Title IX For Students: Section A, General Discriminatory Conduct

Written by Cooper & Friedman PLLC on October 3, 2022

Title IX Sex and Gender discrimination student rights

According to the Department of Justice, the Title IX law is, in a general sense, “…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.” This is a law very closely intertwined with Title VI, actually having been modeled after the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin in programs or activities at receive federal funds. The largest rift between the two acts is that Title VI has no limiting specification in the statute in terms of containing the reach of the law to “educational” programs and activities.

This brings a spotlight to the Title IX law in the realm of those pertinent programs – i.e. all public and private elementary and secondary schools, school districts, colleges, and universities receiving any Federal funds – because of it specificity regarding sex discrimination and gender rights of the students attending or participating in these entities.

Before we dive into the law itself, Title IX states that every entity operating under Title IX must:

Have And Make Known Procedures For Students To File Complaints Of Sex Discrimination.
Have A Title IX Coordinator
Have And Distribute A Policy Against Sex Discrimination

You should have resources available to you immediately to make a claim should you experience a Title IX violation, and if you don’t, then the educational program or activity is already in violation of the law.

In this three-part blog series, students’ rights under Title IX will be extracted from the three applicable sections of the law and explained, so that you, as a student paying to attend these institutions with a responsibility to protect your rights, can know what’s covered by the law and when you should take your Title IX violation to court.

IV. Discriminatory Conduct

A. General

Chapter four of the Title IX law is entitled Discriminatory Conduct, and is the chapter that encompasses most of the information that students need to know pertaining to their rights under the law. Specifically, the information in Sections A, C, and D, which will be addressed in each part of the blog series respectively.

The first section, Section A, outlines the general terms of the Title IX statute, which are important to understand to grow a foundational knowledge of the types of discrimination.

In defining discriminatory conduct, there are three general categories of discrimination outlined:

Disparate treatment
Disparate impact
Retaliation

It is important to note, however, that discrimination, as it is used in the context of Title IX, refers to much more than stereotypical discrimination – such as barring admission, making some classes available only to one gender, or only providing financial support to one gender (although these are covered under the law, as well, see Part 2 of this blog series) – with the definition including sexual violence and harassment such as stalking, rape, sexual assault, sexual battery, and sexual coercion.

1. Disparate Treatment

The first category – disparate treatment – refers to actions that treat people in the same situation differently on the basis of a prohibited classification, which, in the case of Title IX, is sex and gender.

The stipulations of this subsection state that the accused discriminator was aware of the discriminated person’s sex and took action, at least in-part, based on that knowledge of their sex. The evidence, however, doesn’t have to show “bad faith, ill will or any evil motive on the part of the [recipient].” This means that regardless of the intention or motivation of the accused discriminator, the disparate treatment subsection of Title IX prohibits unjustified sex-based distinctions outright.

This doesn’t give students the right to claim that any action was one made with discrimination based on sex, though. The has to support a finding that the accused discriminator’s given reason (assuming that they defend themselves saying that they didn’t discriminate based on sex) for their action(s) was not the actual reason, and that discrimination based on sex was at the root of the decision.

This direct evidence may be difficult to come by, so most cases are investigated based on four main factors, although others may come into play:

The aggrieved person was a member of a protected class
The aggrieved person applied for, and was eligible for, an educational program operated by a recipient of federal financial assistance that was accepting applicants
That, despite the person’s eligibility, he or she was rejected
The accused discriminator selected applicants of the aggrieved person’s qualifications of the other sex or that the program remained open and the accused discriminator continued to accept applications from other applicants

In broad terms, disparate treatment is referred to as intentional discrimination, and shouldn’t be confused with disparate impact.

Example: City of Los Angeles Department of Water & Power v. Manhart (1978)

The Supreme Court held 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.

This may be in the case of an employment case, but is easily applicable to an educational case, such as a university policy that requires female applicants to pay a higher application fee or tuition amount.

2. Disparate Impact

Disparate impact, in contrast to disparate treatment’s focus on intentional discrimination, focuses on the consequences of a sex-neutral policy or practice. If this neutral procedure or practice that has a disparate impact on protected individuals and lacks a substantial legitimate justification, then it’s in violation of Title IX.

This key word – ‘neutral’ – is why it is often referred to as unintentional discrimination. Think equity vs equality, or the ‘ballpark fence’ analogy: if a 6 foot fence is built around a ballpark, it’s a barrier without discriminatory intentions, but it only has repercussions for those shorter than 6 feet tall, which is where it takes on disparate impact.

To establish discrimination claiming disparate impact, there must be more evidence than a demonstration that the practice or policy in question is a “bad idea.” In other words, there must be a causal connection between the policy and the disproportionate and adverse impact on a protected group. If this can be done, then there has to be a “substantial legitimate justification” from the accused discriminator’s side (assuming they choose to defend themselves). “Substantial legitimate justification” involves showing that the policy or practice in question is related to performance on the job, or in the case of education, that there must be an educational necessity for the practice in meeting an important educational goal.

Example: Sharif v. New York State Educ. Dep’t (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 state’s sole reliance on SAT scores to determine eligibility for such scholarships disproportionately discriminated against women. The District Court, in granting the plaintiff’s motion for a preliminary injunction, found that the state’s system of awarding Merit Scholarships had a discriminatory impact on women and constituted a violation of Title IX.

At the time, female high school seniors as a group consistently scored an average of sixty points lower on the SAT than their male counterparts. They (female high school seniors) did perform, however, just as well or better in high school courses and in other forms that could be eligibility standards. The reliance on the SAT as the single criterion for awarding the state merit scholarships resulted in a consistent pattern: females received only 43% and 28% of the Regents and Empire State Scholarships, respectively, although they represented approximately 53% of the applicant pool.

After this, the state employed consideration of both SAT scores and grade point averages, weighted equally, as the basis for awarding the scholarships in the 1987-1988 scholarship year, which improved the balance of scholarships awarded to females in relation to males: females, who comprised 53.3% of the applicant pool, received 49.3% and 37.4% of the Regents and Empire State scholarships, respectively.

3. Retaliation

In a change of direction from the previous subsections outlining the actual act of discrimination, retaliation is a categorization of discrimination defined by an accused discriminator’s reactive actions to someone who has or has threatened to file a complaint, or an accused discriminator who assists enforcement agencies in discharging their investigative duties, – both of which violate Title IX.

This is due to the reasoning that a right cannot exist in the absence of a beneficiary class willing and able to assert the right. Those discriminated against have the right to come forth for protection without intimidation, coercion, or threats coming from the accused.

This stipulation is based off of 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” Title IX seeks to protect the aggrieved person(s) who have been discriminated against from further adverse action while investigation is underway.

Retaliatory acts, as defined by the Department of Education, “…may include giving students failing grades, preventing students from participating in school activities, and threatening expulsion against any individual who exercises his or her rights under Title IX, are considered to be discrimination and are unlawful.”

Example: Jackson v. Birmingham Board of Education (2005)

In this case, the coach of a girls’ basketball team in Alabama complained to his supervisors that his team was not receiving an equal amount of funding nor equal access to the school’s athletic equipment and facilities, including a new gymnasium, to which the boys’ team had exclusive use of. Subsequently, the coach received negative work evaluations, and ultimately he was removed from his coaching position and denied the attending supplemental pay, although he was retained as a teacher at the school.

Again, this is a case regarding employment, but is easily applicable to an educational standpoint, such as a university professor failing a student after a complaint was made regarding sexual harassment involving the professor and the student.

What To Do If Your Title IX Case Has Been Mishandled

Unfortunately, Title IX rights have many ways to be violated, but not many ways to be proven. It’s always important to take a stand, though, and if you believe that your Title IX complaint was mishandled and that the campus policies were misused, or you felt that the complaint and/or investigation itself was mishandled, you have the ability to file a complaint with the Department of Education Office for Civil Rights.

You’re also welcome to bring your case to Cooper and Friedman – experienced Civil Rights lawyers ready to help you with your Title IX violations.

Some important information pertaining to Title IX cases:

Anyone may file a complaint.

This means that the person or organization filing the complaint do not need to be a victim of the discrimination and may complain on behalf of another person or group. However, the person filing on behalf of another person(s) is responsible for securing any necessary written consent from that individual, including when a parent files for a student over the age of 18.

A complaint usually has to be filed within 180 days of the last act of discrimination.

If your complaint involves matters that occurred longer ago than this and you are requesting a waiver, you will be asked to show good cause why you did not file your complaint within the 180-day period. This could be due to retaliation done against you because of your intent to file a complaint or other outstanding causes, such as debilitating injury, sickness, or uncontrolled circumstances.

You may file a complaint online or by email.

You may file a complaint with the Office of Civil Rights (OCR) using their electronic complaint form or by emailing either the electronic complaint form or a scanned, signed written letter of complaint to [email protected].

If you or someone you love has suffered a Title IX violation in the State of Kentucky and are in need of an experienced civil rights attorney, give the lawyers at the Cooper & Friedman law firm a call. The attorneys at Cooper and Friedman PLLC have over 50 years of combined experience defending the rights of civil rights violation victims. Schedule a free case consultation with an attorney by calling 502-459-7555 today.