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Aladin Sharapov
Aladin Sharapov

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Moreover, since this Manual is not designed to address Title IX enforcement with respect to traditional educational institutions, a number of subjects that pertain primarily to schools, such as athletics, are not addressed in depth. However, the vast majority of Title IX cases do involve educational institutions and so, of course, the Manual cites extensively to those cases in identifying applicable legal principles. Although this Manual generally cites to cases interpreting Title IX, cases interpreting Titles VI and VII of the Civil Rights Act of 1964, and Section 504 of the Rehabilitation Act of 1973 are also included. While statutory interpretation of these laws overlap, they are not fully consistent, and this document should not be considered to be an overview of any statute other than Title IX. Although this Manual is intended primarily for federal agency investigators use, it includes discussion of many cases involving individual Title IX lawsuits. It is important for federal agencies to remember that the standard for a Federal agency to determine whether a recipient has violated Title IX differs from the higher liability standard of proof that must be met in a court action before compensatory damages are awarded. Recipients have an affirmative duty to correct Title IX violations even if no monetary damages would be awarded because of the violation.

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It is important to note that even though Title IX carves out the above exceptions to its general prohibition on sex discrimination, governmental/public recipients may still have a constitutional duty not to discriminate on the basis of sex. Under the Equal Protection Clause of the Fourteenth Amendment, a governmental classification based on sex can be lawful only if the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724(1982)(nursing school could not justify excluding male applicants; policy violated the Fourteenth Amendment notwithstanding Title IX exemption, quoting, Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)). For example, even though Title IX may not prohibit a traditionally single-sex public entity providing training for nurses from excluding male applicants, the public entity must still demonstrate an "exceedingly persuasive justification" for the restrictive admission policy in order to survive an equal protection challenge. Id. at 724 (citing, Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)). See also United States v. Virginia, 518 U.S. 515 (1996)(U.S. Department of Justice successfully challenged military schools male-only admissions policy under Title IV of the Civil Rights Act.

As the womens civil rights movement gained momentum in the late 1960's and early 1970's, sex bias and discrimination in schools emerged as a major public policy concern. Women, who were entering the workforce in record numbers, faced a persistent earnings gap compared to their male counterparts. As a consequence of the equality in the workforce debate, Americans also began to focus attention generally on inequities that inhibited the progress of women and girls in education. Several advocacy groups filed class action lawsuits against colleges and universities and the federal government. These advocacy organizations complained of an industry-wide pattern of sex bias against women who worked in colleges and universities. As a consequence, Congress focused on the issue of sex bias in education during the summer of 1970 at a set of hearings on discrimination against women before a special House Subcommittee on Education chaired by Representative Edith Green (Oregon). Representative Green introduced a higher education bill with provisions regarding sex equity wherein she unsuccessfully attempted to add a prohibition on sex discrimination to the Education Amendments of 1971.

Under the Intergovernmental Personnel Act of 1970, federal agencies may allow a temporary assignment of personnel to State, local, and Indian tribal governments, institutions of higher education, federally funded research and development centers, and certain other organizations for work of mutual concern and benefit. See 5 U.S.C. ï 3372. This detail of federal personnel to a State or other entity is considered federal financial assistance, even if the entity reimburses the federal agency for some of the detailed employee's federal salary. See Paralyzed Veterans, 477 U.S. at 612 n.14. However, if the State or other entity fully reimburses the federal agency for the employee's salary, it is unlikely that the entity receives federal financial assistance. For example:

While showing that the entity directly receives a federal grant, loan, or contract (other than a contract of insurance or guaranty) is the easiest means of identifying a Title IX recipient, this direct cash flow does not describe the full reach of Title IX.20

Consistent with this construction, most federal agencies have joined in adopting final regulations implementing Title IX which broadly prohibit "discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a recipient that receives Federal financial assistance."76

As noted above, the Title IX common rule specifically incorporates the disparate impact standard as part of its prohibitions against sex-based employment discrimination.83 In addition, the Title IX common rule applies its prohibition against sex-based discrimination to the full range of activities related to the recruitment, evaluation, classification, payment, assignment, retention or treatment of employees.84 The Title IX common rule addresses various areas including the treatment of pregnancy as a temporary disability, pre-employment inquiries regarding marital or parental status, imposition of employment criteria or testing devices having a disproportionate impact, recruitment, and compensation and benefits (including equal pension contributions and benefits).

Recipients are sometimes subject to competing and/or contradictory requirements having the potential to interfere with their ability to fully discharge their Title IX obligations. These competing obligations might result from state or local laws or find their source in third party labor or service contracts. They could include, for example, limitations or restrictions on the number of hours worked or types of jobs filled by women. Given the Supremacy and Spending Clauses, however, a recipients federal obligation to comply with Title IX to eliminate unjustified sex-based discrimination in employment is superior to its obligation to comply with local law or third party contracts. In pertinent part, the Title IX common rule provides that:

Under the Title IX common rule, a recipient must not discriminate on the basis of sex in providing health and insurance benefits or services. Specifically, the provision of such benefits and services to students must meet the same requirements as outlined in the employee provisions of the common rule. 65 Fed. Reg. at 52873-52874. However, these provisions do not prohibit a recipient from providing any benefit or service that may be used by a different proportion of students of one sex than of the other, including family planning services. However, any recipient that provides full coverage health service must provide gynecological care. 65 Fed. Reg. at 52872.

This interpretation is a reasonable, and even necessary, application of the statutory remedial scheme. The congressional authorization to obtain relief pre-award would be sharply reduced, if not rendered a near nullity, if agencies could not postpone the assistance decision while spending the time needed to conduct a full and fair investigation and while seeking appropriate relief. Furthermore, the Attorney General's administrative interpretation is entitled to deference. See, e.g., Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984).100

When voluntary compliance is sought at the pre-award stage, agencies may exercise heightened flexibility in designing appropriate remedial conditions, for two reasons. First, if the pre-award remedy does not fully resolve the discrimination concern, agencies may have the opportunity to rectify this matter during the life of the assistance grant. Second, since a pre-award investigation and remedial efforts likely would require a deferral of the assistance award, it may be in the interest of the applicant (as well as potentially the agency) that interim measures be agreed to that allow the award to go forward while also addressing the discrimination concern. Thus, a pre-award special condition may grant provisional relief, require that certain aspects of the recipient's program be monitored, and/or require that the recipient provide additional information relating to the discrimination allegations. Of course, the mere fact that relief may be sought post-award does not necessarily mean that full relief, using voluntary means or otherwise, should not be sought pre-award.

The most common form of relief sought and obtained through a private right of action is an injunction ordering a recipient to do something. See Cannon, 441 U.S. 667. See also, United States v. Baylor Univ. Med. Ctr., 736 F.2d at 1050, in which the Fifth Circuit held that a court can order termination of federal financial assistance as a remedy. The Supreme Court also has held that individuals may obtain monetary damages for claims of intentional discrimination under Title IX. See Franklin, 503 U.S. at 75 n.8. As discussed below, agencies are encouraged to identify and seek the full complement of relief for complainants and identified victims, where appropriate, as part of voluntary settlements, including, where appropriate, not only the obvious remedy of back pay for certain employment discrimination cases, but also compensatory damages for violations in a nonemployment context. Agencies are also asked to recommend the scope of relief to be sought in referrals of matters to the Department of Justice for judicial enforcement.


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