Title IX and Private Institutions

Does Title IX apply to a private college?

Typically, yes. Private colleges, including for-profit colleges and online universities, must still comply with Title IX if they receive any federal funding.

Title IX, a law receiving more attention for its relationship to sexual violence on college campuses, applies broadly to all issues of sex-based harassment and discrimination in “any educational program or activity receiving federal financial assistance.”  See 20 USCS § 1681.

Most private colleges still participate in federal financial aid programs such as those that offer work-study programs, certain national scholarships, or federally backed student loans. If they receive any federal funds, private colleges must work to comply with Title IX.

Who is protected by Title IX?

The Office of Civil Rights has clearly stated: “Title IX protects all students at recipient institutions from sex discrimination, including sexual violence. Any student can experience sexual violence: from elementary to professional school students; male and female students; straight, gay, lesbian, bisexual and transgender students; part-time and full-time students; students with and without disabilities; and students of different races and national origins.” See Dept. of Ed., Questions and Answers on Title IX and Sexual Violence at 5 (Apr. 29, 2014).

Title IX also protects employees of an institution who also can expect to work in an environment free from sex-based harassment and discrimination.

What kinds of behaviors are prohibited under Title IX?

Title IX prohibits all forms of sex discrimination which includes sexual harassment; harassment based on sex, gender, gender identity, or sexual orientation; and also dating violence, sexual violence, and stalking. These behaviors are prohibited regardless of whether they are committed by an institution’s students, faculty, staff, visitors, or other third parties. Dept. of Ed., Title IX Resource Guide, at 15 (Apr. 2015).

What is sexual harassment?

According to the Department of Education’s Office of Civil Rights, “Sexual harassment is unwelcome conduct of a sexual nature, such as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

What is sexual violence?

The Office of Civil Rights had defined sexual violence as “a form of sexual harassment” that “refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent).” The definition includes acts such as “rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.” Dept. of Ed., Title IX Resource Guide, at 15 (Apr. 2015).

What are a private institution’s obligations under Title IX?

The obligations are generally the same across institutions, regardless of whether the institution is private or public, whether it has a mostly online presence or a highly residential campus, whether it’s a nonprofit or for-profit institution.

Once a private college or university knows or should have known about an incident of sexual harassment, sex or gender-based harassment or other behavior prohibited by Title IX, that institution must take reasonable steps to 1) address the behavior; 2) help remedy the negative effects of that behavior on the people who experienced or witnessed the behavior; and 3) help prevent the behavior from happening again in the future.

College must also designate a Title IX Coordinator, at least one employee whose name and contact information are published and available, to coordinate the institution’s efforts “to comply with and carry out [its] responsibilities under Title IX.”  Department of Education, Title IX Resource Guide, at 2 (Apr. 2015).

The Title IX Coordinator is the person ultimately responsible for making sure the institution has a process through which concerns about harassment and discrimination under Title IX can be fairly addressed and for ensuring the procedures are understood and accessible.

Does a private institution need to have a process in place for responding to Title IX concerns?

Yes. An institution does not need to have a Title IX specific process if it already has a dispute resolution or grievance procedure that provides “for the prompt and equitable resolution of student and employee complaints under Title IX.” Department of Education, Title IX Resource Guide, at 15 (Apr. 2015).

The exact procedures an institution puts in place may vary to account for differences in the kinds of allegations and students involved, the type of institution, and the local laws in effect. For example, a grievance process for a small professional school with no on-campus housing will likely address different issues than a residential college with fifteen thousand students.

What happens if a private institution mishandles a case of sexual harassment or discrimination?

Regardless of whether the institution is a private one or a public one, there are a number of options for individuals to consider. The three main options include: 1) utilizing the institution’s own grievance process; 2) filing a complaint with the Office of Civil Rights; 3) taking some form of legal action against the institution.

The options can often be used in conjunction with negotiations and one another, depending on specific remedy an individual wants. For example, individuals who believe a school’s overall response process is flawed and unfair may wish to file a complaint with the Office of Civil Rights in addition to seeking a better response to their specific case. A review by the OCR typically includes a comprehensive look at the policies and procedures an institution has in place. If the OCR finds an institution is not compliant, it can mandate the institution adopt compliant practices.

Legal action may not always be an immediate lawsuit against an institution but may involve formally notifying that institution of its failure to comply with the law and offering the opportunity to remedy the harms caused.

Working with or consulting a knowledgeable attorney can help identify the most effective options available in a given situation.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2015. All rights reserved.

This entry was posted in Privacy, Sexual Assualt, Sexual Misconduct, Title IX and tagged , . Bookmark the permalink.