If a school's Title IX obligations are tied to its federal funding, then does that mean that other, non-collegiate schools like high schools and elementary schools are tied to Title IX's rules and procedures, as well?
The answer is yes because primary education also receives a limited amount of federal funding. However, there is also far less controversy surrounding Title IX in the primary education setting, not only because sexual misconduct is considered less acceptable in high school and elementary school, but also because the control exerted over students makes allegations less uncertain and often reduces an accused student's due process concerns.
The Federal Funding that Triggers Title IX Regulations in Primary Education
Most of the federal funding for education goes to colleges and universities. However, some still get sent to elementary and secondary schools in the U.S., mostly through grants from the Elementary and Secondary Education Act (ESEA) to cover the costs of programs and facilities for low-income families. The ESEA was reauthorized by the 2001 No Child Left Behind Act.
Through these programs and others, the federal government is responsible for approximately 8% of the budget for primary and secondary schools in the U.S. – funds that come with strings attached, including the requirements imposed by Title IX to strictly enforce a school's prohibition against sexual harassment and misconduct.
The Negative Perception of Sexual Misconduct Before College
However, these strings are not necessarily as onerous for primary and secondary schools, largely because of the different perception that sexual misconduct has in them. While college students are sexually active adults who are deemed capable of making their own decisions and mistakes, younger students have far more rules hanging over them. Committing sexual misconduct is generally seen to break those rules, so vigorous enforcement of a school's policies against sexual misconduct is far less controversial in the setting of primary and secondary education.
More Control Over Students Means Fewer Due Process Concerns
Furthermore, high schools and elementary schools are run far more rigidly than colleges. While college students live on their own – with many even living off campus – and control the vast majority of their own time, students in elementary and high schools have very little independence. As a result, in many instances, there may be someone monitoring their actions that can help to prove or disprove an allegation of sexual assault or misconduct.
That is not to say that Title IX issues never come up outside of the collegiate setting. In fact, one of the leading Title IX cases, Davis v. Monroe County Board of Education, involved fifth graders. It just means that most of the discussion centers around what types of action constitute sexual misconduct, rather than what actually took place. This drastically reduces the due process concerns of the accused student in primary or secondary school, as they rarely face repercussions from allegations that are completely unsupported.
Joseph D. Lento: National Title IX Advisor and Lawyer
Joseph D. Lento is a national Title IX advisor and defense attorney who legally represents those who have been accused of sexual misconduct. Contact him online or call his law office at (888) 535-3686