The currently proposed amendment to Title IX's enforcement mechanism is the biggest news surrounding the law in years. Title IX lawyers and scholars have been discussing the changes to the regulation Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance non-stop since they were proposed months ago.
As we have detailed in our blog, before, one impact of these amendments to Title IX could reduce a college's off-campus reach by keeping them from enforcing the school's code against sexual misconduct when that alleged misconduct did not happen at one of the school's “programs or activities.” While there is an important drafting error in the amendments that could determine a school's Title IX jurisdiction, the impact could almost eliminate some school's Title IX obligations. The reason: Some schools have very few “programs or activities” that would fall within the purview of Title IX's new regulatory framework.
The Significance of Defining a College's “Programs or Activities” for Title IX
The proposed amendments show how the precise definition of a school's “programs or activities” is a critically important aspect of Title IX enforcement. Based on the as yet unresolved drafting error, if a clear and incontrovertible instance of sexual misconduct happens outside of these “programs or activities,” then the school either cannot initiate Title IX action or does not have to initiate Title IX action.
What are a School's “Programs or Activities”?
Unfortunately, the meaning of the phrase “programs or activities” has been left vague in the Title IX context. The starting point for interpreting the term is in Title IX, itself, at 20 U.S.C. § 1687(2)(A). This statute, though, is less than helpful. It merely says that a school's “programs or activities” are “all of the operations of a college, university, or other postsecondary institution, or a public system of higher education” that receives federal financial assistance. This just begs the question, “what is a school's ‘operations'?”
Subsequent statements about what constitutes a “program or activity” that would trigger a school's Title IX enforcement ability have fallen well within the broad ambit of “all of the operations” of the school:
- “Any academic, extracurricular, research, [or] occupational training” program is a “program or activity” (34 CFR § 106.31)
- Resources like “university libraries, computer labs… vocational resources… campus tours, public lectures, [or] sporting events” are “programs or activities” of a school that trigger Title IX jurisdiction, even for alleged victims who are mere members of the public (Doe v. Brown University)
- A school's “programs or activities” can occur “off school grounds” (Rost ex rel. K.C. v. Steamboat Springs RE-2 School District)
Without a more solid definition of a college's “programs or activities,” courts have been forced to look to numerous factors to even determine whether Title IX applies to a given situation, or not.
Joseph D. Lento: Title IX Defense Lawyer and National Advisor
Joseph D. Lento represents students who have been accused of a Title IX violation for sexual misconduct. Contact him online or call his law office at (888) 535-3686 for legal guidance if you have been accused.