Title IX requires colleges and universities in the U.S. to vigorously enforce the provisions of their codes of conduct that prohibit sexual misconduct, like sexual assault or harassment. However, Title IX focuses on the context of higher education, raising the question of when sexual misconduct falls under the guise of a school's code, and when it does not – it would be absurd to think that a college could enforce its code of conduct for sexual harassment that happened off-campus and between non-students with no relation to the college, whatsoever.

Regulations have drawn the line at a school's “program or activity” or its “operations,” so long as the school receives federal funding. If sexual misconduct happens in one of the school's “programs,” “activities,” or “operations,” the school's code of conduct and Title IX apply. What constitutes a “program,” “activity,” or “operation,” though, is only vaguely defined by the Title IX statute and its attendant regulations, leaving courts to fill in the gaps with a handful of factors and tests.

The “Control” Test

The main test that courts have fashioned to determine when a school has a Title IX obligation to enforce its code of conduct against sexual harassment is the “control” test of the 1999 Supreme Court case Davis v. Monroe County Board of Education. In that case, an elementary school girl was being sexually harassed by a classmate while in school. The Supreme Court decided that Title IX applied to the case because the school “exercises substantial control over both the harasser and the context in which the known harassment occurs.”

Of course, Davis involved sexual harassment allegations that were taking place, quite literally, in the classroom and school buildings, making it easy for the “control” test to work. Very few Title IX cases are so straightforward, forcing subsequent courts to look for other factors that could help them determine if a school had adequate control of a situation for Title IX to apply.

Other Factors Courts Have Found Important

In an attempt to patch together a workable system for what constitutes enough “control” for something to fall within the realm of a “program or activity” or “operation” of a school and trigger its Title IX responsibilities, courts have found the following factors helpful:

• While sexual misconduct that happened off-campus is not always outside the realm of a school's “operations” (Rost ex rel. K.C. v. Steamboat Springs RE-2 School District), it does cut against a claim that the school “controlled” the situation (Samuelson v. Oregon State University)
• Signs that the school promotes or exerts other forms of control over a particular organization or event, like a fraternity or party, that had solid connections to the alleged misconduct suggest that the school has enough control to warrant Title IX's application (Farmer v. Kansas State University)
• An alleged victim's intention to participate in the particular school's “program or activities” is important: While even members of the public can benefit from Title IX protection if they are “availing themselves” of the school's programs or activities, like a sporting event, public lecture, or library, an alleged victim of sexual misconduct who does not intend to participate in the school's operations falls outside the purview of Title IX (Doe v. Brown University)

Joseph D. Lento: Title IX Defense Lawyer

These overwhelming complexities deal merely with whether Title IX will even apply to a case of alleged sexual misconduct, highlighting the need for retaining a Title IX defense lawyer or advisor like Joseph D. Lento. Contact him online or call his law office at (888) 535-3686.