President Biden Signs Executive Order Potentially Expanding Scope of Title IX Protections
On March 8, 2021, President Biden signed an executive order indicating it is the policy of the Biden administration “that all students should be guaranteed an educational environment free of from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.” The order also called for the Secretary of the Department of Education and the Attorney General to review existing guidance and issue new guidance on Title IX. It is anticipated that new guidance will be issued.
What is Title IX and How Does it Impact Educational Institutions?
Title IX was passed as part of the Education Amendments of 1972 and precludes gender discrimination in most U.S. schools, including colleges and universities. More specifically, Title IX provides:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In short, education programs that receive federal funding are precluded from engaging in sex-based discrimination of any kind. Almost all K-12 public and charter schools that receive federal funding, such as reduced lunch programs, are subject to Title IX. In addition, colleges and universities that are authorized to disburse federal student loans receive federal financial assistance for purposes of Title IX even if they do not otherwise receive federal funding. According to the Department of Education, Title IX applies to 7,000 postsecondary institutions.
Actions taken by educational institutions pursuant to Title IX are subject to judicial review. Thus, courts have weighed in extensively on the scope of Title IX’s protections. As just a few examples, Title IX prohibits discrimination in the admissions process, course offerings, and participation in programs and activities like sports.
What Exemptions Exist for Colleges and Universities?
Although Title IX applies to most colleges and universities, there are several exemptions afforded in certain specific circumstances, including:
Admissions to private undergraduate colleges. Title IX’s prohibition of sex-based discrimination does not apply to the admissions process in private undergraduate colleges. However, these institutions’ programs and activities must comply with Title IX if they receive federal funding.
Private schools controlled by religious organizations. Title IX does not apply to private schools controlled by religious organizations to the extent that its application would be inconsistent with the schools’ “religious tenets.”
Membership Practices of social fraternities and sororities. Title IX does not apply to fraternity and sorority membership practices if their respective active membership consists primarily of students attending an institution of higher education and the fraternity or sorority is tax-exempt under the Internal Revenue Code.
These are just a select few exemptions. Others also apply.
Watch for Updates to Title IX
It is anticipated that forthcoming guidance may alter the Department of Education’s application of Title IX. However, at this time, the August 14, 2020 rule relative to sexual harassment and misconduct is still in place. It awaits to be seen if that will be altered or removed.
About the Author: Alden Thomas is a partner at Jaburg Wilk who primarily practices in the areas of education and employment law. She assists students with discrimination claims and responding to alleged honor code violations, including plagiarism. She also assists students with petitions to change their residency classifications and appeals of denied petitions.