Richard D. Hayes

Title IX was a law enacted in 1972, sign by President Nixon, which read: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”   On July 21, 1975, Title IX regulations went into effect. The regulations implementing Title IX require all universities receiving federal funds to perform self‑evaluations of whether they offer equal opportunities based on sex. Schools must provide written assurances to the Department of Education that the institution is providing equal opportunities.

Although Title IX is most commonly referred to in the context of collegiate athletics, Title IX, and its regulations apply generally to all aspects of federally funded education, whether it be educational opportunities, extracurricular activities, art or music program, or club membership. Equal expenditure is not absolutely required by the regulations, nor is an equal distribution of scholarship funds. However, if based on the factors listed above, a determination of discrimination is made, the Assistant Secretary of Education for Civil Rights may consider the failure to provide necessary funds for one sex in assessing equality of opportunity for members of each sex.

In Cannon v. University of Chicago, 441 U.S. 677 (1979), the U.S. Supreme Court held that an implied private right of action exists to enforce Title IX.   Therefore, individuals who have been discriminated against in violation of the regulations of Title IX may bring a private cause of action against the university or institution which is guilty of the same discrimination. Under Title IX, discrimination on the basis of sex can include sexual harassment, rape, and sexual assault. A college or university that receives federal funds may be held legally responsible when it knows about and

ignores sexual harassment or assault in its programs or activities. The school can be held responsible in court whether the harassment is committed by a faculty member, staff, or a student. In some cases, the school must pay the victim money damages.

Sexual harassment can qualify as discrimination under Title IX if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Bd. of Educ., 526 U.S. 633 (1999). To be held responsible, the college or university must have 1) authority over the harasser and 2) authority over the environment in which the harassment takes place. Davis, 526 U.S. at 645.   Further, the school’s response to harassment must have been“clearly unreasonable in light of the known circumstances.” Id. Finally, the school will be liable if it acted with “deliberate indifference to known acts of harassment in its programs or activities.” Id.

Proof of the above factors can give rise to a claim for money damages by the victim of the harassment against the educational institution; in general, these cases have settled out of court over the years.

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