9 Things You Need to Know About Title IX

Title IX has changed over the past several years, with new rules released in 2020. More recently, the law has come under increasing scrutiny, especially regarding discrimination. Here are nine things Christian schools, colleges, and universities should know about today’s Title IX, including steps you can take to protect your educational institution.

While Title IX regulations have been in place for nearly 50 years, significant review of the former regulation led to the rules being updated in 2020, giving schools more responsibility for ensuring due process and equal treatment of all students involved in a Title IX complaint.¹ Some of the updated rules include providing supportive measures for parties involved in a complaint, clarifying how schools must respond to incidents of sexual harassment, and expanding due process in handling the grievance process.²

This article is an overview of Title IX and how it interacts with faith-based educational institutions, including updates to Title IX Grievance Procedures and various Title IX roles. You’ll also find several recent lawsuits highlighted such as Hunter v. Department of Ed filed in 2021, which challenges discrimination based on sexual orientation or gender identity.

1. History and Purpose of Title IX

Title IX of the Education Amendments of 1972 applies to schools that receive federal financial assistance from the Department of Education and prohibits sex discrimination in educational programs and activities. Sex discrimination can include sexual harassment and sexual violence. The law applies to elementary and secondary schools as well as colleges and universities. School operations that are covered by Title IX, include, but are not limited to,³ recruitment, admissions, counseling, financial aid, athletics, employment, and many other areas.

2. Faith-Based Exemption

Generally, all schools that receive federal financial assistance from the Department of Education are subject to Title IX of the Education Amendments of 1972.⁴ Federal financial assistance includes direct and indirect financial assistance, such as accepting federal student aid money.

Title IX contains an exemption for schools that are controlled by a religious organization if the application would not be consistent with the religious beliefs of the organization.⁵

According to prior Department of Education guidance, an institution is considered “controlled” by a religious organization if it meets one or more of the following conditions:⁶

1. The school is a department or branch of a religious organization that specifically offers an educational program that prepares students to become ministers of religion or to enter some other religious vocation, or to prepare them to teach theological subjects.

2. The school requires its faculty, students, or staff to be members of, or express a personal belief in, the religion of the organization that controls it.

3. The educational institution’s charter and catalog, or other official publications, specifically state:

The school is under the control of a religious organization or another institution that the same religious organization also controls.
The educational institution is committed to the doctrines of a religious organization.
The controlling religious organization, or an institution that the religious organization also controls, appoints the members of the educational institution’s governing body.
The controlling religious organization, or an institution that the religious organization also controls, provides a significant amount of financial support to the educational institution.

Other than schools of divinity, most educational ministries sought qualification under the third set of conditions.

In 2020, the Department of Education updated regulation 34 C.F.R. 106.12(c) to state that “controlled by” means:

A school or department of divinity;
Faculty, students, or employees are members, engage in religious practices, or espouse a personal belief in the religion;
States it is controlled by a religious organization or committed to doctrine of a particular religion, and governing body are appointed by a religious organization, and it receives significant funding from the religious organization;
Statement of religious practices, along with statement that members of the community must engage in religious practices or espouse a personal belief in it;
Published institutional mission that is approved by the governing body and refers to religious beliefs; or
Other evidence to establish the institution is controlled by a religious organization.

3. Title IX Coordinator⁷

In addition to prohibiting sex discrimination across educational activities and programs, Title IX requires a school that receives federal financial assistance to designate at least one employee to coordinate the school’s efforts to comply with and carry out its responsibilities under Title IX. This person is generally referred to as the “Title IX coordinator,” and his or her contact information must be provided to all applicants for admission (and their parents or guardians) or employment, students, unions, and employees.

One responsibility of the Title IX coordinator is to help manage the school’s Title IX notice. The notice generally should state that the school does not discriminate based on sex in the education programs or activities it operates. It should be prominently posted on the recipient’s website, at various locations on campus, and in electronic and printed publications for general distribution. In addition, the notice must be included in any bulletins, announcements, publications, catalogs, application forms, or recruitment materials.

Additional responsibilities of the Title IX coordinator include:

Ensuring compliance with grievance procedures for resolving Title IX complaints
Participating in drafting sex discrimination policies and procedures
Coordinating the educational institution’s response to all complaints, monitoring outcomes, identifying patterns, and assessing effects on campus climate
Monitoring student participation in athletics and academics to ensure equal access to educational opportunities
Providing training to students, faculty, and staff on issues related to Title IX

4. Discrimination Based on Sexual Orientation and Gender Identity

In 2016, the Department of Education released “significant guidance” that required all schools to accommodate transgender students with respect to restrooms, locker rooms, overnight accommodations, athletics, and many others. Although later rescinded due to lack of formal rulemaking, the Department of Education’s guidance stated that discrimination on the basis of sex includes discrimination on the basis of a student’s gender identity.⁸

In 2017, the Department of Education rescinded the significant guidance on accommodating transgender students. However, guidance released in 2021 includes the modern interpretation of sex to include sexual orientation and gender identity. In fact, recent court cases have affirmed that sex includes both sexual orientation and transgender identity.

What’s more, on April 6, 2021, the Department of Education’s Office of Civil Rights announced a review of Title IX regulations. The review includes solicitation of public input on the regulations, which could lead to the Department of Education returning to the 2016 guidance with respect to transgender students.

5. Impact of The Equality Act

Additionally, the proposed Equality Act would include “sexual orientation” and “gender identity” as protected classes within several federal anti-discrimination laws. Because the Equality Act would amend several different federal anti-discrimination laws, each of which having varying coverage requirements (such as employers meeting minimum size requirements, educational institutions receiving federal funding, etc.), the Equality Act may apply to a variety of different religious institutions. Brotherhood Mutual published an article regarding the Equality Act in its online Safety Library.

6. Recent Lawsuits

There have been several recent lawsuits related to student rights under Title IX. Below are some examples of such cases filed against colleges and universities.

John Doe v. Purdue University, 928 F.3d 652 (7^th Cir. 2019)

In 2019, the U.S. Court of Appeals for the Seventh Circuit decided Doe v. Purdue University. In this case, the university found a male student guilty of sexual violence against a woman. As a result, the male student was suspended for an academic year with conditions on his readmission. He was then expelled from the Navy ROTC program which also terminated his ROTC scholarship and his plan to pursue a career in the Navy. Subsequently, the student filed a claim for monetary relief under 42. U.S.C Section 1983 against Purdue University and university officials alleging that his expulsion after he was found guilty of committing sexual violence violated the Due Process Clause of the Fourteenth Amendment by using constitutionally flawed procedures to determine his guilt, and violated Title IX by imposing a punishment based on sex bias.

The district court dismissed the student’s suit. However, the Seventh Circuit disagreed and determined that the student adequately alleged violations of the Fourteenth Amendment and Title IX. On the Title IX claim, the court found that the male student’s gender bias claim should have made it past the dispositive pleadings stage considering, among other facts, the university’s resource center shared a Washington Post opinion article arguing that men, not alcohol, cause sexual assault on campus. The court remanded the case to the district court for further proceedings.

John Doe v. University of the Sciences, 961 F.3d 203 (3^rd Cir. 2020)

In this case, a male student sued a private university after being expelled for allegedly violating the university’s sexual misconduct policy when two female students accused him of sexual misconduct. At the time of the expulsion the student had completed nearly all of the coursework required to earn a degree in biomedical science. The male student’s claim alleged sex discrimination in violation of Title IX as well as breach of contract.

The district court dismissed the student’s claim. The U.S. Court of Appeals for the Third Circuit reversed the district court’s dismissal holding that the student’s complaint contained plausible allegations claims for sex discrimination under Title IX considering, among other facts, that the university selectively investigated the male student and not the female students involved. The court determined that when the male student’s allegations about selective investigation of only the male student and not the female students is combined with his allegations related to the university’s pressure to comply with the 2011 Dear Colleague Letter, the male student stated a plausible claim of sex discrimination.

Doe v. Oberlin College, 963 F.3d 580 (6^th Cir. 2020)

In Doe v. Oberlin College, a male student brought action against a private college alleging sex discrimination under Title IX. The college chose to expel him after a female classmate brought a sexual assault complaint against him. The district court granted the college’s motion to dismiss. The Sixth Circuit in that case, however, reversed the district court’s decision after finding that the student sufficiently alleged that his expulsion was the result of sex bias.

Schwake v. Arizona Board of Regents, 967 F.3d 940 (9^th Cir. 2020)

In this case, a graduate student brought action against a university alleging that it violated Title IX by discriminating against the student on the basis of sex during the disciplinary proceedings. The district court dismissed the case but the Sixth Circuit reversed in part and remanded finding that the student’s allegations were sufficient to state a Title IX sex discrimination case considering, among other factors, that the university failed to review exculpatory evidence submitted by the male student.

7. Recently Dismissed Class-Action Lawsuit

Hunter v. Department of Ed

In 2021, the Religious Exemption Accountability Project (REAP) sued the Department of Education on behalf of 40 current or former LGBTQ+ students of faith-based institutions. The group claimed that the religious exemption of Title IX violated their rights under the Equal Protection Clause (Fourteenth Amendment), the Due Process Clause (Fifth Amendment), and the First Amendment.

If successful, the Department of Education would have been unable to grant religious exemptions – which would likely diminish the ability of faith-based institutions to act on their religious beliefs about sexual orientation and gender identity. Such an outcome would have placed these institutions at risk of losing federal funding, including student financial aid.

In January 2023, the District Court granted the defendants' motion to dismiss the lawsuit. According to the opinion, the plaintiffs failed to establish that Title IX religious exemptions violate the First, Fifth, or Fourteenth Amendments. According to the opinion, when "a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization," religious exemptions are "substantially related to the government’s objective of accommodating religious exercise.”¹²

Since it was upheld, institutions can continue to apply the Title IX religious exemption when making decisions according to their deeply-held religious beliefs – including requests for accommodations based on students' sexual orientation, gender identity, or gender expression.

REAP expressed its intention to "continue to fight to protect LGBTQIA+ students' rights on these campuses" and is considering an appeal. 13

8. Grievance Procedures

A school that is subject to Title IX must also adopt and publish procedures, commonly referred to as grievance procedures, for the prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct.⁹ There are several different procedures that a school may use, depending on the nature of the allegation, the age of the student or students involved, the size and administrative structure of the school, state or local legal requirements, and what it has learned from past experiences.¹⁰ When posted, either in a student handbook and/or on the school’s website, the grievance procedure should outline the steps in the process, including how to file a formal complaint.¹⁰

The updated Department of Education regulation clarifies how schools must conduct a fair and impartial investigation when a formal complaint is filed and explicitly states that the grievance process must provide for live hearings.¹¹ The final rule strengthens a school’s mandatory response process, adding a provision that requires Title IX coordinators to discuss supportive measure options with complainants.¹¹ Supportive measures are defined as individualized services reasonably available that are nonpunitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.¹¹

The updated rule also clarifies that schools must respond to reports of harassment at locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred, including any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.¹¹

Another noteworthy update is a section prohibiting retaliation against any individual who has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in a Title IX investigation, proceeding, or hearing.¹¹ When responding to formal complaints, effective policies and procedures should provide care for victims while protecting rights of the accused.

One other important change is the addition of the Title IX Advisor. The updated rule enables anyone involved in a Title IX complaint to have access to an individual that can accompany them to the Title IX hearing. The advisor can be a friend, parent, family member, attorney, or any other person the student or employee chooses. If the person doesn’t have an advisor, the college or university should provide an advisor of the school’s choice.¹¹The advisor will conduct cross-examinations of a party or witness at the hearing.

For full information regarding the grievance procedures requirements, please refer to the Department of Education Title IX Final Rule (unofficial copy). To review the major provisions of the final rule, refer to the Department of Education summary.

9. Protect Your Educational Institution

Update Governing and Organizational Documents

With several recent lawsuits as well as pending legislation, it’s important for Christian schools to prepare for a variety of potential outcomes. There is a potential for challenges to sincerely held religious beliefs as well as religious exemptions. Strengthening your guiding documents is a good first step. It’s a good practice to weave your purpose and beliefs, with applicable references to scripture, throughout all your governing and operational documents, including your bylaws, employee handbook, faculty handbook, student handbook, catalogs, and overall school plans, policies, and procedures. It’s also important to spell-out your behavioral expectations for employees, faculty, and students.

It is important that the ministry’s documented beliefs in operational and governing documents, while not necessarily identical, are consistent with one another. The purpose of consistently documenting ministry beliefs along with scriptural references, although not absolute, is to help avoid potential discrimination claims (and if necessary defend such claims) by allowing ministry leaders to point to their written documents to demonstrate that certain policies and procedures are based upon sincerely held religious beliefs. Citing scriptures is very important and having this publicly stated on your website is helpful.

Ensure Your Title IX Policy Complies with the Law

Because of the complexities of Title IX compliance, it is important to make sure your school’s Title IX policy complies with the law, including the 2020 regulations. Having a good policy in place and ensuring that your employees are adequately trained on your institution’s Title IX policy, can help reduce your school’s liability exposure to claims alleging your organization violated Title IX by failing to comply with Title IX’s due process requirements. If you have not already, you are encouraged to have your policy reviewed by an attorney with experience in Title IX compliance.

Obtain Written Verification of the Title IX Religious Exemption

If your school has sincerely held beliefs with respect to sexual orientation and gender identity issues, it might be a good idea to seek written verification of the Title IX religious exemption for your institution.

Consider Adding Religious Freedom Protection Coverage

Lawsuits brought under Title VII or Title IX commonly claim damages for emotional injury, personal injury, or financial injury. General liability coverage typically only pays for bodily injury or property damage, which could create a coverage gap for a Christian school without the right coverages in place.

Another step your school can take is to obtain insurance coverage for potential lawsuits, including Title IX lawsuits or challenge. Not all coverage is equal, even among those insurance carriers that specialize in insurance for Christian ministries. To minimize the risk of a potential claim or lawsuit resulting from belief-based decisions and practices, Christian schools should carefully consider the applicability of Title IX and take appropriate steps to comply with the law.

Brotherhood Mutual offers broad Religious Freedom Protection Coverage that provides innovative protection to religious institutions in relation to their belief-based decisions and communication. This includes coverage for emotional injury claims that result from alleged discrimination, religious communication, or religious activities. The endorsement also offers funds to help respond to targeted actions by government agencies, as well as tax-exemption challenges.

In addition, for Christian schools, Brotherhood Mutual offers a Religious Freedom Protection Coverage Educational Institution Extension that protects faith-based educational institutions from threats related to:

Acts that would be considered discrimination under Title IX or any other applicable federal, state or local statute, ordinance, or law.
Your ability or your students’ ability to receive federal financial aid under Title IV.
Your ability or your students’ ability to receive financial aid or scholarships through federal, state, or local programs (other than Title IV).
Accreditation challenges.

Of course, coverage is determined at the time of a claim, subject to all terms, conditions, and exclusions.

Talk to your agent to determine whether your organization has insurance coverage for Title IX issues.

Originally posted February 12, 2020. Updated February, 2023

The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.

References
1. U.S. Department of Education, Office for Civil Rights. Notice of Proposed Rulemaking, Title IX Amendments, accessed December 10, 2019.
2. Summary of Major Provisions of the Department of Education’s Title IX Final Rule. Accessed May 8, 2020.
3. U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, April, 2015.
4. Title IX and Sex Discrimination, accessed December 10, 2019.
5. U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, April, 2015.
6. Exemptions from Title IX, accessed December 10, 2019.
7. U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, April, 2015.
8. U.S. Department of Justice, U.S. Department of Education, Joint Press Release and Dear Colleague Letter. May 13, 2016.
9. U.S. Department of Education, Office for Civil Rights. Q&A on Campus Sexual Misconduct, September, 2017.
10. U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, April, 2015.
11. Summary of Major Provisions of the Department of Education’s Title IX Final Rule. Accessed May 29, 2020.
12. Hunter et al. v. U.S. Department of Education et al., 6:21-cv-00474-AA (D. Or. 2023).
13. “Court Finds LGBTQ+ Students Harmed by Government but Provides No Legal Remedy.” Religious Exemption Accountability Project. theREAP.org Web. Accessed January 18, 2023.