregnancy as a temporary
disability, pre-employment inquiries regarding marital or parental status, imposition of
employment criteria or testing devices having a disproportionate impact, recruitment, and
compensation and benefits (including equal pension contributions and benefits).
Where the Title IX common rule does not address some
aspect of the employment relationship or where more detailed guidance is required beyond
that provided by the Title IX common rule (and if there is no relevant guidance issued by
the Department of Education interpreting its Title IX regulations), agency officials
should review and apply the applicable standards and policies developed under Title VII.
4. Special Considerations
Two areas raise special considerations requiring specific
discussion. In some cases, recipients may attempt to modify their obligations under Title
IX in an effort to comply with other legal or contractual obligations. In other cases,
recipients may attempt to create sex-sensitive criteria for employment in specific types
a. Competing Legal Obligations
Recipients are sometimes subject to competing and/or
contradictory requirements having the potential to interfere with their ability to fully
discharge their Title IX obligations. These competing obligations might result from state
or local laws or find their source in third party labor or service contracts. They could
include, for example, limitations or restrictions on the number of hours worked or types
of jobs filled by women. Given the Supremacy and Spending Clauses, however, a
recipients federal obligation to comply with Title IX to eliminate unjustified
sex-based discrimination in employment is superior to its obligation to comply with local
law or third party contracts. In pertinent part, the Title IX common rule provides that:
(a) Prohibitory requirements. The obligation to
comply with §§___.500 through ___.550 is not obviated or alleviated by the existence of
any State or local law or other requirement that imposes prohibitions or limits upon
employment of members of one sex that are not imposed upon members of the other sex.
Thus, in cases of conflict between the requirements of
Title IX and obligations imposed by local law or third party contracts, Title IX controls.
If an entity does not want to follow Title IX, it is free to simply decline federal
financial assistance but it still may be subject to Title VII.
Sex as a BFOQ.
As noted above, Title IX generally incorporates the
standards and policies developed under Title VII of the Civil Rights Act of 1964, as
amended. Among those standards is the recognition that, in extremely limited
circumstances, sex may constitute a bona fide occupational qualification
("BFOQ"). It bears emphasis that BFOQs are very narrow exceptions.85
The Title IX common rule acknowledges and incorporates the
BFOQ exception at §___.550.
A recipient may take action otherwise prohibited . .
.provided it is shown that sex is a bona fide occupational qualification for that action,
such that consideration of sex with regard to such action is essential to successful
operation of the employment function concerned. A recipient shall not take action pursuant
to this section that is based upon alleged comparative employment characteristics or
stereotyped characterizations of one or the other sex, or upon preference based on sex of
the recipient, employees, students or other persons, but nothing contained in this section
shall prevent a recipient from considering an employees sex in relation to
employment in a locker room or toilet facility used only by members of one sex.
In evaluating claims that sex-based job qualifications are
justified as a BFOQ, agency investigative officials should consult and apply the standards
and case law developed under Title VII with respect to this narrow exception.
5. Regulatory Referral to EEOC
Complaints received by federal agencies that allege
sex-based employment discrimination should be processed in conformity with the
"Procedures for Complaints of Employment Discrimination Filed Against Recipients of
Federal Financial Assistance."86 These Joint Complaint
Procedures, promulgated jointly by the Department of Justice and the Equal Employment
Opportunity Commission in 1983, are intended to "reduce duplicative efforts by
different Federal agencies . . . reduce the burden on employers [and] allow . . . agencies
to focus their resources on allegations of services discrimination."87
As discussed below, these procedures require referral of employment complaints to the
Equal Employment Opportunity Commission in some circumstances.
Under the Joint Complaint Procedures, complaints are
deemed filed with the EEOC as of the date the complaint was received by the sister federal
agency. Moreover, the Joint Complaint Procedures require that the recipient be advised of
receipt of the employment complaint within 10 days.88 Within
30 days of receipt, the receiving agency is to determine its jurisdiction over the
complaint and the procedure under which it will be handled.89
In those cases where the agency does not have jurisdiction
over the employment complaint (i.e., the alleged discriminating entity does not receive
federal financial assistance or it receives federal financial assistance but does not have
an educational component), the agency is to transfer the complaint to the EEOC and advise
both the complainant and the recipient of the specific office of the EEOC to which the
complaint is being transferred.
Where the complaint alleges employment discrimination over
which both the agency and EEOC have parallel authority (i.e., a "joint"
complaint), the Joint Complaint Procedures direct that, absent "special
circumstances,"90 individual complaints should be
directed to the EEOC for processing with the referring agencys action deferred
pending completion of the EEOC complaint process. In the case of a joint complaint
alleging a pattern or practice of employment discrimination, however, the Joint Complaint
Procedures reverse the referral presumption. In these cases, the Procedures contemplate
that the agency will retain investigative and enforcement authority over the complaint
absent "special circumstances" warranting a referral to the EEOC. Finally, where
the complaint alleges discrimination in both the provision of educational services and
employment, the Joint Complaint Procedures again direct that, absent special
circumstances, the agency should retain its authority over the complaint rather than refer
the matter to the EEOC.
The rationale behind the referral rules set out in the
Joint Complaint Procedures is not difficult to discern. Given Title VIIs specific
focus on employment discrimination and EEOCs nationwide system of complaint
adjudication offices, it is logical to refer all individual complainants to the expert
federal agency. However, complaints alleging a pattern or practice of employment
discrimination or discrimination in the provision of educational services, implicate the
core integrity of the educational program or activity of the recipient of federal
financial assistance. In these cases, logic and the greater expertise of the funding
agency regarding the core purposes of the federal financial assistance argue in favor of
its retaining jurisdiction over these broader complaints.
C. Specific Provisions
1. Specific prohibitions (§
Under the Title IX common rule, as a general matter, in
providing any aid, benefit, or service, a recipient may not, on the basis of sex:
- Treat one person differently from another in determining
whether such person satisfies any requirement or condition for the provision of such aid,
benefit, or service;
- Provide different aid, benefits, or services or provide
aid, benefits, or services in a different manner;
- Deny any person any such aid, benefit, or service;
- Subject any person to separate or different rules of
behavior, sanctions, or other treatment;
- Apply any rule concerning the domicile or residence of a
student or applicant, including eligibility for in-state fees and tuition.
- Aid or perpetuate discrimination against any person by
providing significant assistance to any agency, organization, or person that discriminates
on the basis of sex in providing any aid, benefit, or service to students or employees;
- Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
65 Fed. Reg. at 52870.
Under the Title IX common rule, a recipient may not
apply different rules or regulations, impose different fees or requirements, or offer
different services or benefits related to housing. However, a recipient may provide
separate housing on the basis of sex if such housing is both proportionate in quantity to
the number of students of each sex applying for the housing and comparable in quality and
cost to the student. A recipient which assists an agency, organization, or person in
making housing available to any of its students such as through solicitation,
listing, approval, or otherwise must take reasonable steps to assure itself that
such housing, as a whole, also meets these requirements. However, a recipient may render
such assistance to an agency, organization, or person that provides all or part of such
housing to students of only one sex. 65 Fed. Reg. at 52871.
3. Comparable Facilities
Under the Title IX common rule, recipients of federal
financial assistance must not discriminate in providing facilities on the basis of sex. A
recipient may provide separate toilet, locker room, and shower facilities on the basis of
sex. However, such facilities provided to one sex must be comparable to the facilities
provided to the other sex. 65 Fed. Reg. at 52871.
4. Access to Course Offerings
A recipient generally may not provide an education program
or activity separately on the basis of sex or require or refuse participation by an
individual of a certain sex in courses such as health, physical education, industrial,
business, vocational, technical, home economics, music, and adult education courses on the
basis of sex.91 65 Fed. Reg. 52871. However, in a prison
setting, penal necessities may require educational programs and activities to be offered
separately on the basis of sex. While separate courses may be offered in a prison setting,
penal necessity is not a defense for failing to provide equality of access to comparable
educational programs to male and female inmates.
5. Counseling and use of appraisal and
counseling materials (§ .425)
Under the Title IX common rule, a recipient may not
discriminate against any person on the basis of sex in the counseling or guidance of
students or applicants for admission. Specifically, in appraising or counseling students,
a recipient must not use different testing or other materials on the basis of sex or use
materials that permit or require different treatment of students on the basis of sex. Such
different materials may be used, however, where they cover the same occupational interest
areas and their use is shown to be essential to eliminate sex bias. Finally, where a
recipient finds that a particular class contains a substantially disproportionate number
of individuals of one sex, the recipient must take such action as is necessary to assure
itself that such disproportion is not the result of discrimination on the basis of sex in
counseling or appraisal materials or by counselors. 65 Fed. Reg. at 52871.
6. Financial Assistance (§ __
When a recipient provides financial assistance to any
student participating in an educational program or activity, the recipient must ensure
that it does not provide different types or amounts of assistance, limit eligibility for
such assistance, apply different criteria, or otherwise discriminate in the provision of
financial assistance on the basis of sex. See 65 Fed. Reg. 52871 at § .430(a)(1).
Similarly, the recipient must not assist, solicit, list, approve, provide facilities to,
or assist in any other manner, a "foundation, trust, agency, organization, or person
that provides such assistance to any of the recipients students" in a sexually
discriminatory manner. 65 Fed. Reg. 52871 at §___.430(a)(2).
Although recipients are allowed to administer or assist in
administering specific sex-restricted scholarships, fellowships, or other forms of
financial assistance to students through a domestic or foreign will, trust, bequest, or
similar instrument, the Title IX regulations require that the overall effect of such
sex-restricted financial assistance not discriminate on the basis of sex. 65 Fed. Reg.
52872 at §___.430(b). To ensure compliance with Title IX regulations, recipients must
develop and use procedures that select students to be awarded financial assistance in a
nondiscriminatory manner and not on the basis of availability of funds restricted to
members of a particular sex. 65 Fed. Reg. 52872 at § .430(b)(2)(i). This means that a
recipient cannot deny a scholarship or other financial assistance to an individual because
the available monies are restricted to members of a particular sex. For example,
recipients must select in a sex neutral fashion who is eligible for assistance. They are
than free to allocate assistance to those selected individuals from among sex restricted
scholarships. However, they cannot deny assistance to selected individuals because
scholarships or other financial assistance is sex restricted.92
7. Employment Assistance (§
A recipient who assists any agency, organization, or
person in making employment available to its students must ensure that the employment is
not provided in a discriminatory manner on the basis of sex. If the agency, organization,
or person is offering employment in a discriminatory manner, the recipient must not assist
such an agency, organization, or person by providing its employment service. 65 Fed. Reg.
52872 at § ___.435(a)(1),(2).
8. Health and insurance benefits and
services (§ .440)
Under the Title IX common rule, a recipient must not
discriminate on the basis of sex in providing health and insurance benefits or services.
Specifically, the provision of such benefits and services to students must meet the same
requirements as outlined in the employee provisions of the common rule. 65 Fed. Reg. at
52873-52874. However, these provisions do not prohibit a recipient from providing any
benefit or service that may be used by a different proportion of students of one sex than
of the other, including family planning services. However, any recipient that provides
full coverage health service must provide gynecological care. 65 Fed. Reg. at 52872.
9. Marital or Parental Status
A recipient must not apply any rule concerning a
students actual or potential parental, family, or marital status that treats
students differently on the basis of sex. 65 Fed. Reg. 52872 at § __.445(a). A
students pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery from such termination of pregnancy must be subjected to the same policies that a
recipient applies to any other temporary disability in terms of medical or hospital
benefits, service, plan, or policy available all students in a recipients education
program or activity. 65 Fed. Reg. 52872 at § __.445(b)(4). Where a recipient does not
maintain a leave policy for its students, or where a student does not otherwise qualify
for leave under a policy, a recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, and recovery therefrom as a justification for a leave of absence
for as long a period of time as is deemed medically necessary by the students
physician, at the conclusion of which the student shall be reinstated to the status that
she held when the leave began. 65 Fed. Reg. 52872 at § __.445(b)(5).
A recipient must not exclude any student from
participating in its educational program or activity, including extracurricular
activities, based on the students pregnancy, childbirth, false pregnancy,
termination or pregnancy, or recovery from such termination, unless the student
voluntarily requests to be excluded from the program or activity and placed in a separate
portion of the program. 65 Fed. Reg. 52872 at § __.445(b)(1).
In the context of high schools, at least two court
decisions have addressed the issue of a pregnant students participation in
extracurricular activities. In Wort v. Vierling, the local chapter of the National
Honor Society dismissed a high school student who became pregnant. The high school
officials claimed that she was removed from the honor society because of deficiency in
character by engaging in pre-marital sex, not because of her pregnancy status. Vierling,
No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984), affd on other grounds, 778
F.2d 1233 (7th Cir. 1985). The district court, properly in the Department of
Justices view, rejected this claim and held that the student was excluded from
participating in the honor society on the basis of her sex in violation of Title IX. Id.
Several years later, a high school student in Pennsylvania
was also dismissed from the National Honor Society when she told school officials of her
pregnancy. Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990).
Here the court of appeals refused to overturn the district courts ruling in favor of
the school district. According to the court, there was no clear factual error in the lower
courts conclusion that the school officials dismissed the student because her
leadership and character in the honor society were compromised when she engaged in
pre-marital sex and not because of the resulting pregnancy from such conduct. Pfeiffer,
917 F.2d at 784 (1990). The court did, however, remand the case to the lower court to
reconsider proffered testimony regarding a male honor society student who engaged in
premarital sex, became a father, and married the mother of his child during high school,
but was allowed to retain honor society membership. Id. at 785-786.
Under the Title IX regulations, a recipient is allowed to
require students who are pregnant or have a related condition to obtain certification from
a physician to confirm that a student is physically and emotionally able to continue
participation in a recipients program. However, the recipient may only do so if such
certification is required of all students for other physical or emotional conditions that
require a physicians attention. 65 Fed. Reg. 52872 at § __.445(b)(2). If a
recipient provides a portion of its program or activity separately to a student who is
pregnant or has a related condition and who voluntarily chooses such a program, the
recipient must ensure that the separate portion is comparable to the program offered to
students who are not pregnant. 65 Fed. Reg. 52872 at § __.445(b)(3).
Athletics (§ __.450)
Title IX regulations provide that:
No person shall on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from another person,
or otherwise be discriminated against in any interscholastic, intercollegiate, club or
intramural athletics offered by a recipient, and no recipient shall provide such athletics
separately on such basis.
65 Fed. Reg. 52872 at § ___.450(a).
The regulations also provide that:
a recipient may operate or sponsor separate teams for
members of each sex where selection for such teams is based upon competitive skill or the
activity involved is a contact sport. However, where a recipient operates or sponsors no
such team for members of the other sex, and athletic opportunities for members of that sex
have previously been limited, members of the excluded sex must be allowed to try out for
the team offered unless the sport involved is a contact sport. For the purposes of these
Title IX regulations, contact sports include boxing, wrestling, rugby, ice hockey,
football, basketball, and other sports the purpose or major activity of which involves
65 Fed. Reg. 52872 at § ___.450(b)
The regulations go on to provide that a recipient that
operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall
provide equal opportunity for members of both sexes. A number of factors are set forth to
determine equality of opportunity including but not limited to the provision of equipment,
scheduling of games and practice time, travel and per diem allowances, assignment and
compensation of coaches, provision of locker rooms, provision of medical and training
facilities, provision of housing and dining facilities and publicity. See 65 Fed.
Reg. 52873 - 52874 at § ___.450(c).
The regulations give a recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the elementary,
secondary, and postsecondary school levels an adjustment period to come into compliance
with these requirements. No such adjustment period is set forth for other recipients. See
65 Fed. Reg. 52873 at § ___.450(d).
For additional guidance on how the Department of Education
has interpreted these provisions as they apply to traditional educational institutions see
Policy Interpretation-Title IX and Intercollegiate Athletics, 45 C.F.R. Part 26
(1979); OCRs Title IX Athletics Investigators Manual (1990); and
Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996);
Guidance on the Awarding of Athletic Financial Assistance (OCR letter to Bowling Green,
July 23, 1998).
11. Textbooks and Curricular Material
The Title IX regulations provide that the content of
textbooks or the use of other curricular materials in any education program or activity
are not actionable under Title IX. 65 Fed. Reg. 52873.
Title IX protects students from sexual harassment in
educational programs or activities operated by recipients of federal funding. The
protection against sexual harassment derives from the general prohibitions against sex
discrimination contained in the Title IX common rule at _.400. Those provisions state in
(a)General. Except as provided elsewhere in these
Title IX regulations, no person shall, on the basis of sex, be excluded from participation
in, be subjected to discrimination under any . . . education program or activity operated
by a recipient that receives Federal financial assistance.
* * * * *
(b) . . . in providing any aid, benefit, or service to a
student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in
determining whether such persons satisfies any requirement or condition for provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or
provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of
behavior, sanctions, or other treatment;
* * * * *
(6) Aid of perpetuate discrimination against any person by
providing significant assistance to any agency, organization, or person that discriminates
on the basis of sex in providing any aid, benefit or service to students or employees:
(7) Otherwise limit any person in the enjoyment of any
right, privilege, advantage, or opportunity.
65 F.R. 52870
Moreover, if a recipient discriminates on the basis of
sex, it must take remedial action to overcome the effects of the discrimination. The
common rule at _.110(a)provides:
(a) Remedial action. If the designated agency
official finds that a recipient has discriminated against persons on the basis of sex in
an education program or activity, such recipient shall take such remedial action as the
designated agency official deems necessary to overcome the effects of such discrimination.
65 F.R. 52866
A very comprehensive guidance document concerning sexual
harassment in federally funded education programs and activities was issued by the
Department of Education, Office for Civil Rights on March 13, 1997. A revised guidance
document, with a request for comments, was issued on November 2, 2000. Department of
Educations Proposed Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties, 65 Feg. Reg. 66092 (2000) (the
final Sexual Harassment Guidance is anticipated for a January 2001
publication)("Sexual Harassment Guidance"). The Sexual Harassment Guidance
provides educational institutions that receive federal financial assistance from the
Department of Education with information regarding the legal standards that should be used
in investigating and resolving allegations of sexual harassment of students by school
employees, other students, and third parties. The Sexual Harassment Guidance also can
provide guidance for entities other than educational institutions that administer
education and training programs covered by Title IX. Although some general principles are
discussed below, readers should consult the Sexual Harassment Guidance for details on
investigating sexual harassment complaints. To the extent that information in this Manual
is construed to conflict with the Sexual Harassment Guidance, the Department of Education
Sexual Harassment Guidance should be followed.
2. General Legal Standards, Relationship between
Title IX and Title VII
As noted in the previous section on employment, courts
generally apply standards established under Title VII regarding what constitutes
discrimination to guide their interpretation in Title IX cases. Although, as discussed
below, the Supreme Court held that the Title VII and Title IX standards for assessing a
defendants liability for money damages in private litigation differ, similar
standards have been applied in defining actionable misconduct. See, for example, Alexander
v. Yale Univ., 459 F. Supp. 1, 4 (D. Conn. 1977), affd 631 F. 2d 178 (2d
Cir. 1980)(comparing sex discrimination in educational settings with sex discrimination in
employment settings and deciding that quid pro quo sex harassment provides a cause
of action under Title IX as it does under Title VII). Several years after the decision in Alexander,
the Supreme Court declared that courts should accord Title IX "a sweep as broad as
its language" when interpreting Title IXs scope. North Haven v. Bell,
456 U.S. at 521 (quoting United States v. Price, 383 U.S. 787, 801
(1966)(Congress use of the phrase "no person shall be subjected to
discrimination" in Title IXs statutory language means that employees, as well
as students, are covered by its antidiscrimination provision.) As a result, courts
interpreted Title IX as prohibiting hostile environment harassment in cases
involving employees of educational institutions receiving federal funds. See Davis
v. Monroe County Board of Education, 526 U.S. 629 (1999).
As the body of Title IX sex harassment law has evolved,
the definitions of what conduct constitutes sexual harassment have remained largely
the same under Title IX and Title VII but the legal standards for assessing a
defendants liability for damages in private litigation under the two statutes have
begun to diverge. The Supreme Court has held that a school must be deliberately
indifferent in the face of actual knowledge of the misconduct in order to be liable for
money damages in private litigation under Title IX. Id. In contrast, under Title
VII, an employer may be liable for money damages, under certain circumstances, for a
supervisors harassment of a subordinate even without notice. See Faragher
v. City of Boca Raton, 524 U.S. 775, 807 (1998). For this reason, we will specifically
note in this chapter if a case is based on Title VII.
Importantly, for purposes of administrative enforcement of
Title IX and as a condition of receipt of federal financial assistance - as well as
in private actions for injunctive relief -- if a recipient is aware, or should be aware,
of sexual harassment, it must take reasonable steps to eliminate the harassment, prevent
its recurrence and, where appropriate, remedy the effects. See Department of
Educations Sexual Harassment Guidance.
a. Identity of
Title IX prohibits sexual harassment by teachers or other
employees of the federally funded entity administering an education program or activity. Gebser
v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)(school liable for money damages
in private litigation under Title IX for teacher/student sex harassment if school had
actual knowledge of the misconduct and was deliberately indifferent); Franklin v.
Gwinnett County Pub. Sch., 503 U.S. 60 (1992)(coach/teacher sexual harassment of high
school student actionable under Title IX).
2. Program participants
Title IX also prohibits sexual harassment of one
participant by another participant in a program. See Davis v. Monroe County
Board of Education, 526 U.S. 629 (fifth grade students claim of harassment by
classmate could be actionable under Title IX).
Title IXs prohibition of discrimination on the basis
of sex can include protections against same-sex harassment. The Supreme Court has ruled
that same-sex sexual harassment can constitute discrimination on the basis of sex under
Title VII. See Oncale v. Sundowner Offshore Servs., et al, 523 U.S.
75 (1998) (male employees sexual harassment claim against former employer and
against male supervisors and co-workers may be actionable under Title VII). Similarly,
lower courts have held that Title IX applies even if the participant and harasser are of
the same sex. Kinman v. Omaha Pub. Sch. Dist., 94 F. 3d 463 (8th
Cir. 1996)(female students allegation of sexual harassment by female teacher
sufficient to raise claim under Title IX); Doe v. Petaluma County Sch. Dist., 949
F. Supp. 1415 (N.D. Cal. 1996)(female junior high school students allegation of
sexual harassment by other students, including both boys and girls, sufficient to raise a
claim under Title IX).
c. Gender Harassment
While it is clear that discrimination in violation of
Title IX must be "on the basis of sex," courts have held that subjecting an
individual to sex stereotyping may constitute sex discrimination in appropriate
circumstances. In Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), a Title
VII case, the plaintiff was denied partnership in an accounting firm, due, in part, to the
attitudes of the senior partners who described her as "macho" and advised her to
wear makeup and jewelry and to dress in more feminine clothing. Id. at 235. The
Supreme Court explained:
In the specific context of sex stereotyping, an employer
who acts on the basis of a belief that a woman cannot be aggressive, or that she must not
be, has acted on the basis of gender... As for the legal relevance of sex stereotyping, we
are beyond the day when an employer could evaluate employees by assuming or insisting that
they match the stereotype associated with their group, for in forbidding employers to
discriminate against individuals because of their sex, Congress intended to strike at the
spectrum of disparate treatment of men and women result from sex stereotypes.
Id. at 250-51. (citations and internal quotations
Several circuit courts have also addressed gender-based
harassment on the basis of stereotyping. Higgins v. New Balance Athletic Shoe, Inc.,
194 F. 3d 252 (1st Cir. 1999)(Title VII); Galdieri-Ambrosini v. National
Realty & Dev. Corp., 136 F. 3d 276, 289 (2nd Cir. 1998)(Title
VII)("Evidence of sexual stereotyping may provide proof that an employment decision
or an abusive environment was based on gender.")(citing Price Waterhouse,
490 U.S. at 250-51 (Title VII); Lindahl v. Air France, 930 F. 2d 1434, 1439 (Title
VII)(9th Cir. 1991); Sheehan v. Purolator, Inc., 839 F. 2d 99, 106-77
(Title VII)(2nd Cir.)(Kearse, J., dissenting, cert. denied, 488
U.S. 891, 109 S.Ct. 226 (1988)). Since Title VII legal theories are often used by courts
to evaluate Title IX claims, sex stereotyping may violate the Title IX prohibition of
discrimination on the basis of sex. The fact that the harassment was based on the
perception that the individual was not properly "manly" or "feminine"
may, in appropriate circumstances, be the basis for a sex stereotyping claim filed under
d. Off-premises misconduct
Sexual harassment may be prohibited even when it does not
occur on the program providers premises, as long as the off-premises activity during
which the sexual harassment takes place relates to the covered educational program. Crandell,
D.O. v. New York College of Osteopathic Med., 87 F. Supp. 2d 304 (S.D.N.Y.
2000)(off-campus misconduct actionable under Title IX where harassment occurred in clinic
during the students paid internship). Thus, harassment that occurred off the
premises of an education program operated by a recipient of federal assistance would be
covered. For example, if a federally assisted museum conducted a lecture series which
included field trips away from the museum, harassment that occurred on the field trips
would be covered.
e. Appropriate Remedial Measures
Although courts have not yet ruled on what measures are
appropriate for a recipient to take to remedy sex harassment in a context not involving an
educational institution, the Department of Educations Sexual Harassment Guidance
provides a starting point for analysis. If an educational provider determines that sexual
harassment has occurred, it should take reasonable, timely, appropriate corrective action,
including steps tailored to the specific situation. Sexual Harassment Guidance at 66104 -
66106. For example, the provider may need to counsel, warn, or take more serious
disciplinary action against the harasser, based on the severity of the harassment or any
record of prior incidents. Sexual Harassment Guidance at 66104. In some instances, it may
be appropriate to further separate the harassed participant and the harasser, or direct
the harasser to have no further contact with the participant. These corrective measures
should be designed to minimize, as much as possible, the burden on the participant who was
In some situations, a provider may be required to provide
other services to the participant who was harassed, if necessary to address the effects of
the harassment. For instance, if an instructor gave a low grade to a participant because
the participant failed to respond to the teachers advances, the provider may be
required to make arrangements for an independent assessment of the participants work
and, if necessary, change the grade accordingly, make arrangements for the student to take
the course again with a different instructor, provide tutoring and/or counseling, or take
other measures that are appropriate under the circumstances. Id. In addition, the
provider will also need to take steps to prevent the recurrence of harassment such as
requiring the harasser to attend counseling, or even training the entire staff to ensure
that they understand what types of conduct can cause sexual harassment and that they know
how to respond. Id. at 66105. Under appropriate circumstances, the provider may
find it necessary to terminate the harassers employment.
Furthermore, a policy specifically prohibiting sexual
harassment and separate grievance procedures for violations of that policy can help ensure
that all participants, instructors, employees, third parties, etc. understand the nature
of sexual harassment and that the education program provider will not tolerate such
V. Procedural Requirements for Complying with Title IX
The procedures outlined in this chapter are based on those
provided in the Title IX common rule 65 F.R. 52867 (§§ __.110 - __.140). The procedural
requirements discussed in this chapter are also codified in the Department of Education
Title IX implementing regulations, 34 C.F.R. § 106.4 - 106.9. Where the Title IX common
rule differs from the Department of Education regulation, we have so noted.93
Assurances (§ __.115)
An applicant for or recipient of federal financial
assistance must submit a written assurance to the funding agency that it will operate all
of its education programs or activities in compliance with Title IX and the Title IX
implementing regulations. The assurance must be provided either at the application stage
or the award stage.94 It is important to note that by
regulation this assurance must contain language that commits the applicant or recipient to
undertake whatever remedial action is necessary to eliminate any existing sex
discrimination or to eliminate the effects of past discrimination - whether that
discrimination occurred prior to or subsequent to the submission of the assurance.
Generally, the assurance obligates the applicant or
recipient to comply with Title IX for the period during which the federal funding is
extended. However, with respect to real property provided to operate an education program
or activity, the assurance obligates the recipient (or a subsequent transferee) for the
period during which the real property is used to provide an education program or activity.
Likewise, if the federal funding consists of personal property such as computers, copiers,
etc., the assurance remains in effect for the entire time the recipient retains ownership
or possession of the property.
The funding agency is responsible for designating the form
of the assurance and the extent to which such assurances will be required of the
applicants or recipients subgrantees, contractors, subcontractors,
transferees, or successors in interest. However, the assurance must include language that
obligates the applicant or recipient to "comply with all federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the Education
Amendments of 1972, as amended (20 U.S.C. §1681-1683, 1685-1688)." The Supreme Court
has upheld a funding agencys regulatory power to terminate a recipients
federal financial assistance for failure to execute an assurance of compliance with Title
IX. Grove City College v. Bell, 465 U.S. at 574-575.
Self-evaluation (§ __.110)
Under the Department of Educations Title IX
regulations, educational institutions must assess their current policies and procedures to
determine whether those policies and procedures comply with Title IX and its implementing
regulations within one year after the Title IX regulations apply to them; this is known as
"the self-evaluation requirement." Educational institutions that have already
fulfilled the self-evaluation requirements under the Department of Education Title IX
regulations, 34 C.F.R. §106.3(c), do not have to conduct a second self-evaluation under
the Title IX common rule. Thus, for example, if an educational institution receives funds
from the Department of Education and has already done its self-evaluation under EDs
Title IX rule, and, as a result of the Title IX common rule, is now subject to the Title
IX regulations of the General Services Administration and the Department of Interior from
which it also receives assistance, the institution does not have to perform another
It is important to note that the self-evaluation
requirement in the Title IX common rule applies only to recipients that are educational
institutions (i.e., elementary and secondary schools, high schools, colleges,
universities, etc.) that receive federal financial assistance. It does not apply to
other educational programs and activities. For example, a prison that receives federal
funds from the Department of Justice to administer a vocational training program is not
subject to this regulatory requirement.
An educational institution must evaluate its current
policies and procedures as they affect the admission of students, treatment of students,
and employment of both academic and non-academic personnel working in connection with the
providers education program or activity. To the extent these policies and procedures
do not comply with the requirements of Title IX, the provider must: 1) modify the policies
and procedures to bring them into compliance, and 2) take appropriate steps to remedy any
discrimination that resulted from these practices. Further, an educational institution
must keep records documenting the evaluation and any required modifications for at least
three years and must be able to provide these documents to the funding agency upon
C. Dissemination of Policy (§
Title IX requires all recipients to regularly and
consistently notify the public i.e., participants, employees, applicants,
etc. - that they do not discriminate on the basis of sex in the educational programs
or activities that they operate. While the funding agency can determine the specific
information to be contained in the notification, at a minimum the notice must state that
the protection against sex discrimination also applies to employment in and admission to
the program,95 and that any questions regarding the
application of Title IX can be referred to the recipients designated Title IX
coordinator or to the funding agency.
The recipient must issue this notice within ninety days of
the effective date of the Title IX implementing regulations or within ninety days of the
date that the Title IX regulations apply to the recipient whichever is later. The
recipient must publish this notice in any recipient-operated newspapers and magazines96 or in the recipients student and alumni publications,
and by letter or memorandum to participants and employees. After the initial publication,
all memoranda, bulletins, catalogs, and applications must contain a similar notice. A
recipient should make sure that this policy is widely distributed and easily understood.
D. Designation of Title IX Coordinator (§
Recipients must designate at least one employee to serve
as a Title IX coordinator. This individual is responsible for coordinating the
recipients efforts to comply with and carry out its responsibilities under Title IX
and its implementing regulations, including the investigation of any Title IX complaints
against the recipient. The coordinators name, address, and phone number must be
communicated to all applicants, participants, and employees.
E. Adoption of Grievance Procedures
One of the important aspects of Title IX and its
implementing regulations is their requirement that recipients adopt and publish internal
grievance procedures to promptly and equitably resolve complaints alleging discrimination
on the basis of sex. The responsibility lies with the recipient to establish and maintain
a mechanism whereby program participants and employees may seek to redress illegal sex
discrimination and whereby the recipient may continually be apprized of and evaluate
possible discriminatory policies and procedures and develop strategies to correct
discrimination. Although Title IX does not specify a structure for the implementation of a
grievance procedure, the U.S. Department of Education has suggested some of the basic
components of an effective Title IX grievance procedure in a manual that it has issued on
this topic. See Title IX Grievance Procedures: An Introductory Manual, U.S.
Department of Education, Office for Civil Rights (1987).
It is important to note that there is no private right of
action for damages in the courts for a recipients failure to promulgate a grievance
procedure under Title IX. Courts have held that failure to meet this requirement, by
itself, does not amount to discrimination on the basis of sex. Gebser v. Lago Vista
Sch. Dist., 524 U.S. 274, 292 (1998), Seamons v. Snow, 84 F. 3d 1226 (10th
Despite the lack of a private right of action in the
courts concerning the lack of a grievance procedure, the requirement to establish a prompt
and equitable grievance procedure can be enforced administratively by the funding agency.
The Supreme Court has specifically affirmed the Department of Educations authority
to administratively enforce this regulatory requirement. Gebser, 524 U.S. at 292.
VI. Federal Funding Agency Methods to Evaluate Compliance
The federal agency providing the financial assistance is
primarily responsible for enforcing Title IX as it applies to its recipients. Agencies
have several mechanisms available to evaluate whether recipients are in compliance with
Title IX, and additional means to enforce or obtain compliance should a recipient's
practices be found lacking. Evaluation mechanisms, discussed below, include pre-award
reviews, post-award compliance reviews, and investigations of complaints. Because Title IX
was patterned after Title VI, the Title IX common rule incorporated by reference the
enforcement procedures set forth in the Title VI regulations. 65 Fed. Reg. 52858, 52860
(2000). Accordingly, this section references Title VI cases as well as the Title VI
Coordination Regulations and the "Guidelines for the Enforcement of Title VI, Civil
Rights Act of 1964," (the "Title VI Guidelines"). See 28 C.F.R. §§
42.101-42.412 and 28 C.F.R. § 50.3. The Assistant Attorney General for Civil Rights in a
January 28, 1999 document entitled: Policy Guidance Document: Enforcement of Title VI
of the Civil Rights Act of 1964 and Related Statutes in Block Grant-Type Programs97 relied on the Title VI Coordination Regulations for
the guidance provided and specifically stated:
This document was drafted specifically with reference to
enforcement of Title VI, 42 U.S.C. § 2000d, et seq., which prohibits discrimination on
the basis of race, color, and national origin in all Federal programs receiving Federal
financial assistance. However, the principles set forth are equally applicable to Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., which prohibits
discrimination on the basis of sex in education programs receiving Federal financial
assistance; the federally assisted aspects of Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in both
federally assisted and federally conducted programs; and various fund-granting statutes
that contain prohibitions against discrimination.
Note 1, January 28, 1999 Guidance Document
It is important to remember that the standard for an
agency to determine whether a recipient has violated Title IX differs from the higher
liability standard of proof that must be met in a court action before monetary damages are
awarded. Recipients have an affirmative duty to correct Title IX violations even if no
monetary damages would be awarded because of the violation. As the Supreme Court noted in Gebser,
federal agencies have the power to "promulgate and enforce requirements that
effectuate [Title IXs] nondiscrimination mandate," even in circumstances that
would not give rise to a claim for money damages. Gebser, 524 U.S. at 292.
Moreover, it is the position of the Department of Justice that the standards an agency
follows in finding a violation and seeking voluntary corrective action also would apply to
private actions for injunctive and other equitable (as opposed to monetary) relief. See
brief of the United States as Amicus Curiae in Davis v. Monroe County.
A. Pre-Award Procedures
Agencies should endeavor to ensure that awards of
federal financial assistance are only granted to entities that adhere to the substantive
nondiscrimination mandates of Title IX and other nondiscrimination laws.
1. Assurances of Compliance
The Title IX common rule provides as follows:
Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial assistance contain,
be accompanied by, or be covered by a specifically identified assurance from the applicant
or recipient, satisfactory to the designated agency official, that each education program
or activity operated by the applicant or recipient and to which these Title IX regulations
apply will be operated in compliance with these Title IX regulations.
65 Fed. Reg. 52867 §__.115. Regulations requiring
applicants to execute an assurance of compliance as a condition for receiving assistance
are valid. Grove City College, 465 U.S. at 574-575 (Title IX assurances); Gardner
v. Alabama, 385 F.2d 804 (5th Cir. 1967), cert. denied, 389 U.S. 1046
(1968) (Title VI assurances). If an applicant refuses to sign a required assurance, the
agency may deny assistance only after providing notice of the noncompliance, an
opportunity for a hearing, and other statutory procedures. 42 U.S.C. § 2000d-1; 28
C.F.R. § 50.3 II.A.1. However, the agency need not prove actual discrimination at
the administrative hearing, but only that the applicant refused to sign an assurance of
compliance with Title IX (or similar nondiscrimination laws). Grove City College,
465 U.S. at 575. Assurances serve two important purposes: they remind prospective
recipients of their nondiscrimination obligations, and they provide a basis for the
federal government to sue to enforce compliance with these assurances. See United
States v. Marion County Sch. Dist., 625 F.2d 607, 609, 612-13 (5th Cir.), reh'g
denied, 629 F.2d 1350 (5th Cir. 1980), cert. denied, 451 U.S. 910
2. Deferral of the Decision Whether to Grant
The Title VI Guidelines specifically state that agencies
may defer assistance decisions: "In some instances ... it is legally permissible
temporarily to defer action on an application for assistance, pending initiation and
completion of [statutory remedial] procedures - including attempts to secure
voluntary compliance with title VI" (or Title IX). 28 C.F.R. § 50.3 I.A. Thus,
deferral may occur while negotiations are ongoing to special condition the award, during
the pendency of a lawsuit to obtain relief, or during proceedings aimed at refusing to
grant the requested assistance.99
This interpretation is a reasonable, and even necessary,
application of the statutory remedial scheme. The congressional authorization to obtain
relief pre-award would be sharply reduced, if not rendered a near nullity, if agencies
could not postpone the assistance decision while spending the time needed to conduct a
full and fair investigation and while seeking appropriate relief. Furthermore, the
Attorney General's administrative interpretation is entitled to deference. See, e.g.,
Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45
The Title VI Guidelines recommend that agencies adopt a
flexible, case-by-case approach in assessing when deferral is appropriate, and consider
the nature of the potential noncompliance problem. Where an assistance application is
inadequate on its face, such as when the applicant has failed to provide an assurance or
other material required by the agency, "the agency head should defer action on
the application pending prompt initiation and completion of [statutory remedial]
procedures." 28 C.F.R. § 50.3 II.A.1 (emphasis added). Where the application is
adequate on its face but there are "reasonable grounds" for believing that the
applicant is not complying with [Title IX], "the agency head may defer action
on the application pending prompt initiation and completion of [statutory remedial]
procedures." Id. II.A.2 (emphasis added).101
When action on an assistance application is deferred,
remedial efforts "should be conducted without delay and completed as soon as
possible." Id. I.A. Agencies should also be cognizant of the time involved in
a deferral to ensure that a deferral does not become "tantamount to a final refusal
to grant assistance." Id. II.C. The agency should not completely rule out
deferrals where time is of the essence in granting the assistance, but should consider
special measures that may be taken to seek expedited relief (e.g., by referring the
matter to the Department of Justice to file suit for interim injunctive relief).
3. Pre-Award Authority of Recipients vis-a-vis
The Title VI Guidelines provide that the "same
[pre-award] rules and procedures would apply" where a federal assistance recipient is
granted discretionary authority to dispense the assistance to subrecipients. Id.
[T]he Federal Agency should instruct the approving agency
-- typically a State agency -- to defer approval or refuse to grant funds, in individual
cases in which such action would be taken by the original granting agency itself . . . .
Provision should be made for appropriate notice of such action to the Federal agency which
retains responsibility for compliance with [Title IX compliance] procedures.
Thus, the Title VI Guidelines support federal agencies
requiring that recipients/subgrantors obtain assurances of compliance from subrecipients.102 When the recipient receives information pre-award that
indicates noncompliance by an applicant for a subgrant, recipients may defer making the
grant decision, may seek a voluntary resolution and, if no settlement is reached, (after
complying with statutory procedural requirements), may refuse to award assistance.
Section 42.406(d) of the Title VI Coordination Regulations
lists the types of data that should be submitted to and reviewed by federal agencies prior
to granting funds. In addition to submitting an assurance that it will compile and
maintain records as required, an applicant should provide: (1) notice of all lawsuits
(and, for recipients, complaints) filed against it; (2) a description of assistance
applications that it has pending in other agencies and of other federal assistance being
provided; (3) a description of any civil rights compliance reviews of the applicant during
the preceding two years; and (4) a statement as to whether the applicant has been found in
noncompliance with any relevant civil rights requirements. Id.
The Title IX Common Rule incorporates agencies Title
VI procedures, as each agency participating in the common rule has its own provision
adopting the Title VI procedures.103 See, e.g.,
28 C.F.R. §54.605 (Department of Justice); 15 C.F.R. §8a.605 (Department of Commerce);
22 C.F.R. §146.605 (Department of State); 29 C.F.R. §36.610 (Department of Labor); 32
C.F.R. §196.605 (Department of Defense). DOJs Title VI Coordinating Regulations
require that agencies "shall make [a] written determination as to whether the
applicant is in compliance with Title VI." 28 C.F.R. § 42.407(b). Where a
determination cannot be made from the submitted data, the agency shall require the
submission of additional information and take other steps necessary for making a
compliance determination, which could include communicating with local government
officials or community organizations and/or conducting field reviews. Id.
5. Recommendations Concerning Pre-award Reviews
It is recommended that agencies implement an internal
screening process whereby agency officials are notified of potential assistance grants and
are provided the opportunity to raise a "red flag" or concern about the
potential grant recipient.104 If limited resources are a
problem, agencies should develop a system to target a significant proportion of assistance
As part of the Department of Justice's oversight and
coordinating function, each agency should submit to the Department, as part of its annual
implementation plan, any targeting procedures that are adopted.
Post-Award Compliance Reviews106
Federal agencies are required to maintain an effective
program of post-award compliance reviews.107 Federal agency
Title VI regulations, which are incorporated into Title IX regulations,108
reiterate this requirement.109 Compliance reviews can be
large and complex, or more limited in scope.
1. Selection of Targets and Scope of Compliance
Federal agencies have broad discretion in determining
which recipients and subrecipients to target for compliance reviews. However, this
discretion is not unfettered. In United States v. Harris Methodist Fort Worth, 970
F.2d 94 (5th Cir. 1992), the Fifth Circuit found that a Title VI compliance review
involves an administrative search and, therefore, Fourth Amendment requirements for
"reasonableness" of a search are applicable. The Court considered three factors:
(1) whether the proposed search is authorized by statute; (2) whether the proposed search
is properly limited in scope; and (3) how the administrative agency designated the target
of the search. Id. at 101; United States v. New Orleans Pub. Serv. (NOPSI
III), 723 F.2d 422 (5th Cir.) rehearing en banc denied, 734 F.2d 226 (5th Cir.
1984) (E.O. 11246 compliance review unreasonable) (citing United States v. Mississippi
Power & Light Co., 638 F.2d 899 (5th Cir. 1981)); and First Alabama Bank of
Montgomery, N.A., v. Donovan, 692 F.2d 714, 721 (11th Cir. 1982) (Exec. Order No.
11246 compliance review reasonable); But see Marshall v. Barlow's Inc., 436
U.S. 307 (1978).110
The Harris Court suggested that selection of a
target for a compliance review will be reasonable if it is based either on (1) specific
evidence of an existing violation, (2) a showing that "reasonable legislative or
administrative standards for conducting an . . . inspection are satisfied with respect to
a particular [establishment]," or (3) a showing that the search is "pursuant to
an administrative plan containing specific neutral criteria." Harris Methodist,
970 F.2d at 101 (internal citations omitted); NOPSI III, 723 F.2d at 425.
In Harris Methodist, the court rejected the
Department of Health and Human Services (HHS) attempts to gain access to
records, including a vast array of records associated with confidential, physician peer
review evaluations, as part of a compliance review of the hospital. The court held that
signing an assurance gives consent "only to searches that comport with constitutional
standards of reasonableness." 970 F.2d at 100. Where the proposed compliance review
was not subjected to management review and not based upon consideration of a management
plan or objective criteria, the court of appeals agreed that the HHS official acted
"arbitrarily and without an administrative plan containing neutral criteria." Id.
Thus, agencies are cautioned that they should not select
targets randomly for compliance reviews but, rather, they should base their decisions on
neutral criteria or evidence of a violation. A credible complaint can serve as specific
evidence suggesting a violation that could trigger a compliance review.
In developing targets for compliance reviews, agencies may
wish to take into consideration the following:
- Issues targeted in the agencys strategic plan, if
- Issues frequently identified as problems faced by a
particular recipients program beneficiaries;
- Geographical areas the agency wishes to target because of
the many known problems beneficiaries are experiencing or because the agency has not had a
"presence" there for some time;
- Issues raised in a complaint or identified during a
complaint investigation that could not be covered within the scope of the complaint
- Problems identified to the agency by community
organizations or advocacy groups that cite actual incidents to support their concerns;
- Problems identified to the agency by its block grant
- Problems identified to the agency by other federal, State,
or local civil rights agencies.
Apart from complying with the standards outlined above, it
is recommended that a decision to conduct a compliance review be set forth in writing and
approved by senior civil rights management. An agency may be required to show that it has
selected its targets for compliance reviews in an objective, reasonable manner. A
contemporaneous, written record that reflects the factors considered will aid in refuting
allegations of bias or improper targeting of a recipient. See NOPSI III, 723
F.2d at 428. The written record should identify any regulations or internal guidance that
set forth criteria for selection of targets for compliance reviews, and explain how such
criteria are met.
2. Procedures for Compliance Reviews
Agency Title VI regulations (incorporated into Title IX
regulations) are silent as to procedures for conducting compliance reviews, although, as
discussed, the Title VI Coordination Regulations provide general guidance as to the types
of information to solicit. Federal agencies granting federal financial assistance are
required to "establish and maintain an effective program of post-approval compliance
reviews" of recipients to ensure that the recipients are complying with the
requirements of Title VI. 28 C.F.R. § 42.407(a). Related to the reviews themselves,
recipients should be required to submit periodic compliance reports to the agencies and,
where appropriate, conduct field reviews of a representative number of major recipients.
Finally, the Title VI Coordination Regulations recommend that agencies consider
incorporating a Title VI component into general program reviews and audits. 28 C.F.R. §
42.407(c)(1).112 These Title VI requirements are applicable
to Title IX as well.
Results of post-approval reviews by the federal agencies
should be in writing and include specific findings of fact and recommendations. The
determination by the federal agency of the recipient's compliance status shall be made as
promptly as possible. 28 C.F.R. § 42.407(c).
The Title VI Coordination Regulations require that federal
agencies establish procedures for the "prompt processing and disposition" of
complaints of discrimination in federally funded programs. 28 C.F.R. § 42.408(a).
Agency regulations with respect to procedures for the investigation of complaints of
discriminatory practices, however, are typically brief, and lack details as to the manner
or time table for such inquiry. See, e.g., 28 C.F.R. § 42.107; 32
C.F.R. § 195.8. Generally, by regulation, an agency will allow complainants 180 days
to file a complaint, although the agency may exercise its discretion and accept a
complaint filed later in time. See, e.g., 28 C.F.R. § 42.107(b). An
agency is not obliged to investigate a complaint that is frivolous, has no apparent merit,
or where other good cause is present, such as a pending law suit. An investigation
customarily will include interviews of the complainant, the recipient's staff, and other
witnesses; a review of the recipient's pertinent records, and consideration of the
evidence gathered and defenses asserted. If the agency finds no violation after an
investigation, it must notify, in writing, the recipient and the complainant, of this
decision. See, e.g., 28 C.F.R. § 42.107(d)(2). If the agency believes
there is adequate evidence to support a finding of noncompliance, the first course of
action for the agency is to seek voluntary compliance by the recipient. See, e.g.,
28 C.F.R. § 42.107(d)(1). If the agency concludes that the matter cannot be resolved
through voluntary negotiations, the agency must make a formal finding of noncompliance and
seek enforcement, either through judicial action or administrative fund suspension.
If an agency receives a complaint that is not within its
jurisdiction, the agency should consider whether the matter may be referred to another
federal agency that has or may have jurisdiction, or to a State agency to address the
matter. 28 C.F.R. § 42.408(a)-(b). If a recipient is required or permitted by a
federal agency to process Title IX complaints, such as under certain block grant programs,
the federal agency must ascertain whether the recipients procedures for processing
complaints are adequate. In such instances, the Title VI Coordination Regulations, which
agencies with Title IX responsibilities can look to for guidance, require that the federal
agency obtain a written report of each complaint and investigation processed by the
recipient, and retain oversight responsibility regarding the investigation and disposition
of each complaint. 28 C.F.R. § 42.408(c).
Where an agency receives a complaint about a recipient
that is funded by more than one federal agency, the funding agency may avoid duplicative
compliance and enforcement procedures by sharing or delegating compliance information and
enforcement responsibilities. Section 1-207 of Executive Order 12250 authorizes the
Attorney General to initiate cooperative programs and agreements between federal agencies
to promote the effective enforcement of, inter alia, Title VI and IX. See
also, 28 C.F.R. §§ 42.401-415.
Many agencies that fund entities that operate educational
programs or activities have Title VI delegation agreements with the Department of
Education (ED). However, only two of these agencies, the National Aeronautics and Space
Administration and the Environmental Protection Agency, have Title IX delegation
agreements with ED. Delegation Agreements help to avoid duplicative enforcement efforts
since they give to lead agencies responsibilities for conducting investigations when more
than one agency has jurisdiction over a case. The Federal Coordination and Compliance Section of the
Civil Rights Division is currently developing a comprehensive Title IX and Title VI
interagency Delegation Agreement to include the remaining federal agencies that do not
have Title IX delegation agreements.
Finally, the Title VI Coordination Regulations require
that each federal agency, (and recipients that process Title VI complaints), maintain a
log of complaints received. 28 C.F.R. § 42.408(d). The log shall include the
following: the sex of the complainant, the identity of the recipient, the nature of the
complaint, the date the complaint was filed, the investigation completed, the date and
nature of the disposition, and other pertinent information.
VII. Federal Funding Agency Methods to Enforce
Agency staff should remember that the primary means of
enforcing compliance with Title IX is through voluntary agreements with the recipients,
and that fund suspension or termination is a means of last resort.113
This approach is set forth in the statute, is a reflection of congressional intent, and is
recognized by the courts. See 42 U.S.C. § 2000d-1; Board of Pub.
Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068, 1075 n.11 (5th Cir. 1969)
(citing 110 Cong. Rec. 7062 (1964) (Statement of Sen. Pastore)). Accordingly, if an
agency believes an applicant is violating Title IX, the agency has three potential
(1) resolution of the noncompliance (or potential
noncompliance) "by voluntary means" by entering into an agreement with the
applicant, which becomes a condition of the assistance agreement; or
(2) where voluntary compliance efforts are unsuccessful, a
refusal to grant or continue the assistance; or
(3) where voluntary compliance efforts are unsuccessful,
referral of the violation to the Department of Justice for judicial action. 42 U.S.C.
§ 2000d-1. In addition, agencies may defer the decision whether to grant the
assistance pending completion of a Title IX investigation, negotiations, or other action
to obtain remedial relief.114
A. Efforts to Achieve Voluntary Compliance
Under Title IX, before an agency initiates administrative
or judicial proceedings to compel compliance, it must attempt to obtain voluntary
compliance from a recipient.
Compliance with any requirement adopted pursuant to this
section may be effected (1) by the termination of or refusal to grant or to continue
assistance under such program or activity to any recipient . . . or (2) by any other means
authorized by law: Provided, however, that no such action shall be taken until the
department or agency concerned . . . has determined that compliance cannot be secured by
42 U.S.C. § 2000d-1 (emphasis in original); see Alabama
NAACP State Conference of Branches v. Wallace, 269 F. Supp. 346, 351 (M.D. Ala. 1967)
(voluntary compliance is to be effectuated if possible). Both the Title VI Coordination
Regulations and the Title VI Guidelines urge agencies to seek voluntary compliance before,
and throughout, the administrative or judicial process.115 See
28 C.F.R. § 42.411(a) ("Effective enforcement of Title VI requires that
agencies take prompt action to achieve voluntary compliance in all instances in which
noncompliance is found."); 28 C.F.R. § 50.3 I.C.
Title VI requires that a concerted effort be made to
persuade any noncomplying applicant or recipient voluntarily to comply with Title VI.
Efforts to secure voluntary compliance should be undertaken at the outset in every
noncompliance situation and should be pursued through each stage of enforcement action.
Similarly, when an applicant fails to file an adequate assurance or apparently breaches
its terms, notice should be promptly given of the nature of the noncompliance problem and
of the possible consequences thereof, and an immediate effort made to secure voluntary
An agency is not required to make formal findings of
noncompliance with Title IX before undertaking negotiations or reaching a voluntary
agreement to end alleged discriminatory practices. However, there must be a basis for an
agency and recipient to enter into such a voluntary agreement (e.g., identification
of alleged discriminatory practices, even if the parties do not agree as to the extent of
such practices).116 In addition, throughout the negotiation
process, agencies should be prepared with sufficient evidence to support administrative or
judicial enforcement should voluntary negotiations fail.
An agency must balance its duty to permit informal
resolution of findings of noncompliance against its duty to effectuate, without undue
delay, the national policy prohibiting continued assistance to programs or activities
which discriminate. Efforts to obtain voluntary compliance should continue throughout the
process, but should not be allowed to become a device to avoid compliance.117
Once an area of noncompliance is identified, an agency is required to enforce Title IX.
1. Voluntary Compliance at the Pre-Award Stage
As is done post-award, agencies may obtain compliance
"by voluntary means" in the pre-award context by entering into an agreement with
the applicant that enjoins the applicant from taking specified actions, requires that
specified remedial actions be taken, and/or provides for other appropriate relief. The
terms of the agreement become effective once the assistance is granted, and typically are
attached as a special condition to the assistance agreement. Three issues arise by
exercise of the voluntary compliance authority at the pre-award stage: what is the
appropriate scope of special remedial conditions; what is the remedy if an applicant
refuses to agree to a special condition proposed by an agency; and what is the remedy if,
post-award, the recipient fails to comply with a special remedial condition of the
When voluntary compliance is sought at the pre-award
stage, agencies may exercise heightened flexibility in designing appropriate remedial
conditions, for two reasons. First, if the pre-award remedy does not fully resolve the
discrimination concern, agencies may have the opportunity to rectify this matter during
the life of the assistance grant. Second, since a pre-award investigation and remedial
efforts likely would require a deferral of the assistance award, it may be in the interest
of the applicant (as well as potentially the agency) that interim measures be agreed to
that allow the award to go forward while also addressing the discrimination concern. Thus,
a pre-award special condition may grant provisional relief, require that certain aspects
of the recipient's program be monitored, and/or require that the recipient provide
additional information relating to the discrimination allegations. Of course, the mere
fact that relief may be sought post-award does not necessarily mean that full relief,
using voluntary means or otherwise, should not be sought pre-award.
Agency authority to attach special conditions to
assistance agreements extends no further than the agencys authority to seek
voluntary compliance. Thus, if an applicant refuses to agree to a proposed special
remedial condition, the agency either would have to negotiate a different condition, award
the assistance without the condition, seek to obtain compliance "by any other means
authorized by law," or initiate administrative procedures to refuse to grant
assistance. However, an agency may not refuse to grant assistance based solely on an
applicants refusal to accept a special condition unless the agency is prepared to
make a finding of noncompliance and proceed to an administrative hearing. This is because
the applicant has a right to challenge, through an administrative hearing, a refusal to
grant assistance. See 42 U.S.C. § 2000d-1.
Whether an agency may immediately suspend payment based on
noncompliance with a previously imposed special remedial condition depends on the terms of
the condition. As a general matter, if a recipient violates the terms of a special
remedial condition, the noncompliance must be remedied in the same manner that any other
post-award noncompliance is addressed -- through voluntary efforts, by the government
filing suit, or by the agency suspending or terminating the assistance pursuant to the
statutory procedure. If, however, as part of the remedial condition the applicant agrees
that the agency immediately may suspend payment if noncompliance occurs, then that
contractual provision would likely supersede the statutory protection against instant fund
suspension that the recipient otherwise enjoys.
b. Use of Cautionary Language
If an agency has evidence at the time of the award which
does not rise to the level of an actual violation by an applicant, and thus does not
warrant refusal of a grant award, the agency may consider notifying the recipient in the
grant award letter that the agency has a civil rights concern. The statement could
acknowledge, where appropriate, the applicant's cooperation with an ongoing civil rights
investigation or its attempts to resolve the concern.118 By
including this language, the applicant is on notice that there may be a potential problem
and that the funding arm is aware of what the civil rights arm is doing. It also warns
that a failure to cooperate could lead to a denial of funds. The language also may
encourage the applicant to enter into voluntary compliance negotiations and engage in
alternative dispute resolution, in appropriate cases, to resolve the alleged
discrimination at issue without a formal finding or the completion of an investigation. A
major advantage of this approach is that it avoids the due process concerns raised when
deferral or special conditioning is utilized because, in this case, the funds are being
awarded, i.e., there is no "refusal to grant," which would trigger the
right to an administrative hearing.
c. Other Nonlitigation Alternatives
The Title VI Guidelines list four other approaches, short
of litigation or fund termination, that may be available when civil rights concerns are
discovered. The possibilities listed include:
(1) consulting with or seeking assistance from other
Federal agencies . . . having authority to enforce nondiscrimination requirements; (2)
consulting with or seeking assistance from State or local agencies having such authority;
(3) bypassing a recalcitrant central agency applicant in order to obtain assurances from
or to grant assistance to complying local agencies; and (4) bypassing all recalcitrant
non-Federal agencies and providing assistance directly to the complying ultimate
28 C.F.R. § 50.3 I.B.2. Agencies that enforce Title IX
are urged to consider all of these options, as appropriate.
B. "Any Other Means Authorized by Law:"
The Department of Justice's statutory authority to sue in
federal district court on behalf of an agency for violation of Title VI (and, likewise,
Title IX) is contained in the phrase "by any other means authorized by law." See
42 U.S.C. § 2000d-1; United States v. City and County of Denver, 927 F. Supp.
1396, 1400 (D. Colo. 1996); Ayers v. Allain, 674 F. Supp. 1523, 1551 n.6 (N.D.
Miss. 1987); Marion County, 625 F.2d at 612-13 & n.14. In addition, the
Department of Justice may pursue judicial enforcement through specific enforcement of
assurances, certifications of compliance, covenants attached to property, desegregation or
other plans submitted to the agency as conditions of assistance, or violations of other
provisions of the Civil Rights Act of 1964, other statutes, or the Constitution. See
Marion County, 625 F.2d at 612; 28 C.F.R. § 50.3 I.B.
Agency regulations interpreting this phrase provide for
several options including: 1) referral to the Department of Justice for proceedings, 2)
referrals to State agencies, and 3) referrals to local agencies. E.g., 29 C.F.R. §
31.8(a) (Labor); 34 C.F.R. § 100.8 (Education); and 45 C.F.R. § 80.8(a) (HHS):
[C]ompliance may be effected by . . . other means
authorized by law. Such other means may include, but are not limited to, (1) a reference
to the Department of Justice with a recommendation that appropriate proceedings be brought
to enforce any rights of the United States under any law of the United States (including
other titles of the Act), or any assurance or contractual undertaking and (2) any
applicable proceedings under State or local law.
In order to refer a matter to the Justice Department for
litigation, agency regulations require that the funding agency make a finding that a
violation exists and a determination that voluntary compliance cannot be achieved. The
recipient must be notified of its failure to comply and must be notified of the intended
agency action to effectuate compliance.119 Some agency
regulations require additional time after this notification to the recipient to continue
negotiation efforts to achieve voluntary compliance.120 It
should be noted that the funding agency must in fact formally initiate referral of the
matter to the Justice Department, because there is no automatic referral mechanism.
In United States v. Baylor Univ. Med. Ctr., 736
F.2d 1039 (5th Cir. 1984), the Fifth Circuit held that when a referral is made
to the Department of Justice, and suit for injunctive relief is filed, a court can order
termination of federal financial assistance as a remedy. However, the termination cannot
become effective until 30 days have passed. The court reasoned that the congressional
intent to allow a 30-day period when the administrative hearing route is followed (see
42 U.S.C. 2000d-1, which provides that the agency must file a report with Congress and 30
days must elapse before termination of the funds) evinces a congressional intent to
likewise permit a 30-day grace period before a courts order to terminate funds takes
C. Fund Suspension and Termination
Several procedural requirements must be satisfied before
an agency may deny or terminate federal funds to an applicant/recipient. A four step
process is involved:
1) the agency must notify the recipient that it is not in
compliance with the statute and that voluntary compliance cannot be achieved;
2) after an opportunity for a hearing on the record, the
"responsible Department official" must make an express finding of failure to
3) the head of the agency must approve the decision to
suspend or terminate funds; and
4) the head of the agency must file a report with the
House and Senate legislative committees having jurisdiction over the programs involved and
wait 30 days before terminating funds.121 The report must
provide the grounds for the decision to deny or terminate the funds to the recipient or
applicant. 42 U.S.C. § 2000d-1; 20 U.S.C. § 1682; See, e.g., 45 C.F.R. §
1. Fund Termination Hearings
As noted above, funds may not be terminated without
providing the recipient an opportunity for a formal hearing. See, e.g., 28
C.F.R. § 42.109(a). If the recipient waives this right, a decision will be issued by
the "responsible Department official" based on the record compiled by the
investigative agency. Hearings on terminations cannot be held less than 20 days after
receipt of notice of the violation. See, e.g., 45 C.F.R. § 80.9(a) (HHS).
Agencies have adopted the procedures of the Administrative
Procedures Act for administrative hearings. See, e.g., 28 C.F.R.
§ 42.109(d) (Justice); 45 C.F.R. § 80.9 (HHS). Technical rules of evidence do not
apply, although the hearing examiner may exclude evidence that is "irrelevant,
immaterial, or unduly repetitious." See, e.g., 28 C.F.R.
§ 42.109(d); 45 C.F.R. § 80.9(d)(2)(HHS). The hearing examiner may issue an
initial decision or a recommendation to the "responsible agency official." See,
e.g., 28 C.F.R. 42.110. The recipient may file exceptions to any initial decision.
In the absence of exceptions or review initiated by the "responsible department
official," the hearing examiner's decision will be the final decision. A final
decision that suspends or terminates funds, or imposes other sanctions, is subject to
review and approval by the agency head. Upon approval, an order shall be issued that
identifies the basis for noncompliance, and the action(s) that must be taken in order to
come into compliance. A recipient may request restoration of funds upon a showing of
compliance with the terms of the order, or if the recipient is otherwise able to show
compliance with Title VI or Title IX. See, e.g., 28 C.F.R. § 42.110;
45 C.F.R. § 80.10(g). The restoration of funds is subject to judicial review. 42 U.S.C.
§ 2000d-2; 20 U.S.C. § 1682. Moreover, as noted above, no funds may be terminated
until 30 days after the agency head files a written report on the matter with the House
and Senate committees having legislative jurisdiction over the program or activity
involved. 42 U.S.C. § 2000d-1; 20 U.S.C. § 1682.
2. Agency Fund Termination Limited to the
Particular Political Entity, or Part Thereof, that Discriminated
Congress specifically limited the effect of fund
termination by providing that it
...shall be limited to the particular political entity, or
part thereof, or other recipient as to whom such a finding has been made and, shall be
limited in its effect to the particular program, or part thereof, in which such
noncompliance has been so found, . . . .
42 U.S.C. § 2000d-1; 20 U.S.C. § 1682. This is called
the "pinpoint provision." As discussed below, the CRRA did not modify
interpretations of this provision, but affected only the interpretation of "program
or activity" for purposes of coverage of Title IX (and related statutes). See
S. Rep. No. 64 at 20, reprinted in 1988 U.S.C.C.A.N. at 22.
Congress' intent was to limit the adverse effects of fund
termination on innocent beneficiaries and to insure against the vindictive or punitive use
of the fund termination remedy. Finch, 414 F.2d at 1075.122
"The procedural limitations placed on the exercise of such power were designed to
insure that termination would be 'pinpoint(ed) . . . to the situation where discriminatory
practices prevail.'" Id.(quoting 1964 U.S.C.C.A.N. 2512).
The seminal case on this issue is Finch, 414 F.2d
1068. A Department of Health, Education, and Welfare (HEW) hearing officer had found that
the school district had made inadequate progress toward student and teacher desegregation
and that the district had sought to perpetuate the dual school system through its
construction program. Based on these findings, a final order was entered terminating
"any class of Federal financial assistance" to the district "arising under
any Act of Congress" administered by HEW, the National Science Foundation, and the
Department of the Interior. Id. at 1071.
On appeal, the Fifth Circuit vacated the termination
order, holding that it was in violation of the purpose and statutory scope of the agency's
power. The "programs" in issue were three education statutes, yet the HEW
officer had not made any specific findings as to whether there was discrimination in all
three programs, and/or if action in one program tainted, or caused discriminatory
treatment in, other programs. Id. at 1073-74, 79. The court paid considerable
attention to the congressional intent of the pinpoint provision: limiting the termination
power to "activities which are actually discriminatory or segregated" was
designed to protect the innocent beneficiaries of untainted programs. Id. at 1077.
The court further held that it was improper to construe Section 602 as placing the burden
on recipients to limit the effect of termination orders by proving that certain programs
are untainted by discrimination, rather than on an agency to establish the basis for
findings as to the scope of discrimination. Id.
As to the meaning of the term "program" in the
pinpoint proviso, the court concluded that the legislative history of Title VI evidenced a
congressional intent that the term refer not to generic categories of programs by a
recipient, but rather to specific programs of assistance, or specific statutes,
administered by the federal government. Id. at 1077-78.123
Further, even if "program" was meant to refer to generic categories of aid, the
parenthetical phrase, "or part thereof", must be given meaning. Thus, an
agency's fund termination order must be based on program-specific (i.e., grant
statute specific) findings of noncompliance. The Court reasoned that:
[T]he purpose of the Title VI [fund] cutoff is best
effectuated by separate consideration of the use or intended use of federal funds under
each grant statute. If the funds provided by the grant are administered in a
discriminatory manner, or if they support a program which is infected by a discriminatory
environment, then termination of such funds is proper. But there will also be cases from
time to time where a particular program, within a state, within a county, within a
district, even within a school (in short, within a "political entity or part
thereof"), is effectively insulated from otherwise unlawful activities. Congress did
not intend that such a program suffer for the sins of others. HEW was denied the right to
condemn programs by association. The statute prescribes a policy of disassociation of
programs in the fact finding process. Each must be considered on its own merits to
determine whether or not it is in compliance with the Act. In this way the Act is shielded
from a vindictive application. Schools and programs are not condemned enmasse or in gross,
with the good and the bad condemned together, but the termination power reaches only those
programs which would utilize federal money for unconstitutional ends.
Id. at 1078.124
The specificity required for fund termination was also
addressed by the Seventh Circuit in Gautreaux v. Romney, 457 F.2d 124 (7th Cir.
1972). In Gautreaux, the court reversed a district court's order approving federal
fund termination for a Housing and Urban Development (HUD) program where there were no
findings of discrimination in such program, and where such action was pursued in an effort
to pressure action to remedy the defendant's discriminatory conduct in a wholly separate
HUD program. Id. at 127-128. The district court had previously found that
defendants had violated fair housing laws yet intended to withhold Model Cities Program
funds, which primarily support education, job training, and day care programs on behalf of
low and moderate income families. Although a small portion of Model Cities money also
supported public housing, there was no allegation or finding that any Model Cities program
was operated in a discriminatory fashion. Id. at 126-27. Accordingly, the court of
appeals held that the district court violated Section 602 of Title VI and the
"mandate of" Finch, and abused its discretion in withholding the Model
Cities funds. Id. at 128.
It is equally critical to note that, notwithstanding the
need for an independent evaluation of each program, an agency (or reviewing court) must
examine not only whether the Federal funds are "administered in a discriminatory
manner, . . . [but also] if they support a program which is infected by a
discriminatory environment." Finch, 414 F.2d 1068, 1078-79 (emphasis added).
Not all programs operate in isolation. Thus,
the administrative agency seeking to cut off federal funds
must make findings of fact indicating either that a particular program is itself
administered in a discriminatory manner, or is so affected by discriminatory practices
elsewhere in the [overall operation, e.g., school system] that it thereby becomes
Id. at 1079; see North Haven, 456 U.S.
at 539 (approval of HEW Title IX regulations that adopt the Finch
"infection" standard.) This latter analysis is often referred to as the
"infection theory." Although Finch and Gautreaux were decided
prior to passage of the CRRA, it is important to recognize that while the CRRA defined the
meaning of "program or activity" for purposes of prohibited conduct, it did not
change the definition of such terms for purposes of fund termination for a violation of
Title IX. In particular, the CRRA left intact the "pinpoint" provision that
limits any fund termination to the "program, or part thereof, in which noncompliance
has been so found." 42 U.S.C. § 2000d-1.
VIII. Private Right of Action and Individual
Relief through Agency Action
The Supreme Court has established that individuals have an
implied private right of action under Title IX (and Title VI and Section 504). The Court
has stated that it has "no doubt that Congress...understood Title VI as authorizing
an implied private right of action for victims of illegal discrimination." See
Cannon v. University of Chicago, 441 U.S. 677 (1979) (holding that an individual
has a private right of action under Title IX). In addition, several courts of appeals have
held that plaintiffs have a private right of action to enforce the disparate impact
regulations implementing Section 602 of Title VI. See Sandoval v. Hagan, 7
F. Supp. 2d 1234, 1253 (M.D. Ala. 1998), affd, 197 F.3d 484 (11th
Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121
S. Ct. 28, 2000 WL 718812 (U.S. Sep 26, 2000)(NO. 99-1908); Powell v. Ridge, 189
F.3d 387 (3d Cir. 1999).
In Sandoval, the court found that a reading of Lau,
Guardians, and Alexander, in pari materia supported the finding of an
implied private cause of action under Section 602 of Title VI. 197 F.3d 484, 507 (11th
Cir. 1999). Likewise, in Powell v. Ridge, 189 F.3d 387, 397-400 (1999), the Third
Circuit Court of Appeals recognized an implied private right of action to enforce
regulations promulgated pursuant to Section 602 of Title VI. The Second Circuit, however,
declined to reach the issue of whether a private right of action may be brought under
regulations implementing Section 602 and let stand the lower courts ruling that a
private right of action is not available to plaintiffs bringing suit pursuant to Section
602. New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 72-73 (2d Cir.
2000) revd on other grounds, 50 F.Supp. 2d 250 (1999). The Supreme
Court will likely definitively decide this issue when it hears Sandoval. Because
Title IX was derived from Title VI, the Supreme Courts decision in this matter will
impact the judicial interpretation of Title IX.
Many circuits have ruled that individuals may not bring
suit against the federal government for failure to enforce Title IX (and Section 504 and
Title VI). See Jersey Heights Neighborhood Assn v. Glendening et al.,
174 F.3d 180 (4th Cir. 1999); Washington Legal Found. v. Alexander, 984
F.2d 483, (D.C. Cir. 1993); Womens Equity Action League v. Cavazos (WEAL
II), 906 F.2d 742 (D.C. Cir. 1990). In Jersey Heights, plaintiffs,
African-American landowners, filed suit against the U.S. Department of Transportation,
among others, claiming that it abdicated its duties under section 602 of Title VI to
eliminate discrimination in federally-funded programs by failing to terminate funds to
recipients who failed to comply with Title VI. The Fourth Circuit found that Title VI
provides two avenues of recourse to address discrimination by federal funding agencies:
private right of action against recipients of federal financial assistance and petition to
the federal funding agency to secure voluntary compliance by its recipients. After
reviewing the legislative history of Title VI, the court concluded that Congress did not
intend for aggrieved parties "to circumvent that very administrative scheme through
direct litigation against federal agencies." 174 F.3d at 191.
Similarly, the court in WEAL II, ruled that, absent
congressional authorization, individuals do not have a private right of action against the
federal government under Title VI, Title IX, or Section 504.125
906 F.2d at 752. Citing the Supreme Courts examination of the legislative history of
Title VI in Cannon, the court found that Congress did not intend for private suits
to be brought against the federal funding agencies. Id. at 748. The WEAL II
court further concluded that because individuals already have an adequate remedy through
private rights of action against the recipients of federal financial assistance,
individuals could not maintain a cause of action against the federal funding agency to
compel enforcement of Title VI under the Administrative Procedure Act, the Mandamus Act,
or the Constitution. Id. at 752. One possible exception to these court rulings
might be a situation where the federal funding agency makes a finding that a recipient is
in violation of Title VI but, nonetheless, refuses to enforce its own determination. See
Washington Legal Found. v. Alexander,126 984 F.2d at
The most common form of relief sought and obtained through
a private right of action is an injunction ordering a recipient to do something. See
Cannon, 441 U.S. 667. See also, United States v. Baylor Univ. Med.
Ctr., 736 F.2d at 1050, in which the Fifth Circuit held that a court can order
termination of federal financial assistance as a remedy. The Supreme Court also has held
that individuals may obtain monetary damages for claims of intentional discrimination
under Title IX. See Franklin, 503 U.S. at 75 n.8. As discussed below,
agencies are encouraged to identify and seek the full complement of relief for
complainants and identified victims, where appropriate, as part of voluntary settlements,
including, where appropriate, not only the obvious remedy of back pay for certain
employment discrimination cases, but also compensatory damages for violations in a
nonemployment context. Agencies are also asked to recommend the scope of relief to be
sought in referrals of matters to the Department of Justice for judicial enforcement.
A. Entitlement to Damages for Intentional
As noted above, in addition to agency enforcement
mechanisms, private individuals have an implied right of action under Title IX and damages
may be available in such lawsuits. In Cannon, 441 U.S. 677, a female applicant who
was denied admission to two medical schools brought a private lawsuit against the schools
alleging violations of Title IX. The Supreme Court in Cannon reasoned that since
Title IX had been patterned after Title VI and Title VI had previously been construed to
allow a private right of action, that Congress intended similar remedies to be available
under Title IX. The important point is that the court determined that exhaustion of
administrative remedies was not required under Title IX. The court recognized that
although the available administrative remedy (termination of funds) may be appropriate to
prevent the use of federal funds to support discriminatory practices, it may not be
appropriate as a remedy in cases in which an individual needs reinstatement or other
protection against discriminatory practices. "The award of individual relief to a
private litigant who has prosecuted her own suit is not only sensible but is also fully
consistent withand in some cases even necessary tothe orderly enforcement of
the statute. Id. at 706-707. In addition, the Supreme Court has ruled that monetary
damages are an available remedy in private actions brought to enforce Title IX for alleged
intentional violations. See Franklin, 503 U.S. at 72-75, Consolidated
Rail Corp. v. Darrone, 465 U.S. 624 at 630-31 (1984).
Franklin contains a detailed discussion on the
merits of allowing monetary damages for intentional violations of Title IX. Id. at
71-76. The Court placed great reliance on the "longstanding rule" that where a
federal statute provides (expressly or impliedly) for a right to bring suit, federal
courts "presume the availability of all appropriate remedies unless Congress has
expressly indicated otherwise." Id. at 66.127
The Court found no congressional intent to abandon this presumption in the enforcement of
Title IX.128 Accordingly, the Court concluded that private
individuals may obtain damages in appropriate cases.
Throughout its opinion, the Franklin Court broadly
referred to the relief being sanctioned as "monetary damages." Although the
Court did not define this term, it specifically rejected limiting Title IX plaintiffs to
monetary relief that is equitable in nature, such as backpay. See Id. at
B. Availability of Monetary Damages in Other
In Franklin, the Supreme Court was not called upon
to rule whether monetary damages are available where other types of discrimination are
proven. Nonetheless, the Court noted that unintentional discrimination may present a
different legal question, and damages may not be available. Id. at 74.129 Awarding damages may be particularly problematic where the
violation rests on a "disparate impact" theory of discrimination. See Guardians,
463 U.S. at 595-603 (Opinions of White, J.).
C. Recommendations for Agency Action
In incorporating the damages remedy into agency compliance
activities, agencies will need to decide when damages should be sought as part of a
voluntary compliance agreement and, if damages, are requested, the amount of emphasis to
be placed on the damages request in compliance negotiations. Agencies will want to ensure
that the damages remedy is implemented in a manner consistent with other enforcement goals
and policies, in a manner consistent among compliance agreements, and in a manner that
protects the flexibility of the voluntary compliance process. To effectuate these goals,
agencies may wish to draft written guidelines, and establish special supervisory
procedures and internal reporting requirements.
There are several considerations that may be relevant in
deciding how to exercise administrative discretion in applying the damages remedy in
particular cases. One factor may be the degree of seriousness of the violation. A second
factor may be whether the injury is substantial. A third factor may be whether the injury
is pecuniary in nature. Since pecuniary losses represent a concrete injury and are
relatively straightforward to measure, they may represent a type of loss for which damages
almost always should be sought. Injuries involving "emotional distress" also
should be addressed, but may require closer analysis. A fourth factor may be whether the
discrimination victim has a current, ongoing relationship with the recipient that involves
regular interactions between the two. If such a relationship exists and prospective relief
is obtained that benefits the victim, that may weigh against providing compensation for
any nonpecuniary injury that is relatively slight.
Another issue is how agencies should respond to requests
by recipients that discrimination victims sign a liability release in order to obtain a
damages award through a compliance agreement. As a practical matter, agencies likely will
need to be open to including such a release in any agreement that provides for damages, if
requested by the recipient.
D. Lack of States Eleventh Amendment
Immunity Under Title IX
The Eleventh Amendment bars a State from being sued by a
citizen of the State in federal court.130 Since 1890, the
Supreme Court has consistently held that this Amendment protects a State from being sued
in federal court without the States consent. See Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 54 n.7 (1996)(cases cited). However, federal courts have
jurisdiction over a State if the State has either waived its immunity or Congress has
abrogated unequivocally a States immunity pursuant to valid powers. See id.
at 68. Congress has unequivocally done so with respect to Title IX and related statutes.
In 1986, Congress enacted 42 U.S.C. 2000d-7 as part of the
Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, tit. X, §1003, 100 State. 1845
(1986), to abrogate States immunity from suit for violations of Title IX, Section
504, Title VI, the Age Discrimination Act, and similar nondiscrimination statutes. See
Lane v. Pena, 518 U.S. 187, 198 (1996) (court states in dicta that Congress
intended to abrogate the States Eleventh Amendment immunity for purposes of Title
IX). Section 2000d-7 states:
(1) A state shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit in Federal court for a
violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C.A. §794, title IX of
the Education Amendments of 1972 [20 U.S.C.A. §1681 et seq.], the Age Discrimination Act
of 1975 [42 U.S.C.A. §6101 et seq.], title VI of the Civil Rights Act of 1964 [42
U.S.C.A. §2000d et seq.], or the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute
referred to in paragraph (1), remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such remedies are available for such
a violation in the suit against any public or private entity other than a State.
The Eleventh Amendment is no bar to actions brought by
private plaintiffs under Title IX to remedy discrimination on the basis of sex. It is the
position of the Department of Justice that Section 2000d-7 is an unambiguous abrogation
which gives States express notice that a condition for receiving federal funds is the
requirement that they consent to suit in federal court for alleged violations of Title IX
and the other statutes enumerated. 42 U.S.C. 2000d-7 contains an express statutory
abrogation of Eleventh Amendment immunity for Title IX suits. This abrogation is a valid
exercise of Congress power under the Spending Clause to impose unambiguous
conditions on States receiving federal funds. By enacting Section 2000d-7, Congress put
States on notice that accepting federal funds waived their Eleventh Amendment immunity to
discrimination suits under Title IX. In addition, Section 2000d-7 is a valid exercise of
Congress power under Section 5 of the Fourteenth Amendment, which authorizes
Congress to enact "appropriate legislation" to "enforce" the Equal
Protection Clause. Under either power, the abrogation for Title IX suits is
IX. Department of Justice Role Under Title IX
The Department of Justice has two roles to play in Title
IX enforcement: coordination of federal agency implementation and enforcement, and legal
representation of the United States and the funding agency. Pursuant to Exec. Order No.
12250, the Attorney General shall "coordinate the implementation and enforcement by
Executive agencies" of Title VI, Title IX, Section 504 and "any other provision
of federal statutory law which provides, in whole or in part, that no person in the United
States shall, on the ground of race, color, national origin, handicap, religion, or sex,
be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity receiving federal financial assistance."
Exec. Order No. 12250 §1-201. Except for approval of agency regulations implementing
Title IX and Title VI and the issuance of coordinating regulations, all other
responsibilities have been delegated to the Assistant Attorney General for Civil Rights.
While each federal agency extending federal financial assistance has primary
responsibility for implementing Title IX with respect to its recipients, overall
coordination in identifying legal and operational standards, and ensuring consistent
application and enforcement, rests with the Civil Rights Division of the Department of
Justice. In interpreting Title IX, the Department will look closely at, and coordinate and
consult with, the Department of Education, the agency with the most Title IX experience
and the agency with the regulations that served as the basis for the Title IX common rule.
As part of the Department of Justices Executive
Order 12250 coordinating authority, the Civil Rights Division coordinated the drafting and
publication of a common rule providing for the enforcement of Title IX by several
participating agencies.131 On October 29, 1999, the
participating agencies published a Notice of Proposed Rulemaking to implement Title IX.132 After receiving and reviewing comments, the agencies
published the final Title IX rule on August 30, 2000.133
The Department of Justices second role is as the
federal governments litigator. As discussed in Chapter VII, the Department of
Justice, on behalf of Executive agencies, may seek injunctive relief, specific
performance, or other remedies when agencies have referred determinations of noncompliance
by recipients to the Department for judicial enforcement. Such litigation will be assigned
to the Departments Civil Rights Division. In addition, the Department is responsible
for representing agency officials should they be named in private litigation involving
1 In response to the Supreme
Courts decision in Grove City College v. Bell, 465 U.S. 555, 571-72 (1984)
that Title IX and other similar nondiscrimination statutes were program-specific and only
applied to the particular portion of a recipients program that actually received
federal financial assistance, Congress passed the Civil Rights Restoration Act of 1987
which clarified the definition of "program or activity" to cover all the
operations of an entity receiving federal financial assistance. For example, if a State
prison receives federal aid, all of the operations of the state Department of Corrections
would be covered by Title VI and Section 504 and all of its education and training
programs and activities would be covered by Title IX. 20 U.S.C. 1687.
2 As discussed later in the Manual,
however, there are Constitutional issues presented as well.
3 See OCR Policy Determination,
43 Fed. Reg. 84 (1978), for a discussion of when this exception allows single-sex classes
on grounds of religious belief.
4 In implementing this provision, the
Department of Education requires a single-sex school for both sexes once it is provided
for one sex. The Department of Education is currently reviewing provisions in its current
Title IX regulations regarding single-sex programs to determine whether revised standards
or further guidance on this issue may be appropriate.
5 See Chapter V(E) for a detailed
discussion of this important grievance procedure requirement.
6 As enacted in Title IX, this provision
provides: (b) Nothing contained in subsection (a) of this section shall be interpreted to
require any educational institutional to grant preferential or disparate treatment to
members of one sex on account of an imbalance which may exist with respect to the total
number or percentage of persons of that sex participating in or receiving the benefits of
any federally supported program or activity, in comparison with the total number or
percentage of persons of that sex in any community, State, section, or other areas:
Provided, that this subsection shall not be construed to prevent the consideration in any
hearing or proceeding under this title of statistical evidence tending to show that such
an imbalance exists with respect to the participation in, or receipt of the benefits of,
any such program or activity by the members of one sex. 20 U.S.C. §1681(b).
7 The Javitz Amendment was a compromise
bill passed after congress rejected the Tower Amendment, an earlier proposal to either
completely exclude intercollegiate athletics from Title IX or to exclude
revenue-generating athletic programs. Pub. L. 93- 380, 88 Stat. 612 (1974). The HEW
regulations are codified at 34 C.F.R. Part 106.
8 The Court in Grove City College
held that federal student financial assistance provided to a college established Title IX
jurisdiction only over the colleges financial aid program, not the entire college.
This interpretation significantly narrowed the application of the prohibitions of Title IX
and its counterparts, Title VI, the Age Discrimination Act of 1975, and Section 504.
9 See 7 C.F.R. Part 15a published
on April 11, 1979; and 10 C.F.R. part 1040 published on June 13, 1980, respectively.
10 The participating agencies include:
the Nuclear Regulatory Commission; Small Business Administration; National Aeronautics and
Space Administration; Department of Commerce; Tennessee Valley Authority; Department of
State; Agency for International Development; Department of Housing and Urban Development;
Department of Justice; Department of Labor; Department of the Treasury; Department of
Defense; National Archives and Records Administration; Department of Veterans Affairs;
Environmental Protection Agency; General Services Administration; Department of the
Interior; Federal Emergency Management Agency; National Science Foundation; Corporation
for National and Community Service; and, the Department of Transportation. It should be
noted that three agencies that participated in the Notice of Proposed Rulemaking
the National Endowment for the Arts, the National Endowment for the Humanities, and the
Institute of Museum and Library Services are promulgating separate Title IX
regulations, rather than participating in the final Title IX common rule.
11 See 20 U.S.C. § 1681(a).
12 In Delmonte, the plaintiff
alleged that he was demoted in 1990 on a prohibited basis in violation of Section 504. 877
F. Supp. at 1564. The court held that the defendant received federal financial assistance
through its participation in at least 10 federal training programs (consisting of less
than one to three-day programs) both before and after the demotion, over a course of
approximately twelve years. Id. at 1565-66. The court does not clearly address
whether its conclusion was based on training in the aggregate, or if a single training
session (with the required contractual assurances of compliance with nondiscrimination),
is sufficient. Id. at 1566.
13 Under the Title IX common rule, each
federal agency that awards financial assistance is required to publish in the Federal
Register a notice of the programs covered by Title IX. 65 Fed. Reg. 52874 § .600
14 It is often difficult to separate
discussions of closely linked concepts, such as what is a recipient and what is federal
financial assistance. Accordingly, the concept of "direct" and
"indirect" are discussed both in terms of "direct/indirect recipient"
and "directly receive/indirectly receive federal financial assistance."
15 "With the benefit of clear
statutory language, powerful evidence of Congress' intent, and a longstanding and coherent
administrative construction of the phrase 'receiving federal financial assistance,' we
have little trouble concluding that Title IX coverage is not foreclosed because federal
funds are granted to Grove City's students rather than directly to one of the College's
educational programs." Id. at 569.
16 As stated by then-Deputy Attorney
General Nicholas deB. Katzenbach to Hon. Emanuel Celler, Chairman, Committee on the
Judiciary, House of Representatives (December 2, 1963):
Activities wholly carried out by the United States with Federal funds, such as river
and harbor improvements or other public works, defense installations, veteran's hospitals,
mail service, etc. are not included in the list [of federally assisted programs]. Such
activities, being wholly owned by, and operated by or for, the United States, cannot
fairly be described as receiving Federal 'assistance.' While they may result in general
economic benefit to neighboring communities, such benefit is not considered to be
financial assistance to a program or activity within the meaning of Title VI.
110 Cong. Rec. 13380 (1964).
17 The court in Bob Jones Univ.
distinguished pensions from payments to veterans for educational purposes since the latter
is a program with a requirement or condition that the individual participate in a program
or activity. 396 F. Supp. at 602 n.16. For a more detailed discussion of when assistance
to a beneficiary may constitute indirect assistance to a recipient, see discussion
of indirect recipient in section (B)(3) of this Chapter.
18 An ultimate beneficiary usually does
not receive a "distribution" of the federal money. Rather, he or she enjoys the
benefits of enrollment in the program.
19 Note that the written assurance may
serve as the basis for a breach of contract action.
20It should be noted that the
remaining text of this section distinguishes various scenarios for recipients and
beneficiaries. While captions are used to separate different circumstances, courts do not
uniformly use the same phrase to explain the same funding pattern. Thus, a court may refer
to an "indirect recipient" when the situation more closely fits the paradigm of
"primary recipient/subrecipient," as described in Section E of this chapter.
21 While the court's analysis in Grove
City of the scope of "program or activity" was reversed by the Civil Rights
Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), the Court's discussion
of other principles, including direct and indirect recipients, remains undisturbed.
22 The Court in Smith did not
address the Departments argument that "when a recipient cedes controlling
authority over a federally funded program to another entity, the controlling entity is
covered by Title IX regardless whether it is itself a recipient. Id. at 469-471.
23 One district court has held that
because the transfer of property in issue occurred before the effective date of Section
504 HUD regulations, the purchaser of the land was not considered a transferee with
obligations under Section 504 but, instead, was merely a beneficiary of federal financial
assistance with no obligations to comply with Section 504. Independent Hous. Servs. of
San Francisco v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1341 (N.D. Ca. 1993).
However, it should be noted that the standard Office of Management and Budget assurance
form used by most federal agencies includes language that requires recipients who enter
into contracts to ensure that contractors comply with various antidiscrimination statutes,
including Title IX. In addition, the language binding subsequent transferees, etc. has
been in most Title VI regulations for over 30 years. Thus, recipients are aware of the
fact that nondiscrimination statutes such as Title VI and Title IX, which are triggered by
receipt of federal financial assistance, are binding on transferees, etc. Since Title IX
is based on Title VI, the Title VI provisions on coverage of transferees are applicable to
Title IX. Moreover, although most agencies Title IX regulations did not become
effective until August 30, 2000, Title IX itself has been in effect since 1972. Thus, it
is the Department of Justices view that Title IX statutory obligations are binding
on all recipients, successors, transferees, assignees, and contractors who receive federal
financial assistance, both before and after the date of the Title IX regulations, despite
the one district court case cited above.
24The Graves court described
the local agency as an "indirect" recipient since the federal money flowed
"through another recipient," and compared this situation to Grove City College's
indirect receipt of BEOG funds from students. Id. at 433. Given that the funding
was distributed to a State agency and a portion allocated to a local entity, the more
accurate description is that of primary/subrecipient.
25 It should be remembered that federal
assistance may include, not only, the payment of money to an ultimate beneficiary, but
also the provision of subsidized services, e.g. job training, elementary and secondary
education, prison job skills programs, etc.
26 Title IX broadly defines the term
"educational institution" to include "any public or private preschool,
elementary, or secondary school, or any institution of vocational, professional, or higher
education..." 20 U.S.C. § 1681.
27Throughout the remainder of this
section, discussion of what constitutes a covered "education program or
activity" and related references are intended to apply only to Title IXs scope
of coverage outside traditional educational institutions.
28It should be noted that the 1984
House Report regarding an earlier version of the CRRA, which defined "recipient"
rather than "program or activity," also described coverage as limited to
"education." This description is instructive since sponsors of the CRRA, as
eventually enacted, later noted that, despite the new language, coverage would operate in
the same manner envisioned for the prior bill. Thus, it is worth noting that the 1984
House Report described Title IXs scope of coverage as follows:
An education recipient has a different scope of coverage
depending upon whether the entity receiving federal funds has education as a primary
purpose. If the recipient does have education as its primary purpose, such as colleges,
universities, school districts, training institutes, and academies, then the federal funds
result in institution-wide coverage. If the entity receiving federal funds does not have
education as a primary purpose yet engages in educational functions, then all of its
education-related functions are covered. For this entity, its other functions are not
necessarily covered unless there is a link between the education function and the
H.R. Rep. No. 98-829, at 27.
29Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 286 (1998); Grove City College v. Bell , 465 U.S. 555, 566 (1984);
Cannon v. University of Chicago , 441 U.S. 677, 684-85 (1979); Cohen v. Brown Univ., 101 F.3d 155,
170 (1st Cir. 1996), cert denied, 520 U.S. 1186 (1997); Yusuf v. Vassar College,
35 F.3d 709, 714 (2 nd Cir. 1994). Indeed, one of the earlier legislative proposals of what
ultimately became Title IX sought to amend Title VI itself by adding sex as one of its
prohibited bases of discrimination. See North Haven , 456 U.S. at 546 (Powell,
30However, as previously discussed,
Title IXs coverage is limited to education programs and activities.
31U.S. Const., Art. I, §8, cl. 1. See
Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640 (1999); Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998); Smith v. Metropolitan Sch.
Dist., Perry Township, 128 F.3d 1014, 1028 (7th Cir. 1997), cert. denied, 524 U.S. 951
32 Pederson v. Louisiana State Univ.,
201 F.3d 388, 406 (5thCir. 2000), affd in part, revd in
part, 213 F.3d 858 (5 th Cir. 2000). For a
discussion of the scope of Congresss independent enforcement authority under Section
5 of the Fourteenth Amendment, see United States v. Morrison , __ U.S. at __, 120 S.Ct. 1749, 1755-59; Kimel
v. Florida Bd. of Regents, 528 U.S. 62, 80, 120 S.Ct. 631, 644 (2000).
33Disparate treatment is also referred
to as "intentional," "purposeful," or "invidious"
34In many areas Title VII case law is
also looked to for guidance in how to establish a Title IX violation.
35Elston v. Talladega County Bd. of
Educ., 997 F.2d 1394, 1406 (11 th Cir. 1993), rehearing denied, 7 F.3d 242 (11 th Cir. 1993), cert. denied,
502 U.S. 910 (1991), (quoting Williams v. City of Dothan, 745 F.2d 1406,
1414 (11 th Cir.
36 See, e.g., Mississippi
Univ. for Women v. Hogan, 458 U.S. 718, 726-730 (1982) (maintenance of single sex
nursing school as compensation for assumed prior discrimination rejected as perpetuating
sex stereotypes); United States v. Virginia, 518 U.S. 515, 534-46 (1996) (benign
justification in defense of a categorical exclusion does not block inquiries into actual
purposes of and factual support for the exclusion). It should be noted that both of these
cases are Constitutional cases, not Title IX cases.
37 See Village of Arlington
Heights v. Metro. Hous. Redevelopment Corp., 429 U.S. 252, 266-68 (1977)(evaluation of
intentional discrimination claim under the Fourteenth Amendment); Elston, 997 F.2d
38 See Baldwin v. University
of Texas Med. Branch at Galveston, 945 F. Supp. 1022, 1031 (S.D. Tex. 1996), affd,
122 F.3d 1066 (5 th Cir.
1997); Brantley v. Independent Sch. Dist. No. 625, St. Paul Pub. Sch., 936 F. Supp.
649, 658 n.17 (D. Minn. 1996).
39 It is important to remember that the
"prima facie case method established in McDonnell Douglas was never
intended to be rigid, mechanized or ritualistic. Rather, it is merely a sensible, orderly
way to evaluate the evidence in light of common experience as it bears on the critical
question of discrimination." United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715 (1982) (quoting Furnco Construction Corp. v. Waters,
438 U.S. 567, 577 (1978)).
For example, it should be noted that the McDonnell Douglas prima facie framework for
Title VII claims does not require that the applicant selected for the position be of a
different race, color, or national origin than the complainant. Under McDonnell Douglas,
the complainant only needs to show that "after his rejection, the position remained
open and the employer continued to seek applicants from persons of complainants
qualifications." McDonnell Douglas, 411 U.S. at 802. Several courts dealing
with this issue in the Title VII context have noted that the fact that the applicant
selected in place of the complainant is of a different race "may help to raise an
inference of discrimination," but it is not necessarily dispositive on the question
of discriminatory intent. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5 th Cir. 2000)(internal citations
omitted); see also Pivirotto v. Innovative Systems, Inc. , 191 F.3d 344, 354 (3 rd Cir. 1999); Jackson v.
Richards Med. Co., 961 F.2d 575, 587 n.12 (6 th
40 See International Bhd. of
Teamsters v. United States, 431 U.S. 324, 336 (1977); McDonnell Douglas, 411
U.S. at 802.
41 See Reeves v. Sanderson
Plumbing Prod., Inc., __ U.S. __, 120 S. Ct. 2097, 2108 (2000) (finder of fact may
infer the ultimate fact of discrimination from the falsity of an employers
explanation); St. Marys Honor Ct. v. Hicks, 509 U.S. 502, 514 (1993) (burden
on complainant to establish that challenged conduct "was the product of unlawful
42 International Bhd. of Teamsters,
431 U.S. at 336.
44 Id. at 362.
45 See City of Los Angeles,
Dept of Water and Power v. Manhart, 435 U.S. 702 (1978).
46 Disparate impact is also referred to
as "disproportionate impact" or "adverse impact." Regardless of the
descriptive phrase used, all refer to the process of evaluating facially neutral policies
or practices that in fact result in the burdens of a policy or practice being borne more
heavily by members of one sex(or race or national origin) than another.
47 Cohen v. Brown Univ., 101
F.3d at 172.
48 Guardians Assn v. Civil
Serv. Commn, 463 U.S. 582, 584 (1983) (Title VI); Alexander v. Choate , 469 U.S. 287, 293 (1985)
(Title VI); Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1253 (M.D. Ala. 1998), affd,
197 F.3d 484 (11 th Cir.
1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S. Ct. 28,
2000 WL 718812 (U.S. Sep 26, 2000)(NO. 99-1908); Haffer v. Temple Univ., 678 F.
Supp. 517, 539 (E.D. Pa. 1987)(Title IX).
49 New York Urban League v. New York
, 71 F.3d
1031, 1036-40 (2 nd Cir.
1995) (incorporating the Title VII disparate impact analysis as part of an identical
analysis under Title VI).
50 Guardians Assn v. Civil
Serv. Commn, 463 U.S. 582, 584 (1983) (Title VI); Alexander v. Choate , 469 U.S. 287, 293 (1985)
51 See Larry P. v. Riles,
793 F.2d 969, 982 (9 th Cir. 1984); Elston, 997 F.2d at 1407 (citing Georgia
State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11 th Cir. 1985)); Sharif v. New
York State Educ. Dept, 709 F. Supp. 345, 361-62 (S.D.N.Y. 1989).
52 New York City Entl Justice
Alliance (NYCEJA) v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000).
53 New York Urban League v. New York
, 71 F.3d at
54 Georgia State Conference, 775
F.2d at 1417.
55 Board of Educ. v. Harris, 444
U.S. 130 (1979) ("educational necessity" analogous to "business
56 Sandoval v. Hagan, 7 F. Supp.
2d 1234, 1253 (M.D. Ala. 1998), affd, 197 F.3d 484 (11 th Cir. 1999), cert. granted
sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S. Ct. 28, 2000 WL 718812
(U.S. Sep 26, 2000)(NO. 99-1908) quoting Elston, 997 F.2d at 1413).
57 Georgia State Conference, 775
F.2d. at 1418. See, e.g., Elston, 997 F.2d at 1412-13.
58 See generally , Albemarle Paper Co. v.
Moody, 422 U.S. 405, 425 (1975)
59 Sharif, 709 F. Supp. at 364.
60 Larry P. at 983.
61 Sandoval, 7 F. Supp. at 1312.
See Meek v. Martinez, 724 F. Supp. 888 (S.D. Fla. 1987) (Floridas use
of funding formula in distributing aid resulted in a substantially adverse disparate
impact on minorities and the elderly). See also Campaign for Fiscal Equity, Inc.
v. New York, 86 N.Y.2d 307, 655 N.E.2d 1178 (N.Y. Ct. App. Jun 15, 1995) (Prima facie
case established where allocation of educational aid had a racially disparate impact); Sharif
v. New York State Educ. Dept, 709 F. Supp. at 362 (Prima facie case established
by statistical evidence and expert testimony showing that under-representation of women
among scholarship winners not likely due to random distribution).
62 See Elston, 997 F.2d
63 71 F.3d at 1039.
64 922 F.Supp 544 (M.D. Ala. 1996).
65 Id. at 551.
66 Elston, 997 F.2d at 1407; see
also Young by and through Young, 922 F.Supp at 551 (goals of addressing illegal recruiting and improving
quality of schools were substantial legitimate justifications for policy imposing loss of
athletic eligibility after interschool transfer, and plaintiffs failed to demonstrate
existence of an equally effective alternative practice).
67 See, e.g., Preston
v. Com. Of Va. ex rel. New River Community College, 31 F.3d 203, 205-06 n. 2 (4 th Cir. 1994); Nelson v.
University of Maine System, 923 F.Supp 275, 279-80 (D.Me. 1996); Clay v. Board of
Trustees of Neosho Community College, 905 F.Supp. 1488, 1495 (D.Kan. 1995).
68 See, e.g., 28 C.F.R.
§42.107(e) (Department of Justice Title VI Regulation).
69 See, e.g., Benson
v. Little Rock Hilton Inn, 742 F.2d 414, 416-17 (8 th Cir. 1984) (discussing remedial purpose of
retaliation complaints and irrelevance of merits of underlying discrimination claim).
70 One court in a private suit has read
Title IX as prohibiting retaliation only for the exercise of personal rights. Holt v.
Lewis, 955 F.Supp. 1385, 1389 (N.D.Ala. 1995), affd, 109 F.3d 771 (11 th Cir. 1997), cert. denied,
522 U.S. 817, 118 S.Ct. 67. But see, e.g., Trafficante v. Metropolitan
Life Ins., 409 U.S. 205, 211 (1972) (white residence of apartment complex entitled to
bring fair housing case based on discrimination against black applicants); Austen v.
Hawaii, 759 F.Supp. 612, 627-28 (D.Ha. 1991), affd, 967 F.2d 583 (1991)
(Title VII claim stated where evidence showed retaliation due to plaintiffs advocacy
of womens issues); Maldonado v. METRA, 743 F.Supp. 563, 568 (N.D.Ill. 1990)
(Title VII prima facie case stated where plaintiff had complained about discrimination
against minorities generally).
71 See North Haven v. Bell,
456 U.S. at 521, quoting United States v. Price, 383 U.S. 787, 801 (1966)
(Title IX entitled to "a sweep as broad as its language.").
72 See, e.g., Pettway
v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5 th Cir. 1969).
73 See David v. Halpern,
768 F.Supp. 968, 985 (E.D.N.Y. 1991).
74 This is not to say that the
employment practices of a recipient of non-employment related assistance will always be
beyond the reach of Title VI. Where such employment discrimination so infects the tone and
tenor of a program or activity that it subjects beneficiaries to an oppressive
discriminatory atmosphere, enforcement action under Title VI is authorized. See, e.g.,
28 C.F.R. §42.104(c)(2) (DOJ Title VI Regulations); 15 C.F.R. §8.4(c)(2) (Commerce Title
VI Regulations); 34 C.F.R. §100.3(c)(2) (Education Title VI Regulations). See also,
Ahern v. Board of Educ. of the City of Chicago, 133 F.3d 975 (7 th Cir. 1998); United States
v. Jefferson County Bd. of Educ., 372 F.2d 836, 883 (5 th Cir. 1966), cert. denied, 389 U.S. 840
75 See, e.g., North
Haven v. Bell,456 U.S. 515, 537 (1982).
76 Nondiscrimination on the Basis of
Sex in Education Programs or Activities Receiving Federal Financial Assistance
(hereinafter referred to as "the Title IX common rule"), 65 Fed. Reg. 52858
(August 30, 2000), § _.500(a).
77 Johnson v. Baptist Med. Ctr.,
97 F.3d 1070, 1072 (8 th Cir. 1996), rehearing denied, 114 F.3d 189 (8 th Cir. 1997). See also Kinman
v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8 th
Cir. 1996); Brine v. University of Iowa, 90 F.3d
271, 276 (8 th Cir.
1996), cert. denied, 519 U.S. 1149, 117 S.Ct. 1082; Doe v. Oyster River Co-Op
Sch. Dist., 992 F.Supp. 467, 474 (D.N.H. 1997) (reference to Title VII provides
helpful guidance). But see Chance v. Rice Univ., 984 F.2d 151 (5 th Cir. 1993), rehearing
denied, 989 F.2d 179 (5 TH Cir. 1993) (claim of discrimination properly reviewed under the
intentional discrimination standard of Title VI rather than the standards under Title
78 29 C.F.R. §1691.4. This provision
is part of general regulations adopted jointly by the Department of Justice and the Equal
Employment Opportunity Commission governing the handling of employment discrimination
complaints received by federal funding agencies. Those general regulations are discussed
more fully in subsection B.6 of this Chapter.
79 It is important to note, however,
that Title VII case law does not apply with equal symmetry in the area of harassment
claims. For a discussion of Title IX harassment claims, see section D of this Chapter.
80 See, e.g., Henschke
v. New York Hosp.-Cornell Med. Ctr., 821 F. Supp. 166, 172-73 (S.D.N.Y. 1993).
81 See, e.g., Storey
v. Board of Regents of the Univ. of Wisconsin, 604 F. Supp. 1200, 1205 (W.D. Wis.
82 See "Procedures for
Complaints of Employment Discrimination Filed Against Recipients of Federal financial
assistance." 28 C.F.R. §§ 42.601-42.613 (DOJ); 29 C.F.R. §§ 1691.1 - 1691.13
83 See Title IX common rule §
.500(a)(2) and (3); § .505.
84 See Title IX common rule,
Subpart E, §§___.500-___.550.
85 See, e.g., Automobile
Workers v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).
86 28 C.F.R §§42.601-42.613 (DOJ); 29
C.F.R. §§1691.1- 1691.13 (EEOC)(hereinafter cited as "Joint Complaint
Procedures"). The Joint Complaint Procedures do not apply to complaints under
Executive Order 11246 (which is enforced by the Office of Federal Contract Compliance
Programs), the Omnibus Crime Control and Safe Streets Act, as amended, or the Juvenile
Justice and Delinquency Prevention Act (which are enforced by the Departments Office
of Justice Programs). Id. at §42.601 and §1691.1.
87 48 Fed.Reg. 3570(1983).
88 28 C.F.R. 42.605(a).
89 Id. at 42.605(b).
90 The phrase "special
circumstances" is used throughout the Joint Complaint Procedures. In using this
phrase, the Joint Complaint Procedures seek to recognize the need for administrative
flexibility in processing complaints. For example, an agency might conclude that special
circumstances argue in favor of retaining a complaint that ordinarily should be referred
to the EEOC where the complaint was related to or in furtherance of a pending
investigation of the same recipient.
91 In addition to Title IX, there are
also Constitutional issues involved as discussed earlier in this Manual.
92 Recipients must ensure that
equitable opportunities are provided for the receipt of scholarships by both the
mens and womens athletic programs. See "Guidance on the Awarding
of Athletic Financial Assistance," (OCR Letter to Bowling Green, July 23, 1998).
93 The following agencies also have
Title IX regulations with similar requirements: The Department of Agriculture, 7 C.F.R.
part 15a; the Department of Energy, 10 C.F.R part 1040; and the Department of Health and
Human Services, 45 C.F.R. part 86.
94 The Department of Education
regulations differ slightly by requiring an assurance each time an application is made. See
34 C.F.R. §106.4(a).
95 This does not apply to recipients
that are exempted from the admissions provisions in Subpart C of the Title IX regulations
e.g., private undergraduate institutions and military schools. 34 C.F.R.
96 The Department of Education
regulations require that the notice also be published in local newspapers. 34 C.F.R.
§106.9(2)(i). The Title IX common rule does not include this requirement.
97 This document was issued pursuant to
the Assistant Attorney General authority under Executive Order 12250. This Order charges
the Attorney General with with the responsibility for ensuring for the consistent and
effective implementation of various laws prohibiting discriminatory practices in federal
programs and programs receiving federal financial assistance, including Title IX among
other statutes. The Attorney Generals authority under the Executive Order, except
for the approval of regulations, was delegated to the Assistant Attorney General for Civil
Rights. 28 C.F.R. §0.51.
98 See Chapter VI, Section A for
a detailed discussion of assurances of compliance with Title IX.
99 The Title VI Guidelines distinguish
between the applicability of an agency's deferral authority for initial or one-time awards
versus continuing, periodic awards. The Title VI Guidelines state that agencies have
deferral authority with regard to "applications for one-time or noncontinuing
assistance and initial applications for new or existing programs of continuing
assistance." 28 C.F.R. § 50.3 II.A. In contrast, if an application for funds has
been approved and a recipient is entitled to "future, periodic payments," or if
"assistance is given without formal application pursuant to statutory direction or
authorization," distribution of funds may not be deferred or withheld unless all the
Title VI statutory procedures for a termination of funds are followed. Id. II.B.
The Title VI Guidelines do not specify what may constitute "abnormal" or
exceptional circumstances to warrant deferral of a continuing grant. In these renewal or
continuation situations, the Title VI Guidelines indicate that an assurance of compliance
or a nondiscrimination plan may be required prior to continuing the payout of funds.
100 Subsequent to the adoption of
Title VI, Congress on at least two occasions has refused to prohibit agencies from
exercising pre-award deferral authority. In 1966, in considering the Elementary and
Secondary Education Amendments of 1966, the House adopted a provision that effectively
would have prohibited pre-award deferrals of certain education grants by the Department of
Health, Education, and Welfare. The amendment, offered by Representative Fountain,
provided that no deferral could occur unless and until there was a formal finding, after
opportunity for hearing, that the applicant was violating Title VI. 112 Cong. Rec. 25,573
(1966). Representative Fountain argued that a deferral was the same as a refusal, and
accordingly that deferrals should be subject to the same hearing procedure required to
refuse or terminate assistance. Id. at 25,573-74. In opposition, Representative
Celler argued that the amendment would preclude HEW from obtaining pre-award relief since
the award procedure would be completed before the Title VI hearing could be held. Id.
at 25,575. During the debate, Rep. Celler noted that HEW was acting pursuant to the
directives set out in the Title VI Guidelines. Id. The Senate version did not
include any limitation on deferrals. In conference, the prohibition was deleted and
replaced with a durational/procedural limitation on certain HEW deferrals. Conf. Rep. No.
2309, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 3896. Codified at
42 U.S.C. § 2000d-5. Again in 1976, in adopting the Education Amendments of 1976,
Congress imposed a durational/procedural limitation on HEW deferral authority, codified at
20 U.S.C. 1232i(b), but rejected a House passed amendment effectively prohibiting
specified HEW deferrals. 122 Cong. Rec. 13411-13416; H.R. Conf. Rep. No. 1701, 94th Cong.,
1st Sess. 242-43 (1976), reprinted in 1976 U.S.C.C.A.N. 4943-44. This post-adoption
legislative history buttresses the conclusion that deferrals are an appropriate
application of the pre-award remedial authority granted agencies by Congress. See Board
of Pub. Instruction of Palm Beach County, Fla. v. Cohen, 413 F.2d 1201 (5th Cir.
101 The Title VI Guidelines note that
deferral may be more appropriate where it will be difficult during the life of the grant
to obtain compliance, e.g., where the application is for noncontinuing assistance.
On the other hand, deferral may be less appropriate where full compliance may be achieved
during the life of the grant, e.g., where the application is for a program of
continuing assistance. Where the grant of assistance is not deferred despite a concern
about noncompliance, the Title VI Guidelines advise that
the applicant should be given prompt notice of the asserted
noncompliance; funds should be paid out for short periods only, with no long-term
commitment of assistance given; and the applicant advised that acceptance of the funds
carries an enforceable obligation of nondiscrimination and the risk of invocation of
severe sanctions, if noncompliance in fact is found. Id. II.A.2.
102 In the alternative, a federal
agency may obtain assurances directly from subrecipients, if it so chooses.
103 As discussed earlier, the Title IX
Common Rule and this Manual do not cover the Department of Education and its recipients,
which have long been subject to the Department of Educations Title IX regulations
and guidance. Nor are preaward reviews and related requirements delegable to the
Department of Education absent its consent.
104 A further refinement would involve
agencies sharing their lists of potential grantees with other agencies, as appropriate.
105 For example, pre-award reviews
would not be necessary for applications that are unlikely to be funded for programmatic
106 Post-award reviews may be limited
to a "desk audit," i.e., a review of documentation submitted by the
recipient, or may involve an on-site review. In either case, an agency will demand the
production of or access to records, and this discussion addresses the limits on an
agency's demand for such records.
107 See Title VI Coordination
Regulations, 28 C.F.R. § 42.407(c).
108 Each federal agency participating
in the Title IX common rule published a provision adopting the Title VI procedures. See,
e.g., Department of Education Title IX regulation at 28 C.F.R. §54.605.
109 See, e.g.,
Department of Justice Title VI Regulations, 28 C.F.R. § 42.107(a).
110 As mentioned above, it is assumed
that the first two factors can be established. First, that the access provision is an
appropriate exercise of agency authority to issue regulations consistent with the statute.
Second, it is assumed that any data sought will be relevant to an evaluation of whether
the recipient's employment practices or delivery of services are discriminatory.
111 An agency may wish to consider
involving the block grant recipient (generally, a State agency) in the compliance review
and in any subsequent negotiations to resolve identified violations.
112 "All Federal staff
determinations of Title VI, (as well as Title IX) compliance shall be made by, or be
subject to the review of, the agency's civil rights office." 28 C.F.R. § 42.407(a).
Where regional or area offices of federal agencies have responsibility for approving
applications or specific projects, the agency shall "include personnel having Title
VI review responsibility on the staffs" of these offices. These personnel will
conduct the post-approval compliance reviews. Id.
In this era of downsizing, it is understood that not all field offices will have Title
IX staff. This element of review, however, should be conducted and reviewed by experienced
Title IX personnel, whether as a full time or collateral duty, and whether or not as
members of the office in issue.
113 The discussion herein applies
primarily to post-award enforcement. Subsections address the extent to which enforcement
may vary in a pre-award context.
114 In considering options for
enforcement, agencies should consult the Title VI Guidelines. 28 C.F.R. § 50.3.
115 Agencies are strongly encouraged
to make use of alternative dispute resolution (ADR), whenever appropriate. Both the
President and the Attorney General have encouraged the use of alternative dispute
resolution in matters that are the subject of civil litigation. See Executive Order
12988 and Attorney General Order OBD 1160.1. The Administrative Dispute Resolution Act of
1996 authorizes the use of ADR to resolve administrative disputes. 5 U.S.C. § 571 et
seq.). ADR can consist of anything from the use of a neutral third party or mediator
to informally resolving a matter without completing a full investigation.
116 Where voluntary compliance is
achieved, the agreement must be in writing and specify the action necessary for the
correction of Title VI or Title IX deficiencies. 28 C.F.R. § 42.411(b).
117 Although Title VI (and, thus,
Title IX), do not provide a specific limit to the time period within which voluntary
compliance may be sought, it is clear that a request for voluntary compliance, if not
followed by responsive action on the part of the institution within a reasonable time,
does not relieve the agency of the responsibility to enforce Title IX by one of the two
alternative means contemplated by the statute. A consistent failure to do so is a
dereliction of duty reviewable in the courts. 28 C.F.R. § 42.411(b).
118 One example of language currently
used by the Department of Justice's Office of Justice Programs is as follows:
In reviewing an application for funding, we consider whether the applicant is in
compliance with federal civil rights laws. A determination of noncompliance could lead to
a denial of assistance or an award conditioned on remedial action being taken. We are
aware that the Department's Civil Rights Division is conducting an investigation involving
possible civil rights violations. The Civil Rights Division has advised us that your
agency is cooperating with its investigation, and we have taken that into account in
deciding to approve your grant application.
119 See, e.g., 24 C.F.R.
§ 1.8(d) (HUD); 29 C.F.R. § 31.8(c) (Labor).
120 For example, HUD regulations
require that the agency continue negotiations for ten days from the date of mailing the
notice of noncompliance to the recipient. Id.
121 The congressional intent behind
the 30 day requirement was to include seemingly neutral third parties, (the relevant
Congressional committees), to ensure that the decision to terminate funds was fair,
reasoned, and not arbitrary. See 110 Cong. Rec. 2498 (1964) (Statement of Cong.
Willis); 110 Cong. Rec. 7059 (1964) (Statement of Sen. Pastore).
122 Much of the legislative debate on
Title VI centered on the potential scope of any termination of assistance due to a failure
to comply with the rules effectuating Section 601. The Dirksen-Mansfield substitute bill,
which was developed through informal, bipartisan conferences, sought to answer those
concerns. For a listing and explanation of specific changes made by the substitute see,
110 Cong. Rec. 12817-12820 (1964) (Report of Senator Dirksen). Senator Humphrey explained
the purpose behind the substitute language.
Some Senators have expressed the fear that in its original form Title VI would
authorize cutting off of all federal funds going to a state for a particular program even
though only part of the state were guilty of racial discrimination in that program. And
some Senators have feared that the title would authorize canceling all federal assistance
to a state if it were discriminating in any of the federally-assisted programs in that
As was explained a number of times on the floor of the Senate, these interpretations of
Title VI are inaccurate. The title is designed to limit any termination of federal
assistance to the particular offenders in the particular area where the unlawful
discrimination occurs. Since this was our intention, we have made this specific in the
provisions of Title VI by adding language to 602 to spell out these limitations more
precisely. This language provides that any termination of federal assistance will be
restricted to the particular political subdivision which is violating non-discriminatory
regulations established under Title VI. It further provides that the termination shall
affect only the particular program, or part thereof, in which such a violation is taking
110 Cong. Rec. 12714-12715 (l964); see, 110 Cong. Rec. 1520 (1964) (Celler); 110
Cong. Rec. 1538 (1964) (Rodino); 110 Cong. Rec. 7061-7063 (1964) (Pastore).
123 The court noted that each of the
grant statutes affected by the order was denominated "a program" by the terms of
its own statutory scheme.
124 The court also quoted Senator Long
from the debate on passage of the Act:
Proponents of the bill have continually made it clear that it is the intent of Title VI
not to require wholesale cutoffs of Federal [f]unds from all Federal programs in entire
States, but instead to require a careful case-by-case application of the principle of
nondiscrimination to those particular activities which are actually discriminatory or
Id. at 1075 (quoting 110 Cong. Rec. 7103 (1964)).
125 The WEAL II decision
brought to a close sub nom. the twenty year history of litigation that began in
1970 under Adams v. Richardson, 356 F.Supp. 92 (D.D.C. 1973), a suit that
challenged the Department of Health, Education, and Welfares dereliction in
enforcing Title VI.
126 In this case, plaintiffs brought
suit to enjoin the Department of Education from allowing recipients of its funds to offer
certain federally funded scholarships exclusively to minorities. 983 F.2d at 486.
127 The Court further stated,
"absent clear direction to the contrary by Congress, the federal courts have the
power to award any appropriate relief in a cognizable cause of action brought pursuant to
a federal statute." Id. at 70-71.
128 The Court examined congressional
intent expressed both prior to and after its decision in Cannon. When Title IX was
enacted, Congress was silent on the subject of a private right of action, but the Court
noted that Congress acted in the context of the prevailing presumption in favor of all
available remedies. Id. at 72. Following Cannon, Title IX (and Title VI,
Section 504, and the Age Discrimination Act) were amended on two occasions, and neither
action evidenced congressional disagreement with this presumption. Id. at 72-73.
First, Congress added 42 U.S.C. §2000d-7 through the Rehabilitation Act Amendments of
1986, to abrogate the States Eleventh Amendment immunity in suits under these
statutes. Second, Congress added 42 U.S.C. §2000d-4a under the Civil Rights Restoration
Act of to restore the broad scope of programs covered by these statutes.
129 The Court explained that the
problem with "permitting monetary damages for an unintentional violation is that the
receiving entity of federal funds lacks notice that it will be liable for a monetary
award." Id. at 74. The notice problem is a function of the consensual nature
of an entitys decision to accept federal funds and the conditions attached to their
receipt. The entity weighs the benefits and burdens before accepting the funds, including
the nondiscrimination obligations that attach to the funding. The concern is that where
the violation is unintentional, particularly if it is a "disparate impact"
violation, the recipient may not have been sufficiently aware at the time the funds were
accepted that the nature and scope of the nondiscrimination obligation included a
prohibition on the specific behavior subsequently found to constitute unlawful
discrimination. Accordingly, responsibility for money damages may not have been foreseen. See
id.; Guardians, 463 U.S. at 596-597 (White, J., joined by Rehnquist, J.); Pennhurst
State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
130 U.S. Const. Amend XI states:
"The judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or subjects of any Foreign State." See Hans
v. Louisiana, 134 U.S. 1, 11 (1890).
131 The participating agencies
include: the Nuclear Regulatory Commission; Small Business Administration; National
Aeronautics and Space Administration; Department of Commerce; Department of Labor;
Tennessee Valley Authority; Department of State; Agency for International Development;
Department of Housing and Urban Development; Department of Justice; Department of Labor;
Department of the Treasury; Department of Defense; National Archives and Records
Administration; Department of Veterans Affairs; Environmental Protection Agency; General
Services Administration; Department of the Interior; Federal Emergency Management Agency;
National Science Foundation; Corporation for National and Community Service; and, the
Department of Transportation.
132 See 64 Fed. Reg. 58567
(1999). Three agencies that participated in the Notice of Proposed Rulemaking, the
National Endowment for the Arts, the National Endowment for the Humanities, and the
Institute of Museum and Library Services are promulgating separate Title IX regulations,
rather than participate in the final Title IX common rule.
133 See 65 Fed. Reg. 52858