I am a Title IX litigator. For years, I have been trying to convince schools to comply with their obligations under the law. It is often an uphill battle, so I welcome strong support.
The Office for Civil Rights (OCR) of the U.S. Department of Education is responsible for enforcing Title IX, but over the past ten years, I lost faith in OCR’s commitment to the law and its enforcement. After all, it issued athletic guidance that seemed to undo thirty years of progress. It issued new regulations allowing schools to offer more single-sex classes—a policy that took women’s rights advocates back to the pre–Title IX days of separate and unequal. And its regional offices seemed to let schools off the hook by resolving complaints without first investigating them.
But last spring, Secretary of Education Arne Duncan pledged to reinvigorate OCR and to refocus its commitment to enforcement. Eager to hear more about his plans, I recently met with Russlynn Ali, the assistant secretary of education in charge of OCR, to discuss the status of OCR’s commitment to Title IX enforcement. Her message: “OCR is back in business.”
Ali explained ways she plans to move OCR forward. This article captures part of that discussion and explains how OCR can make a difference through what it says about the law itself, how it educates schools of their obligations under the law, and how stringently it enforces the law. It also discusses what a difference OCR could make by providing victims of discrimination with a reliable way to fix problems without litigation. Ultimately, the kind of difference OCR makes depends on who is in charge.
OCR Guidance on the Law
Title IX is the primary means for combating sex discrimination in education. Its first section declares:
"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 program or activity receiving Federal financial assistance."
The statute does not list all the types of discrimination it prohibits or address all the ways that such discrimination occurs in the educational setting. Instead, it directs the federal agencies that dispense federal funds to issue rules “consistent with the achievement of the objectives of the statute” and to terminate (or refuse to grant) funding upon discovering noncompliance.
The Department of Education (usually through OCR) performs this function for Title IX. It explains the law and how it should be applied through its regulations, policy guidance, “dear colleague” letters, and many other ways. Courts in every circuit have accorded this guidance significant deference and have uniformly rejected all challenges to it. They rely heavily on what OCR says and apply the law accordingly.
In our interview, Ali highlighted two new “dear colleague” letters as evidence of OCR’s renewed commitment to enforcing Title IX—one involving athletics and the other involving sexual harassment and bullying. (She also noted that the department expects to issue guidance on sexual violence and STEM (science, technology, engineering, and math) issues next year. Unfortunately, she could not yet comment on its contents.) A brief look at these two letters—and the context in which they were issued—confirms the importance of a reinvigorated OCR and the difference it can make.
“Dear Colleague” Letter on Athletics
In April 2010, OCR issued a “dear colleague” letter on the application of Title IX to athletics participation. It withdrew a controversial Bush-era guidance that many believed weakened the law. The story of the two OCR letters tells the story of two different OCRs.
The Title IX regulations include specific provisions related to athletics. They require equity in participation, treatment, and scholarships. In 1979, OCR issued guidance on how schools should measure equity in participation. That “Policy Interpretation on Title IX and Intercollegiate Athletics” guidance established a three-part test that measures
1) Whether intercollegiate-level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
2) Whether the institution can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the members of that sex; or
3) Whether the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
In 1996, OCR issued a “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test,” which explains each part of the test and gives examples for its application. Part Three explains that schools that do not offer females a substantially proportionate number of athletic-participation opportunities can still comply with the law if they can show that they otherwise “fully and effectively” accommodate the interests and abilities of their female students.
The 1996 Clarification makes clear that schools have an affirmative obligation to assess and develop the interests of its women students. Schools cannot claim that their female students are not interested in sports just because they have not lobbied for them. The Clarification lists many ways schools can and should assess interest, including surveys of the student body; interviews with students; intramural or club sport participation; applications for new varsity teams; and participation by current or potential students in feeder schools, amateur athletic clubs, and community sports leagues. As the court in an early Title IX case against Brown University noted, interest and ability do not develop in a vacuum; they arise from opportunity and experience. If schools provide the opportunity, interest and ability will follow.
Thirty-eight years after Title IX’s enactment and thirty-one years after issuance of the Three-Part Test, most schools still violate the law and do not assess student interest. As a result, high schools offer boys more than 1.3 million more athletic opportunities than girls, while colleges offer men more than 60,000 more athletic opportunities than they provide women. Women also receive only 45 percent of athletic scholarship dollars (about $166 million less than men), 34 percent of sports budgets (about $1.17 billion less than men), and 32 percent of recruiting dollars (about $50 million less than men)—even though women make up about 56 percent of undergraduate enrollment.
Despite these disparities, Title IX has long faced strong opposition from football, wrestling, and other men’s sports groups. For years, they have unsuccessfully lobbied Congress to change the law and have unsuccessfully challenged it in court. After President Bush took office in 2001, these groups lobbied OCR’s new leadership to change the Three-Part Test.
The department responded to these efforts by establishing a Commission on Opportunity in Athletics, composed primarily of NCAA Division I athletics directors. In 2003, the commission issued a controversial report with recommendations that were detrimental to the growth of women’s sports and contrary to the law itself. The ABA weighed in against the recommendations and made the issue one of its Lobby Day priorities. After a groundswell of grassroots opposition to the recommendations, the department took no action.
Less than two years later, without notice or public input, OCR issued an “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test—Part Three” that substantially weakened Part Three of the Three-Part Test and rescinded the affirmative obligations explained in the 1996 Clarification. Instead, the 2005 Additional Clarification stated that schools could comply with Part Three simply by sending existing students an e-mail that asked them which varsity sports they would like to play. If too few existing students with sufficient athletic ability demanded a new sport, schools enjoyed a presumption of Title IX compliance that could be overcome only if OCR found “direct and very persuasive evidence” of unmet interest.
The 2005 Clarification represented a major change in the application of the Three-Part Test by relieving schools of their obligation to broadly investigate interest and by shifting the burden under Part Three from schools to students. It allowed schools to ignore the other means of assessing interest outlined in the 1996 Clarification, and it allowed colleges to ignore the fact that they recruit athletes for the purpose of participating on already-existing athletic teams; they do not draw athletes from the general student population. Similarly, high school students who want to play college sports do not attend colleges that do not offer those sports. Thus, athletic interest surveys of existing students merely freeze existing discrimination in place.
Upon assuming office in 2009, Secretary Duncan and Assistant Secretary Ali ordered a thorough review of the 2005 Additional Clarification. In April 2010, OCR issued a new “dear colleague” letter that withdrew the 2005 Additional Clarification because it was “inconsistent” with its 1979 and 1996 guidance. The new letter explains schools’ obligations under Part Three of the Three-Part Test and gives detailed guidance about the many factors that OCR will examine—and that schools should examine—to assess whether schools fully and effectively accommodate the athletic interests and abilities of their female students. Importantly, it reaffirms the 1979 and 1996 guidance that courts and schools had long relied on. As this example shows, what OCR says about the laws it enforces, and who is running OCR, matter.
“Dear Colleague” Letter on Sexual Harassment and Bullying
In October 2010, OCR issued a new “dear colleague” letter on sexual harassment. The letter does not change OCR’s existing guidance or standards, but it reminds schools that they must apply the guidance broadly to situations that they might not perceive as sexual harassment covered by Title IX. (The letter also addresses harassment based on race, national origin, and disability.)
For example, although Title IX does not prohibit discrimination on the basis of sexual orientation, it does apply to same-sex sexual harassment. It also applies regardless of the actual or perceived sexual orientation of the victim or harasser so long as the offensive behavior is sexual in nature or the harassment is based upon sex. The letter similarly makes clear that harassment based on sexual stereotyping—such as a male victim who is perceived to behave or dress like a female—also is precluded by Title IX.
The new guidance also discusses bullying, an epidemic that has been covered widely in the news lately. Although bullying per se is not prohibited by federal law, the guidance directs schools to look behind the behavior to assess the nature of and reasons for the bullying. If students are being bullied because of their sex or because they do not adhere to perceived gender or sexual norms, then the bullying is a form of sexual harassment that Title IX does preclude.
The 2010 “dear colleague” letter on sexual harassment does not break new ground, but it sets a new tone by putting schools on notice that they must look at harassment and bullying in expansive ways and will be held accountable if they do not. Given recent accounts of student suicides arising from such harassment and bullying, it is refreshing to see OCR on top of the issue.
Education and Technical Assistance
OCR conducts a technical assistance program that is designed to educate schools about their obligations under the law and help them comply with those obligations. OCR educates schools through its publications and Web site and participates in conferences and seminars and conducts onsite training. It sent a staff lawyer to the ABA Individual Rights and Responsibilities Section’s fall conference in Memphis, and Ali recently spoke to the Litigation Section in Chicago.
OCR also runs an information line. If schools have questions about how to comply with the law, they can contact OCR for help. If students or parents have questions about whether their schools are complying, they can do the same. OCR runs twelve regional offices around the country to help make such education possible.
Ali emphasized the importance that OCR places on technical assistance as the primary means for preventing discrimination in the first place. If schools understand their obligations, she believes they will voluntarily comply with them.
Ali also spoke about plans for OCR to play a bigger role in educating students about their rights. In August 2010, OCR published a pamphlet to remind schools that they must establish nondiscrimination policies and grievance procedures, designate a Title IX coordinator to enforce them, and disseminate the policies to students and parents. Ideally, if students know their rights, they will demand compliance at their schools.
If OCR follows through on this idea, it could create dramatic change by empowering the beneficiaries of Title IX to stand up for themselves.
Compliance and Enforcement
Unfortunately, not all schools comply with Title IX—no matter how much education and technical assistance they receive. When schools violate the law, someone must hold them accountable. OCR can do so by initiating compliance reviews and by resolving discrimination complaints filed by others.
OCR has the authority to initiate compliance reviews of federally funded programs even if it does not receive a complaint. It uses compliance reviews not only to remedy discrimination at the school being investigated, but also to highlight the kinds of problems that all schools should be fixing in their own programs. By addressing new or emerging problems in this way, and by thoroughly enforcing the law, OCR can set a tone for future compliance.
Ali expects OCR to conduct more compliance reviews and to pay particular attention to communities where parents and students are unlikely to file complaints either because they fear retaliation or because they are less aware or able to protect their rights. Without OCR intervention, such problems would likely never be fixed.
During 2009–10, OCR initiated thirty-seven compliance reviews covering fifty-four school districts, colleges, and universities. Ten reviews involved Title IX, including sex discrimination reviews in athletics, sexual violence, discipline, and STEM. Ali highlighted OCR’s compliance review in the discipline case because it involved disparate impact discrimination—a form of discrimination that individual victims cannot litigate on their own. In Alexander v. Sandoval, the Supreme Court held that private litigants cannot obtain money damages for disparate impact claims under Title VI but that OCR can still enforce the department’s disparate impact regulations administratively. Although it is unclear if the same holding would be extended to Title IX (it is not extended to the Rehabilitation Act of 1973, the other sister statute), it is encouraging that OCR recognizes it is the only entity that can address these kinds of issues.
The Complaint Resolution Process
OCR can make a big difference by how it enforces the law. If OCR stringently demands that schools comply with all legal requirements of Title IX, then more schools will be likely to comply with the law. But if OCR quickly negotiates deals to clear cases off its books, schools will start to realize that they can discriminate with few repercussions and will be more likely to maintain the status quo.
When OCR receives a complaint, it first reviews it to make sure it is timely (i.e., filed within 180 days of the discrimination) and that OCR has jurisdiction over the subject matter. If the complaint passes these tests, OCR assesses whether the complaint is appropriate for Early Complaint Resolution (ECR). If both parties agree to participate, then OCR facilitates a mediation in which the parties resolve the complaint themselves. This ECR process happens in only about 5 percent of cases filed, and OCR does not monitor compliance with such mediated resolutions. If the school violates the agreement, the victim must go back to OCR and start over. This practice puts a tremendous burden on complainants, because such resolutions are less likely to last if OCR does not monitor or enforce them.
If a case does not go to voluntary mediation, OCR investigates the allegations made in the complaint. At any time during the investigation, OCR and the school may negotiate a “voluntary resolution agreement.” If the school is unwilling to negotiate such a resolution, then OCR will issue a letter of findings that details the extent of the discrimination and the steps necessary to remedy it. If the school remains recalcitrant, OCR can refer the case to the Department of Justice for litigation or for an administrative hearing to terminate federal funding.
The complaint resolution process is designed to fix the discrimination quickly and without the cost or mess of litigation. OCR’s Complaint Resolution Manual (available at www.ed.gov/ocr) describes a thorough investigation process. But over the past ten years, advocates like me have witnessed that how the process works in fact is often quite different from how it is supposed to work in theory. For example, if the complaint is not clear or does not cover all the areas of discrimination, the resolution that OCR negotiates will not include them, because OCR only investigates the issues expressly identified in the complaint. This practice places a tremendous burden on complainants to know their rights enough to list all the ways in which a school discriminates and to use the magic words necessary to state a claim. In real life, this rarely happens.
Complainants do not have the right to participate in the complaint investigation or resolution process. Unlike court proceedings, they have no right to present evidence or argue their case. They also have no right to reject or appeal any resolution. Thus, in practice, the process ends up being a negotiation between OCR and the school over the enforcement of the complainant’s civil rights—often without the participation, input, or approval of the injured party.
If a school refuses to resolve a complaint and if OCR issues a letter of findings that substantiates the discrimination, OCR has the authority to refer the matter for litigation or administrative hearing for termination of funding. However, OCR has never withheld federal funding for a Title IX violation and has referred only one case for litigation—nearly thirty years ago. (OCR has initiated some enforcement proceedings for other statutes it enforces, particularly in the areas of disability and race.)
I asked Ali how she planned to reinvigorate OCR’s complaint process to ensure more thorough enforcement. She emphasized that OCR’s mission is to ensure compliance with all aspects of the laws that OCR enforces—not just some of them. She noted that OCR revised its Case Resolution Manual in January 2010 and expressed confidence that investigators will use it to promote full enforcement of the law.
Ultimately, Ali recognized that OCR will be judged by its actions and encouraged complainants to give OCR a chance to do its job. Recently, the National Women’s Law Center filed OCR complaints against high school districts in each of OCR’s twelve regions. The complaints will give OCR an opportunity to set a new tone for schools, complainants, and advocates. If investigators follow Ali’s lead, it could lead to a cultural sea change in the trenches of Title IX enforcement.
The Trials of Litigation
Litigation sometimes is the only way to obtain full justice for a particular individual. But when it comes to systemic change and injunctive relief, OCR may matter most because it is not litigation. Litigation is messy. It is expensive and takes far too long. Most families cannot afford to do it—financially or personally. Schools “dig in” when they get sued and hire lawyers. At the same time, some courts are reluctant to issue the detailed injunctive relief necessary to fix decades of discrimination. Federal judges do not want to spend years monitoring compliance plans.
Justice requires a better system. A reinvigorated OCR could make a world of difference. When I asked Ali why so many schools fear the NCAA more than courts or the OCR, she replied that she does not expect a reinvigorated OCR to have that problem. Once schools know that OCR is serious about enforcing the civil rights laws, she expects that schools will get on board. After all, OCR has the ultimate club—the withdrawal of federal funding, which is more than any court could award. But that club only works if schools fear that OCR will use it.
Overall, I am encouraged by OCR’s renewed commitment to its mission. Although I am a Title IX litigator, I hope that OCR will take that mission to heart and one day work me out of a job. In the meantime, other advocates and I will remain vigilant and will keep our fingers crossed.