Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Title IX regulations reach areas of EU such as admissions, financial aid, academic programs, rights of pregnant and parenting students, student treatment and services, counseling and guidance, discipline, grading, vocational education, housing and employment.
Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change the EU’s obligation to investigate and resolve allegations.
Sexual and gender-based harassment of students are forms of sex discrimination prohibited by Title IX. Acts of sexual violence are prohibited under Title IX, VAWA/Campus SAVE, and Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103–322.
Title IX applies to student-on-student sexual violence, as well as employee-on-student sexual violence. In these cases, EU must (1) determine whether the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e., creates a hostile environment; and (2) upon notice, take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence and, as appropriate, remedy its effects. The alleged conduct must be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances. The more severe the conduct, the less the need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. Indeed, a single or isolated incident of sexual violence may create a hostile environment (April 29, 2014 Questions and Answers on Title IX and Sexual Violence).
Since Title IX is a federal civil right, the appropriate standard of evidence is a “preponderance of the evidence.” This standard of evidence means that a hearing must determine whether a complaint of sex discrimination is “more likely than not” to have occurred or 51% likely to have occurred. This standard applies for all complaints of sex discrimination, including sexual harassment and violence.
Under Title IX both the accuser and the accused have equal rights, such as the right to:
1. Have an adviser of choice present during the process
2. Present evidence or have witnesses speak on their behalf
3. Have timely access to information that will be used at the hearing
4. Be present at pre-hearing meetings that provide an opportunity to present their testimony
5. Receive the final hearing decision in writing at the same time as the other party without being required to sign a non-disclosure agreement
6. Have a right to appeal the final decision
As a federal civil right, Title IX automatically protects any individual who reports sex discrimination, sexual harassment, or sexual violence against retaliation. This means employees and third party reports are protected along with reporting victims from any adverse consequence, harassment, intimidation, or discrimination that is causally related to reporting sex discrimination under Title IX. Schools must protect against other employees or students retaliating against a reporter when it “knows or should know” about the retaliatory harassment or behavior. If someone discourages or threatens you about discussing complaints of sex discrimination, sexual harassment, or sexual violence, this may be considered retaliation.
In addition to being obligated to victims, schools must address hostile educational environments created by sex discrimination, sexual harassment, and sexual violence school-wide. Addressing a hostile environment means remedying a current situation, addressing its effects, and preventing its recurrence in the future. Schools may meet this obligation through providing educational and awareness programming on sexual harassment or discrimination.
Both the Campus SaVE Act and the U.S. Department of Education require school employees that address sexual violence complaints to have appropriate training. The U.S. Department of Education also recommends that professors, campus police, administrators, counselors, health center staff, cleaning staff, coaches, resident advisers and others likely to receive reports be trained on how to identify and report sexual harassment and violence.
Policy 2009-03: Social Equity adopted October 8, 2009 by the Pennsylvania State System of Higher Education Board of Governors states that PASSHE universities and colleges have “a mandatory obligation to conduct employee training yearly in addition to training for new students and employee orientations. All faculty, staff, and administrators are required to participate in this training within 60 days of commencing employment and at least every year thereafter. The method of training is at the discretion of each university;”. Please contact the Office of Social Equity if you are interested in more information about the Title IX training that is offered.