A Law in Flux: The Department of Education’s July 2021 Guidance on Title IX

You're a student, just trying to maintain your grade point average and figure out what you want to do with your life. Suddenly you find yourself accused of sexual misconduct. Your college sends you a letter explaining that it has initiated a Title IX investigation against you. You're angry, upset, scared. You probably have dozens of questions. Will you have to talk to the police? Will the school try to expel you? Could they suspend you now, while they investigate? What are your rights during this whole process?

We've designed this guide to try and provide some answers to important questions like these. Here's the unfortunate reality, though: many of these questions don't always have clear answers. That's because politicians, judges, lawyers continue to fight over just what the law says.

Title IX, the federal law schools use to investigate and prosecute most instances of sexual misconduct, has been in a constant state of flux, almost from the moment it was passed in 1972. Members of both parties in Congress have tried to change it; the courts have weighed in on what it means; presidents have used their authority to try and dictate how it is enforced.

In fact, the debate over Title IX has reached a fever pitch in the last five years. As the arguments from all sides have grown louder, confusion over the law has grown as well.

In July 2021, the Department of Education's Office of Civil Rights released a brand-new document with the rather unwieldy title, “Questions and Answers on the Title IX Regulations on Sexual Harassment.” As that title suggests, the document is a set of “questions and answers” meant to clarify how Title IX is supposed to work. Unfortunately, it didn't accomplish that task. It's certainly thorough enough. The document is 67 pages long, addresses 67 separate questions, and includes an extensive appendix. Yet, it ultimately raises more questions than it answers.

Our goal here is to untangle some of the confusion over Title IX. We put the document into historical context, look at its central arguments, and draw some conclusions about what impact it might have on current Title IX investigations.

The bottom line, though, is that if you have been accused, the very first thing you should do is contact a qualified Title IX attorney. You'll discover as you read through this guide that the law is complex and, as we've just suggested, the debate over how it should be used is far from settled. Educating yourself about the law is an important first step in defending yourself. You also need someone on your side, though, someone who can navigate through these complexities, protect your rights, and get you the best possible outcome for your case.

A History of Change

To understand Title IX today, you first need to understand its history since that history shows just how and where all the confusion got started.

A Necessary Corrective

Title IX was passed by the US Congress in 1972, one of several “education amendments” meant to bring greater equality to American education. Title IX specifically was aimed at eliminating sexual discrimination and harassment at elementary, secondary, and post-secondary institutions. As such, the law was a crucial step forward in the struggle for women's rights.

Prior to its passage, colleges and universities could sometimes be openly hostile towards women. In fact, some schools had only recently admitted women. Others still had strict regulations about where women could go on campus, how late they could be out, even what subjects they could study. Title IX demanded all students be treated equally, regardless of their sex.

The law worked extraordinarily well. The numbers tell the story. At the time it was enacted, only 43% of college students were female. Today, that number is 57%. Today, schools in this country are among the most welcoming institutions for women in all of American society, bastions of liberalism and home to countless feminist studies programs.

A Matter of Interpretation

As necessary as the law was, however, and as much as it has done to advance the cause of women's rights, there were problems with Title IX right from the start. Chief among these: it was written so generally that it left too much open to interpretation. Certainly, the law's broad intent is clear enough. The central text of Title IX reads,

“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.”

There is no ambiguity as to the meaning of this sentence: everyone is entitled to an education regardless of what their sex might be.

Yet, if the law's goals were clear, how these goals were to be achieved was not. Right away, for instance, legislators began debating the meaning of the phrase “education program or activity.” Did that phrase include sports? If so, the law seemed to suggest men's and women's athletic programs must be treated equally. That made a number of sports fans uneasy. What might happen to college football, for instance, if the federal government insisted schools have equal numbers of male and female athletes, give each the same number of scholarships, and fund programs at the same level?

Athletics has remained a high-profile subject of contention, one that has not yet been completely resolved. Other Title IX debates quickly flared up as well, though. One of the most important had to do with the string of phrases “be excluded from participation in, be denied the benefits of, or be subjected to...” The wording here is noticeably passive voice. In other words, the law doesn't specifically identify who exactly is prohibited from “excluding,” “denying,” and “subjecting.” Obviously, those prohibitions would seem to apply to “any education program or activity receiving Federal financial assistance.” In simplest terms, the law barred schools themselves from discriminating against anyone on the basis of sex. A school couldn't, for example, deny women admission or restrict what women could study.

Just as obvious, the law would seem to apply to representatives of the school, faculty, and administrators. After all, a school is the people who work there. Just as schools weren't allowed to restrict entry based on sex, it was logical to assume professors couldn't show preferential treatment to male students in their classrooms.

Things become a little trickier when it comes to a school's students. If one student discriminates against another, is the school itself guilty of discrimination? Could the school in that situation be said to be in violation of Title IX? The logical answer would seem to be no. Students, after all, are a school's “customers.” Wal-Mart isn't responsible if one of its customers decides to assault another one. However, when it comes to schools, the answer that developed over time was, yes, schools were responsible for their students' behaviors. In other words, colleges and universities have an obligation under Title IX to make sure their students don't engage in discriminatory practices.

That answer made schools responsible for disciplining their students. Title IX itself included a powerful enforcement mechanism. The federal government vowed to withhold funding from any school that refused to cooperate with its campaign for equality. That mechanism only applied to schools themselves, though, not to their students. Schools were required to come up with their own methods for dealing with sexual discrimination. They weren't given any guidance about how to do this, though. As might be expected, every school created its own unique set of policies and procedures. As might further be expected, that resulted in total confusion.

More questions about Title IX followed, many of them only provisionally settled through long and contentious court cases. What did “shall not be” mean, for example? Did that phrase mean “should not,” as in “schools should do the best they can to prevent discrimination”? Or did it mean “must not,” as in “schools will be held to a zero-tolerance standard and any incident will be held against them”?