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Hello, my name is Laila Wright. I am a graduate student at Angelo State University, working towards my master's degree in Student Development and Leadership. I also currently work full-time at Angelo State University in Housing and Residential Programs. In my role as an Area Coordinator, I help students transition into college by providing engagement opportunities through our hall programs and interactions with myself and my staff. As a live-in position, I also serve as a second level of emergency response for the residents and students living in the halls. The field of student affairs provides several resources and opportunities to students transitioning into college. The field of student affairs encompasses a large number of departments and focus areas put in place to help students receiving a post-secondary education to navigate their experiences within a university environment.

One area that has recently seen several changes and pending changes over the past couple of years on college campuses is sexual violence prevention and response. This legal guide seeks to provide information to young professionals both inside and outside of housing departments to educate them on how the Title IX office can be used both as a resource for students and how departments can work together to prevent sexual violence. It is crucial to understand how this topic can impact both professional staff members and students. By having a better understanding of the law and how it applied to students and student affairs professionals working in higher education will allow us to provide better support to students in times of need.

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Tracy Wright Baker
Director of Housing and Residential Programs and Title IX Team Member at Angelo State University

Speaking to Mrs. Baker allowed me to gain a broader perspective of how universities and departments work together to build an environment where students feel safe. The topic of sexual prevention and response is especially crucial to departments like Housing and Resident Programs because they are responsible for the on-campus living environment for 2,000+ students in which college students live and interact with one another. As a department of mandatory reporters (including their student staff), they must build an environment where students are safe and that as a department, they are attentive to that safety. Further stating that court cases and their decision have a significant impact on the department and students. Saying that they "they help shape how we the institution interact with students and students involved" (T. W. Baker, personal communication, December 2, 2019).

Three Best Practices Include:

Early Education - Through the Title IX office students are required to complete a two-part Sexual Assault Prevention, "intended to educate students about healthy relationships, affirmative consent, good communication, and empowers students to become active bystanders." (AlcoholEDU and Sexual Assault Prevention, 2019).

Consistent Training - As a mandatory member of the Title IX Team, providing consistent and on going training for members.

Resources - Providing students with clear and available resources through the Title IX office, Counseling Services and outside campus partners.

Mrs. Baker also pointed out that over the recent years, as the pendulum has swung between anonymous victims to the blindness of the rights of the perpetrator, she has begun to see it turn back towards the middle (T. W. Baker, personal communication, December 2, 2019). As the proposed rules on Title IX and Sexual Assault are set to change again it is important institutions work towards not only implementing the changes but also educating students on what has changed.

References
AlcoholEDU and sexual assault prevention. (2019, December 3). Retrieved from https://www.angelo.edu/services/title-ix/alcoholedu-and-haven.php
Baker, T. W. (2019, December 2) Personal Interview

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ATIXA'S OCR REGS WEBINAR REVIEW SERIES
On the ATIXA website, several resources cover the issue of Title IX, including both Pre K-12 and post-secondary education. Here you will find some training resources, including two webinars covering a regulation overview and effective commenting. The first webinar provides an overview of the proposed regulations. It provides an overview of the Title IX Statute and the incoming changing. Both webinars are free.

References
ATIXA Webinars. (2019, December 8). Retrieved from https://atixa.org/resources/free-resources/free-webinars/

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Are you concerned about the new proposed OCR regulations and how they will impact your work in the field of Title IX? Are you interested in learning how to interpret the often unclear and confusing language that is listed in the new regulations? How is OCR going to enforce these new changes for your institution? How should you go about implementing the hearing panel apparatuses and training requirements?

ATIXA is hosting a series of free live webinars to cover the regulations and changes coming from the OCR, including Q&A from our membership. Our first free webinar is designed to provide our members with an overview of the regulations and substantive areas for which ATIXA will continue to stand. The second webinar will discuss effective commenting and proposed policy/process revisions and changes. Each webinar will be approximately 60 minutes in length. Please sign up for each webinar separately below. If you are unable to attend, a recording of each webinar will be made available to members following the webinars.
Webinar 1: Regulations Overview
Webinar 2: Effective Commenting
Recorded Tuesday, January 15, 2019 from 12pm-1pm ET Recorded Monday, January 14, 2019 from 4pm-5pm ET
ATIXA leadership hosted a free Q&A session on the recent 6th Circuit rulings and the anticipated impact on Title IX processes and procedures. A recording is available below.

Presenters: Brett A. Sokolow, J.D., ATIXA President and Saundra K. Schuster, J.D., ATIXA Advisory Board Member

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Are you concerned about the new proposed OCR regulations and how they will impact your work in the field of Title IX? Are you interested in learning how to interpret the often unclear and confusing language that is listed in the new regulations? How is OCR going to enforce these new changes for your institution?

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Slide #4 Current Events - States Wade Into Title IX Debate

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Slide #4 Current Events - States Wade Into Title IX Debate

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Texas Legislature passes a flurry of bills that will apply more pressure on colleges to address campus-based sexual harassment and assault

Colleges must provide more resources to students and survivors of sexual assault

The implementation of the requirement of institutions making a note on student transcripts of they are asked to leave for nonacademic reasons

The Baylor Effect - has been a push for lawmakers to take strict action on campus sexual misconduct after the 2016 report of the mishandling of sexual assaults by Baylor football players, coach, and president.

New criminal penalties for campus officials who fail to report sexual harassment or misconduct - this legislation passing without a single no vote

The law would also apply to student staff members who fail to report

While the overall goal of the bill is to protect survivors and prevent sexual assault. Some feel like there is a better approach.

References
Kreighbaum, A. (2019, June 19). States wade into title IX debate. Inside Higher Ed. Retrieved from https://www.insidehighered.com/news/2019/06/19/texas-legislation-contrasts-devos-take-campus-sexual-misconduct

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Last fall, Education Secretary Betsy DeVos released a proposed Title IX rule that many observers said would lead to fewer reports of sexual misconduct on college campuses.

The state Legislature in Texas, however, has taken a starkly different approach. In the legislative session that wrapped up last month, lawmakers passed a flurry of bills that will put new pressure on colleges to address campus-based sexual harassment and assault.

One demands that colleges provide more resources to students and survivors of sexual assault. Another requires institutions to annotate a student's transcript if they are asked to leave campus for a nonacademic reason.

The third, and perhaps most consequential, would add new criminal penalties for campus officials who fail to report sexual harassment or misconduct to their institution's Title IX coordinator -- to the consternation of civil libertarians and some survivor advocate groups. They would face a misdemeanor and termination by their institution. Colleges would also have to compile and publicly disclose those reports. Institutions that fail to do so could also face fines of up to $2 million from the state's higher ed coordinating board.

Texas governor Greg Abbott, a Republican, signed all three bills into law over the past week after each of them passed both statehouse chambers by wide margins. The mandatory reporting legislation passed without a single no vote.

The approach of that law in particular is being criticized by civil libertarians, who said it defines harassment in an overly broad manner and threatens due process. Advocates for sexual assault survivors, however, said the punitive approach to accountability is misguided and doesn't address the substance of the problem on campuses.

No state has gone so far as to demand reporting of sexual misconduct on campuses. And lawmakers in other Republican-dominated states have advanced bills over the past year to restrict colleges' response to sexual assaults or to reflect the proposed Trump administration rule.

The new campus reporting law also tees up a potential conflict with requirements outlined in regulations crafted by DeVos, who is expected to issue a final rule later this year.

"There isn't any question that this is a distinct path from the approach taken under Obama and DeVos," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

Under guidance issued by the Obama administration, colleges were expected to investigate complaints where they "reasonably should" have known about misconduct. In practice, that meant instructors were expected to report incidents they became aware of. But the proposed Trump administration rule says colleges only are liable for looking into incidents when they have an "actual knowledge" of misconduct. Students would have to report to an official like a Title IX coordinator with clear formal responsibilities. But a disclosure to a professor wouldn't put a college on the hook for an investigation.

The new law in Texas goes the other direction.
The Baylor Effect
Campus sexual assault became a hot-button issue under the Obama administration, which pushed colleges to seriously address misconduct for the first time. And DeVos's decision to roll back federal guidance issued in 2011 and 2014 and to craft new federal regulations on campus-based sexual misconduct has helped elevate the issue for many state legislators.

In Texas, however, the Baylor University sexual assault scandal that eventually led to the ouster of Baylor's head football coach and president provided a special impetus for lawmakers to take tough action on campus sexual misconduct.

A 2016 report produced by the law firm Pepper Hamilton assigned much of the blame for mishandling of sexual assaults by Baylor football players to former president Ken Starr. Starr, the report said, failed "to provide consistent and meaningful engagement with Title IX." A series of stories by ESPN found that the university had sought to keep quiet a number of physical and sexual assaults committed primarily by football players.

The transcript notation law was crafted in response to another Baylor case, in which a former fraternity president withdrew from the university after he was accused of sexually assaulting another student at a party in 2016 and later transferred to the University of Texas at Dallas. The student, Jacob Anderson, faced sexual assault charges but pleaded to a lesser charge of unlawful restraint.

After a public uproar over Anderson's case last year, UT Dallas president Richard Benson complained that the university had no knowledge of the accusations against Anderson at Baylor.

A version of the campus reporting legislation introduced in the previous legislative session would have added criminal penalties not only for campus officials, but also for student employees who fail to report sexual misconduct. College groups did not actively oppose the legislation and higher education leaders are examining their institutions' policies to ensure they comply.

"It is critical that the public, including students and parents, are aware of any potential safety threats occurring on campuses," State Senator Joan Huffman, the law's author and a Republican from southeast Texas, told her colleagues during the session.

But advocates on campus misconduct issues fault the legislation for potential negative consequences and failures in its broad approach.

Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, called the Texas campus reporting law "egregiously problematic."

"This is a perfect recipe to create an environment that is devastating to both campus free speech and due process," he said.

FIRE had urged Abbott to veto the legislation.

Cohn said the law uses an overly broad definition of sexual harassment that's at odds with the more narrow definition adopted in the Trump administration's proposed Title IX rule. And he warned that attaching criminal penalties would lead campus officials to report minor incidents to protect themselves from individual liability.

The law directs colleges to designate officials with whom students could speak confidentially about sexual misconduct. But Cohn and other critics said that doesn't mitigate broader concerns about the language.

Laura Dunn, who founded the nonprofit SurvJustice and was instrumental in the crafting of federal guidance under the Obama administration, said she wasn't opposed to accountability measures for campus officials who fail to report misconduct.

"It's really going to come down to how schools implement it," said Dunn of the mandatory reporting requirements. "It definitely provides an incentive for schools to have very significant training."

But other survivor advocates rejected the approach of the legislation.

Jess Davidson, executive director of End Rape on Campus, said the campus reporting and transcript notation laws are solutions produced by well-meaning individuals who don't understand potential unintended consequences of the policy changes. Adding more accountability for individual officials and institutions won't seriously address sexual misconduct without broader changes to policies and resources for survivors. Those policies could include more training for first-year students, due process for alleged victims and accused students, and accommodations on campus for survivors.

"We can't just assume that if we add more accountability things will change," she said. "We know reporting rates are extremely low. That's because so many pieces of the system are broken."

Ashka Dighe, a University of Texas sophomore and vice president of the campus chapter of It's On Us, a national organization that seeks to end sexual assault, said she was impressed with the bipartisan focus on tackling campus sexual assault during the legislative session.

"The overall goal of the bill was to protect survivors and prevent instances of sexual assault from happening," she said. "I just think the way they approached this should have been different."

Rather than adding criminal penalties to hold employees responsible for reporting misconduct, Dighe said the Legislature should push colleges to provide more resources to students who experience assault or harassment.

The American Association of University Professors has opposed mandatory reporting requirements, including in comments submitted to the Education Department on the proposed Title IX rule last year.

"These kinds of policies have a strong negative impact on faculty members in particular because of the negative effects on the teaching and advising relationship they have with students," said Risa Lieberwitz, general counsel at AAUP.

Adding a criminal penalty for campus officials only exacerbates existing problems with the policy, Lieberwitz said.

Survivor advocates found more to like in the approach of another new law authored by State Senator Donna Howard, a Democrat from Austin, would mandate that colleges craft policies dealing with sexual harassment and assault, as well as dating violence and stalking. They would also have to lay out a process for reporting allegations and accommodations for victims. Davidson said by making small tweaks to various parts of the college system, the law could increase reporting without including tough penalties for individual campus officials.

Cohn of FIRE said that legislation also used overly broad definitions of harassment and said the procedural protections in the legislation were too sparse.

But Davidson said the law would have a positive impact by focusing on student experiences on campus rather than just an institution's response to misconduct.

"Criminalizing school employees is not the kind of accountability we're seeking when everything else in the system is set up to make it harder for survivors to report," she said.

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Texas legislation contrasts with DeVos take on campus sexual misconduct

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Last fall, Education Secretary Betsy DeVos released a proposed Title IX rule that many observers said would lead to fewer reports of sexual misconduct on college campuses. The state Legislature in Texas, however, has taken a starkly different approach.

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Slide #5 Current Events - Between a Rock and Title IX

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Slide #5 Current Events - Between a Rock and Title IX

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Former professor, Laura Jean Champagne, filed a lawsuit against Goodwin College in Connecticut for wrongful termination and retaliation after she refused to reveal the identity of a student who disclosed that another professor sexually harassed her.

After meeting with the Title IX coordinator and being approached by the provost, Champagne was told to make a formal incident report where she continued to leave the student's name out per the student request.

She continued to be pressured by administrators to disclose the student's name. Then a human resources employee asked her if she would reveal the name if she knew she was going to lose her job over it.

Champagne pointed out that the university allows anonymous complaints. However, the university stated that she could be an anonymous reporter but that she would still have to reveal the student's name. She didn't, and days later was terminated.

This case argues that professors are "responsible employees" under Title IX, so they do have to disclose what they know about reports of sexual harassment on campus. And with proper training mandatory reported being told to stop a student if they feel they are going to disclose information involving a Title IX issue and let them know they have to report everything they are told.

References
Flaherty, C. (2019, October 22). Between a rock and title IX. Inside Higher Ed. Retrieved from https://www.insidehighered.com/news/2019/10/22/professor-says-she-was-fired-refusing-disclose-victims-name

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A former professor of mathematics at Goodwin College in Connecticut says she was fired for refusing to reveal the identity of a student who disclosed that she'd been sexually harassed.

The professor, Laura Jean Champagne, filed a lawsuit against the college this month in a federal court, alleging wrongful termination and retaliation. The college says the complaint is misleading and that Goodwin works every day to ensure the safety of everyone on campus. Champagne's claims nevertheless highlight how Title IX of the Education Amendments of 1972 defends students against harassment -- but doesn't necessarily protect their identities, or those people on campus who seek to protect them.

Champagne, who began an assistant professorship in math at Goodwin in 2018, says she became friendly with a student in two of her classes and regularly met with the student to work over lunch or coffee. At one such meeting, Champagne says the student told her that an unnamed professor offered to give her better grades if she became his "mistress." The student also allegedly said the same professor had offered other students a similar arrangement.

"Shocked and concerned" by the revelation, Champagne says she begged the student to name the professor so that she could report him. But the student allegedly refused, "adamantly." The student also told Champagne that she did not want the information, or her name, reported, according to the lawsuit.

Unsure how to respond, Champagne contacted a campus administrator and asked for the name of the campus's Title IX coordinator. A few days later, at a May professional development event, Goodwin's provost allegedly approached Champagne to ask her why she wanted to know about the Title IX coordinator. Champagne allegedly shared what she knew -- but not the student's identity.

At a subsequent meeting with the college's head of human resources, Champagne was allegedly pressured to reveal the student's name. But she said the student did not want her identity revealed, and that she couldn't violate that trust. Champagne did offer to ask the student whether she'd reconsider or share additional details, however.

Goodwin encouraged Champagne to do so, according to the complaint. But the student still "adamantly refused and unambiguously conveyed" that she "did not wish to be identified in connection with her initial complaint concerning her professor's sexual harassment of her."

In June, Goodwin told Champagne to make a formal incident report. She complied, leaving out the student's name.

The next month, Champagne says, she was again pressured during a meeting with various administrators to disclose the name of the student. And again she said she couldn't violate the student's wishes. A human resources employee allegedly then verbally asked Champagne what the student would say "if she knew you were going to lose your job."

Champagne says she responded by saying that the college allows anonymous complaints, and that it could attempt to remedy Title IX violations by offering more training on sexual harassment. Some present at the meeting allegedly agreed that Champagne herself could be an anonymous reporter -- but that she'd still have to reveal the student's name.

She didn't. Days later, according to the lawsuit, Goodwin terminated Champagne's employment. Her federal lawsuit against the college alleges retaliation in violation of Title IX and wrongful termination. Regarding the latter count, the lawsuit says that Champagne "spoke out as a citizen on a matter of public concern when she raised concerns about widespread sexual harassment" at Goodwin. She's seeking monetary and punitive damages.

The college said in a statement that it won't "specifically comment on pending litigation, but the complaint is inaccurate, incomplete and misleading. We believe this lawsuit has no merit and plan to defend against it vigorously."

Generally, Goodwin said that it has a "zero-tolerance policy regarding sexual harassment of any kind." That includes "any person whose actions result in protecting the identity of an alleged predator." And Goodwin has "consistently demonstrated" its commitment "to doing everything in our power to ensure every student, faculty and staff member feels safe and secure."

Champagne's attorney, Michael Reilly, was not immediately available for comment or to provide additional information about the case Monday. But taken at face value, the complaint raises a number of issues about confidentiality and reporting sexual harassment.
Title IX: Law and Spirit
Michael Dolce, an attorney with Cohen Milstein and chair of its sexual abuse practice group, said that Champagne at least appears to stand a good chance of winning her case. But that doesn't mean that professors are supposed to protect the identity of student accusers, he said. That's because professors are "responsible employees" under Title IX, meaning they do in fact have to disclose what they know about reports of sexual harassment on their campuses.

Yet that's assuming that all professors and other responsible employees are properly trained in how to handle misconduct reports. With that proper training, he said, professors would know that when a student starts to disclose abuse, they are supposed to stop the student and gently explain their obligation as responsible employees to share all they know about Title IX violations with the relevant office.

It's unclear from the complaint itself if Champagne did have that training. But details about it suggest that perhaps she didn't, Dolce said, such as the fact that Champagne needed to email someone to find out who the Title IX coordinator was.

What if a student blurts out a disclosure before even a trained professor can explain what it means to be a responsible employee? Dolce explained that that's something of a gray area. But, in general, he said federal guidance regarding Title IX suggests that student confidentiality must be breached in cases of sexual violence, such as an assault or attempted assault. That's because the alleged offender presents an immediate safety threat to the greater campus community.

Yet in cases like Champagne's, Dolce said, where the harassment was nonviolent, quid pro quo -- however abhorrent -- colleges may take a bit more time to address the problem in ways that don't breach student confidentiality. Goodwin was right to tell Champagne to circle back to the student and ask again if she'd be willing to name the professor. But it could have done more.

Given that several students were allegedly verbally offered grades in exchange for sexual favors at Goodwin, for example, Dolce said that the college could have sent out innocuous-sounding mass email reminding students that harassment, including quid pro quo harassment, is illegal and should be reported. Such an email, of course, must include information on where and how to make reports, including anonymous ones.

Where confidentiality may be preserved, it should be, as "you don't want to discourage future reporting by saying, 'We're not going to honor your confidentiality,'" Dolce said. "It's critical in dealing with survivors of sexual harassment or sexual violence that we minimize violations of privacy."

Dolce said he didn't fault the provost for initially asking Champagne what the Title IX case was about and generally becoming involved. The "universe" of actors in a sexual harassment case extends beyond just the Title IX office, he said. But one of the most "disturbing" allegations in Champagne's complaint was the "wedge" some administrators appeared to be willing to put between the student and a trusted professor. Dolce cited the suggestion that Champagne imagine how the student would feel if she knew Champagne's job was on the line -- which apparently it was.

"That is really putting the student in a difficult situation," Dolce said, especially "within the context of a Title IX case."

Erin Buzuvis, a professor of law at Western New England University and an expert on Title IX, said via email that there may indeed be some gray area between sexual harassment and violence in terms of the need to breach student confidentiality. But reading the case somewhat differently from Dolce, she said that that's only if college policy defines reportable sexual misconduct in a way that excludes quid pro quo. Otherwise, Buzuvis said, everything -- including names -- needs to be reported by responsible employees.

Goodwin's Title IX webpage notes that faculty and staff members are "responsible employees," and that "notice to them is official notice to the institution." Faculty and staff members "will keep your information private, but they are obligated to report instances of sexual misconduct to the Title IX coordinator for investigation."

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Professor says she was fired for refusing to disclose a victim's name

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A former professor of mathematics at Goodwin College in Connecticut says she was fired for refusing to reveal the identity of a student who disclosed that she'd been sexually harassed. The professor, Laura Jean Champagne, filed a lawsuit against the college this month in a federal court, alleging wrongful termination and retaliation.

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Slide #6 Original Source of Law - Administrative Law

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Slide #6 Original Source of Law - Administrative Law

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Dear Colleague Letter
Source of Law: Federal Administrative Law
Citation: Ali, R. (2011, April 4) Dear Colleague Letter:Washington, DC: U.s Department of Education, Office for Civil Rights. Retrieved from https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html

Provides guidance and examples about key Title IX requirements and how they relate to sexual violence,

Discusses proactive efforts school can take to prevent sexual violence.

Discusses the relationship between Title IX, FERPA, and the Clery Act.

Provides enforcement strategies that schools may use to respond to sexual violence.

List a school's obligations under Title IX regarding sexual violence.

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OFFICE OF THE ASSISTANT SECRETARY

April 4, 2011

Dear Colleague:

Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime.
Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter "schools" or "recipients") in meeting these obligations, this letter
sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.

The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college.3 The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college.4 According to data collected under the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f), in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act.5 This problem is not limited to college. During the 2007-2008 school year, there were 800 reported incidents of rape and attempted rape and 3,800 reported incidents of other sexual batteries at public high schools.6 Additionally, the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population.7 The Department is deeply concerned about this problem and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school's programs and activities.
This letter begins with a discussion of Title IX's requirements related to student-on-student sexual harassment, including sexual violence, and explains schools' responsibility to take immediate and effective steps to end sexual harassment and sexual violence. These requirements are discussed in detail in OCR's Revised Sexual Harassment Guidance issued in 2001 (
harassment and violence also are concerns for school districts. The Title IX obligations discussed in this letter apply equally to school districts unless otherwise noted.
Title IX Requirements Related to Sexual Harassment and Sexual Violence Schools' Obligations to Respond to Sexual Harassment and Sexual Violence
sponsored by the school at another location, or elsewhere. For example, Title IX protects a student who is sexually assaulted by a fellow student during a school-sponsored field trip.11

If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.12 Schools also are required to publish a notice of nondiscrimination and to adopt and publish grievance procedures. Because of these requirements, which are discussed in greater detail in the following section, schools need to ensure that their employees are trained so that they know to report harassment to appropriate school officials, and so that employees with the authority to address harassment know how to respond properly. Training for employees should include practical information about how to identify and report sexual harassment and violence. OCR recommends that this training be provided to any employees likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.

Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school's education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. For example, if a student alleges that he or she was sexually assaulted by another student off school grounds, and that upon returning to school he or she was taunted and harassed by other students who are the alleged perpetrator's friends, the school should take the earlier sexual assault into account in determining whether there is a sexually hostile environment. The school also should take steps to protect a student who was assaulted off campus from further sexual harassment or retaliation from the perpetrator and his or her associates.
Regardless of whether a harassed student, his or her parent, or a third party files a complaint under the school's grievance procedures or otherwise requests action on the student's behalf, a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. As discussed later in this letter, the school's Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct. The specific steps in a school's
As discussed in the 2001 Guidance, if the complainant continues to ask that his or her name or other identifiable information not be revealed, the school should evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students. Thus, the school may weigh the request for confidentiality against the following factors: the seriousness of the alleged harassment; the complainant's age; whether there have been other harassment complaints about the same individual; and the alleged harasser's rights to receive information about the allegations if the information is maintained by the school as an "education record" under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. Part 99.15 The school should inform the complainant if it cannot ensure confidentiality. Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence. Examples of such steps are discussed later in this letter.
Compliance with Title IX, such as publishing a notice of nondiscrimination, designating an employee to coordinate Title IX compliance, and adopting and publishing grievance procedures, can serve as preventive measures against harassment. Combined with education and training programs, these measures can help ensure that all students and employees recognize the
13 In states with mandatory reporting laws, schools may be required to report certain incidents to local law enforcement or child protection agencies.
14 Schools should refer to the 2001 Guidance for additional information on confidentiality and the alleged perpetrator's due process rights.
15 For example, the alleged harasser may have a right under FERPA to inspect and review portions of the complaint that directly relate to him or her. In that case, the school must redact the complainant's name and other identifying information before allowing the alleged harasser to inspect and review the sections of the complaint that relate to him or her. In some cases, such as those where the school is required to report the incident to local law enforcement or other officials, the school may not be able to maintain the complainant's confidentiality.

nature of sexual harassment and violence, and understand that the school will not tolerate such conduct. Indeed, these measures may bring potentially problematic conduct to the school's attention before it becomes serious enough to create a hostile environment. Training for administrators, teachers, staff, and students also can help ensure that they understand what types of conduct constitute sexual harassment or violence, can identify warning signals that may need attention, and know how to respond. More detailed information and examples of education and other preventive measures are provided later in this letter.
Procedural Requirements Pertaining to Sexual Harassment and Sexual Violence
Recipients of Federal financial assistance must comply with the procedural requirements outlined in the Title IX implementing regulations. Specifically, a recipient must:

locations throughout the school or campus and published in electronic and printed publications of general distribution that provide information to students and employees about the school's services and policies. The notice should be available and easily accessible on an ongoing basis.

Title IX does not require a recipient to adopt a policy specifically prohibiting sexual harassment or sexual violence. As noted in the 2001 Guidance, however, a recipient's general policy prohibiting sex discrimination will not be considered effective and would violate Title IX if, because of the lack of a specific policy, students are unaware of what kind of conduct constitutes sexual harassment, including sexual violence, or that such conduct is prohibited sex discrimination. OCR therefore recommends that a recipient's nondiscrimination policy state that prohibited sex discrimination covers sexual harassment, including sexual violence, and that the policy include examples of the types of conduct that it covers.

(B) Title IX Coordinator

and findings as necessary for the Title IX investigation, so long as it does not compromise the criminal investigation.

(C) Grievance Procedures

The Title IX regulations require all recipients to adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints.21 The grievance procedures must apply to sex discrimination complaints filed by students against school employees, other students, or third parties.
Prompt and Equitable Requirements
As stated in the 2001 Guidance, OCR has identified a number of elements in evaluating whether a school's grievance procedures provide for prompt and equitable resolution of sexual harassment complaints. These elements also apply to sexual violence complaints because, as explained above, sexual violence is a form of sexual harassment. OCR will review all aspects of a school's grievance procedures, including the following elements that are critical to achieve compliance with Title IX:

Notice to students, parents of elementary and secondary students, and employees of the grievance procedures, including where complaints may be filed;

Application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties;

Adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence;

Designated and reasonably prompt time frames for the major stages of the complaint process;

Notice to parties of the outcome of the complaint;24 and

An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school's internal Title IX investigation. For instance, if a complainant wants to file a police report, the school should not tell the complainant that it is working toward a solution and instruct, or ask, the complainant to wait to file the report.

As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school's procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Like Title IX,

Title VII prohibits discrimination on the basis of sex.26 OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR's Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard ( i.e., it is more likely than not that sexual harassment or violence occurred). The "clear and convincing" standard ( i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

26 See, e.g., Desert Palace, Inc. v. Costa,539 U.S. 90, 99 (2003) (noting that under the "conventional rule of civil litigation," the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins,490 U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex discrimination case) (plurality opinion); id. at 260 (White, J., concurring in the judgment); id. at 261 (O'Connor, J., concurring in the judgment). The 2001 Guidance noted (on page vi) that "[w]hile Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX." See also Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) ("We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.").
27 OCR's Case Processing Manual is available on the Department's Web site, at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.
28 The Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act of 1964. See 34 C.F.R. § 106.71 ("The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference."). The Title VI regulations apply the Administrative Procedure Act to administrative hearings required prior to termination of Federal financial assistance and require that termination decisions be "supported by and in accordance with the reliable, probative and substantial evidence." 5 U.S.C. § 556(d). The Supreme Court has interpreted "reliable, probative and substantial evidence" as a direction to use the preponderance standard. See Steadman v. SEC, 450 U.S. 91, 98-102 (1981).
29 Access to this information must be provided consistent with FERPA. For example, if a school introduces an alleged perpetrator's prior disciplinary records to support a tougher disciplinary penalty, the complainant would not be allowed access to those records. Additionally, access should not be given to privileged or confidential information. For example, the alleged perpetrator should not be given access to communications between the complainant and a counselor or information regarding the complainant's sexual history.

statement without also allowing the complainant to review the alleged perpetrator's statement.

While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.

All persons involved in implementing a recipient's grievance procedures ( e.g., Title IX coordinators, investigators, and adjudicators) must have training or experience in handling complaints of sexual harassment and sexual violence, and in the recipient's grievance procedures. The training also should include applicable confidentiality requirements. In sexual violence cases, the fact-finder and decision-maker also should have adequate training or knowledge regarding sexual violence.30 Additionally, a school's investigation and hearing processes cannot be equitable unless they are impartial. Therefore, any real or perceived conflicts of interest between the fact-finder or decision-maker and the parties should be disclosed.

occurred in a classroom during school hours with a single complainant.

(D) Notice of Outcome

Both parties must be notified, in writing, about the outcome of both the complaint and any appeal,31 i.e., whether harassment was found to have occurred. OCR recommends that schools provide the written determination of the final outcome to the complainant and the alleged perpetrator concurrently. Title IX does not require the school to notify the alleged perpetrator of the outcome before it notifies the complainant.

disciplinary proceeding against the alleged perpetrator, regardless of whether the institution concluded that a violation was committed.35 Additionally, a postsecondary institution may disclose to anyone-not just the alleged victim-the final results of a disciplinary proceeding if it determines that the student is an alleged perpetrator of a crime of violence or a non-forcible sex offense, and, with respect to the allegation made, the student has committed a violation of the institution's rules or policies.36

Postsecondary institutions also are subject to additional rules under the Clery Act. This law, which applies to postsecondary institutions that participate in Federal student financial aid programs, requires that "both the accuser and the accused must be informed of the outcome37 of any institutional disciplinary proceeding brought alleging a sex offense."38 Compliance with this requirement does not constitute a violation of FERPA. Furthermore, the FERPA limitations on redisclosure of information do not apply to information that postsecondary institutions are required to disclose under the Clery Act.39 Accordingly, postsecondary institutions may not require a complainant to abide by a nondisclosure agreement, in writing or otherwise, that would prevent the redisclosure of this information.
Steps to Prevent Sexual Harassment and Sexual Violence and Correct its Discriminatory Effects on the Complainant and Others
discussion of what constitutes sexual harassment and sexual violence, the school's policies and disciplinary procedures, and the consequences of violating these policies.

OCR also recommends that schools develop specific sexual violence materials that include the schools' policies, rules, and resources for students, faculty, coaches, and administrators. Schools also should include such information in their employee handbook and any handbooks that student athletes and members of student activity groups receive. These materials should include where and to whom students should go if they are victims of sexual violence. These materials also should tell students and school employees what to do if they learn of an incident of sexual violence. Schools also should assess student activities regularly to ensure that the practices and behavior of students do not violate the schools' policies against sexual harassment and sexual violence.
Remedies and Enforcement
Schools should be aware that complaints of sexual harassment or violence may be followed by retaliation by the alleged perpetrator or his or her associates. For instance, friends of the alleged perpetrator may subject the complainant to name-calling and taunting. As part of their Title IX obligations, schools must have policies and procedures in place to protect against retaliatory harassment. At a minimum, schools must ensure that complainants and their parents, if appropriate, know how to report any subsequent problems, and should follow-up with complainants to determine whether any retaliation or new incidents of harassment have occurred.

When OCR finds that a school has not taken prompt and effective steps to respond to sexual harassment or violence, OCR will seek appropriate remedies for both the complainant and the broader student population. When conducting Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients. When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation.

Schools should proactively consider the following remedies when determining how to respond to sexual harassment or violence. These are the same types of remedies that OCR would seek in its cases.

arranging for the complainant to re-take a course or withdraw from a class without penalty, including ensuring that any changes do not adversely affect the complainant's academic record; and

reviewing any disciplinary actions taken against the complainant to see if there is a causal connection between the harassment and the misconduct that may have resulted in the complainant being disciplined.43

Remedies for the broader student population might include, but are not limited to:
Counseling and Training

offering counseling, health, mental health, or other holistic and comprehensive victim services to all students affected by sexual harassment or sexual violence, and notifying students of campus and community counseling, health, mental health, and other student services;

designating an individual from the school's counseling center to be "on call" to assist victims of sexual harassment or violence whenever needed;

training the Title IX coordinator and any other employees who are involved in processing, investigating, or resolving complaints of sexual harassment or sexual violence, including providing training on:

the school's Title IX responsibilities to address allegations of sexual harassment or violence

how to conduct Title IX investigations

information on the link between alcohol and drug abuse and sexual harassment or violence and best practices to address that link;

training all school law enforcement unit personnel on the school's Title IX responsibilities and handling of sexual harassment or violence complaints;

training all employees who interact with students regularly on recognizing and appropriately addressing allegations of sexual harassment or violence under Title IX; and

informing students of their options to notify proper law enforcement authorities, including school and local police, and the option to be assisted by school employees in notifying those authorities.

what the school will do to respond to allegations of sexual harassment or violence, including the interim measures that can be taken

requiring the Title IX coordinator to communicate regularly with the school's law enforcement unit investigating cases and to provide information to law enforcement unit personnel regarding Title IX requirements;44

requiring the Title IX coordinator to review all evidence in a sexual harassment or sexual violence case brought before the school's disciplinary committee to determine whether the complainant is entitled to a remedy under Title IX that was not available through the disciplinary committee;45

requiring the school to create a committee of students and school officials to identify strategies for ensuring that students:

know the school's prohibition against sex discrimination, including sexual harassment and violence

recognize sex discrimination, sexual harassment, and sexual violence when they occur

understand how and to whom to report any incidents

know the connection between alcohol and drug abuse and sexual harassment or violence

feel comfortable that school officials will respond promptly and equitably to reports of sexual harassment or violence;

issuing new policy statements or other steps that clearly communicate that the school does not tolerate sexual harassment and violence and will respond to any incidents and to any student who reports such incidents; and

revising grievance procedures used to handle sexual harassment and violence complaints to ensure that they are prompt and equitable, as required by Title IX.

School Investigations and Reports to OCR

conducting periodic assessments of student activities to ensure that the practices and behavior of students do not violate the school's policies against sexual harassment and violence;

investigating whether any other students also may have been subjected to sexual harassment or violence;

investigating whether school employees with knowledge of allegations of sexual harassment or violence failed to carry out their duties in responding to those allegations;

conducting, in conjunction with student leaders, a school or campus "climate check" to assess the effectiveness of efforts to ensure that the school is free from sexual harassment and violence, and using the resulting information to inform future proactive steps that will be taken by the school; and

submitting to OCR copies of all grievances filed by students alleging sexual harassment or violence, and providing OCR with documentation related to the investigation of each complaint, such as witness interviews, investigator notes, evidence submitted by the parties, investigative reports and summaries, any final disposition letters, disciplinary records, and documentation regarding any appeals.
Conclusion
The Department is committed to ensuring that all students feel safe and have the opportunity to benefit fully from their schools' education programs and activities. As part of this commitment, OCR provides technical assistance to assist recipients in achieving voluntary compliance with Title IX.

If you need additional information about Title IX, have questions regarding OCR's policies, or seek technical assistance, please contact the OCR enforcement office that serves your state or territory. The list of offices is available at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Additional information about addressing sexual violence, including victim resources and information for schools, is available from the U.S. Department of Justice's Office on Violence Against Women (OVW) at http://www.ovw.usdoj.gov/.46

Thank you for your prompt attention to this matter. I look forward to continuing our work together to ensure that all students have an equal opportunity to learn in a safe and respectful school climate.

Sincerely,

/s/

Russlynn Ali

Assistant Secretary for Civil Rights

44 Any personally identifiable information from a student's education record that the Title IX coordinator provides to the school's law enforcement unit is subject to FERPA's nondisclosure requirements.
45 For example, the disciplinary committee may lack the power to implement changes to the complainant's class schedule or living situation so that he or she does not come in contact with the alleged perpetrator.
Development of Materials and Implementation of Policies and Procedures

developing materials on sexual harassment and violence, which should be distributed to students during orientation and upon receipt of complaints, as well as widely posted throughout school buildings and residence halls, and which should include:

what constitutes sexual harassment or violence

what to do if a student has been the victim of sexual harassment or violence

contact information for counseling and victim services on and off school grounds

how to file a complaint with the school

how to contact the school's Title IX coordinator

providing an escort to ensure that the complainant can move safely between classes and activities;

ensuring that the complainant and alleged perpetrator do not attend the same classes;

moving the complainant or alleged perpetrator to a different residence hall or, in the case of an elementary or secondary school student, to another school within the district;

providing counseling services;

providing medical services;

providing academic support services, such as tutoring;

41 The Clery Act requires postsecondary institutions to develop and distribute a statement of policy that informs students of their options to notify proper law enforcement authorities, including campus and local police, and the option to be assisted by campus personnel in notifying such authorities. The policy also must notify students of existing counseling, mental health, or other student services for victims of sexual assault, both on campus and in the community. 20 U.S.C. §§ 1092(f)(8)(B)(v)-(vi).
42 Some of these remedies also can be used as interim measures before the school's investigation is complete.

As discussed above, if a school determines that sexual harassment that creates a hostile environment has occurred, it must take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects. In addition to counseling or taking disciplinary action against the harasser, effective corrective action may require remedies for the complainant, as well as changes to the school's overall services or policies. Examples of these actions are discussed in greater detail below.

Title IX requires a school to take steps to protect the complainant as necessary, including taking interim steps before the final outcome of the investigation. The school should undertake these steps promptly once it has notice of a sexual harassment or violence allegation. The school should notify the complainant of his or her options to avoid contact with the alleged perpetrator and allow students to change academic or living situations as appropriate. For instance, the school may prohibit the alleged perpetrator from having any contact with the complainant pending the results of the school's investigation. When taking steps to separate the complainant and alleged perpetrator, a school should minimize the burden on the

40 The Department's Higher Education Center for Alcohol, Drug Abuse, and Violence Prevention (HEC) helps campuses and communities address problems of alcohol, other drugs, and violence by identifying effective strategies and programs based upon the best prevention science. Information on HEC resources and technical assistance can be found at www.higheredcenter.org.
Education and Prevention
In addition to ensuring full compliance with Title IX, schools should take proactive measures to prevent sexual harassment and violence. OCR recommends that all schools implement preventive education programs and make victim resources, including comprehensive victim services, available. Schools may want to include these education programs in their (1) orientation programs for new students, faculty, staff, and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches; and (4) school assemblies and "back to school nights." These programs should include a

35 34 C.F.R. § 99.31(a)(13). For purposes of 34 C.F.R. §§ 99.31(a)(13)-(14), disclosure of "final results" is limited to the name of the alleged perpetrator, any violation found to have been committed, and any sanction imposed against the perpetrator by the school. 34 C.F.R. § 99.39.
36 34 C.F.R. § 99.31(a)(14).
37 For purposes of the Clery Act, "outcome" means the institution's final determination with respect to the alleged sex offense and any sanctions imposed against the accused. 34 C.F.R. § 668.46(b)(11)(vi)(B).
38 34 C.F.R. § 668.46(b)(11)(vi)(B). Under the Clery Act, forcible sex offenses are defined as any sexual act directed against another person forcibly or against that person's will, or not forcibly or against the person's will where the person is incapable of giving consent. Forcible sex offenses include forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling. Non-forcible sex offenses include incest and statutory rape. 34 C.F.R. Part 668, Subpt. D, App. A.
39 34 C.F.R. § 99.33(c).

Due to the intersection of Title IX and FERPA requirements, OCR recognizes that there may be confusion regarding what information a school may disclose to the complainant.32 FERPA generally prohibits the nonconsensual disclosure of personally identifiable information from a student's "education record." However, as stated in the 2001 Guidance, FERPA permits a school to disclose to the harassed student information about the sanction imposed upon a student who was found to have engaged in harassment when the sanction directly relates to the harassed student. This includes an order that the harasser stay away from the harassed student, or that the harasser is prohibited from attending school for a period of time, or transferred to other classes or another residence hall.33 Disclosure of other information in the student's "education record," including information about sanctions that do not relate to the harassed student, may result in a violation of FERPA.

31 As noted previously, "outcome" does not refer to information about disciplinary sanctions unless otherwise noted.
32 In 1994, Congress amended the General Education Provisions Act (GEPA), of which FERPA is a part, to state that nothing in GEPA "shall be construed to affect the applicability of title VI of the Civil Rights Act of 1964, title IX of Education Amendments of 1972, title V of the Rehabilitation Act of 1973, the Age Discrimination Act, or other statutes prohibiting discrimination, to any applicable program." 20 U.S.C. § 1221(d). The Department interprets this provision to mean that FERPA continues to apply in the context of Title IX enforcement, but if there is a direct conflict between the requirements of FERPA and the requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions. See 2001 Guidance at vii.
33 This information directly relates to the complainant and is particularly important in sexual harassment cases because it affects whether a hostile environment has been eliminated. Because seeing the perpetrator may be traumatic, a complainant in a sexual harassment case may continue to be subject to a hostile environment if he or she does not know when the perpetrator will return to school or whether he or she will continue to share classes or a residence hall with the perpetrator. This information also directly affects a complainant's decision regarding how to work with the school to eliminate the hostile environment and prevent its recurrence. For instance, if a complainant knows that the perpetrator will not be at school or will be transferred to other classes or another residence hall for the rest of the year, the complainant may be less likely to want to transfer to another school or change classes, but if the perpetrator will be returning to school after a few days or weeks, or remaining in the complainant's classes or residence hall, the complainant may want to transfer schools or change classes to avoid contact. Thus, the complainant cannot make an informed decision about how best to respond without this information.
34 Under the FERPA regulations, crimes of violence include arson; assault offenses (aggravated assault, simple assault, intimidation); burglary; criminal homicide (manslaughter by negligence); criminal homicide (murder and non-negligent manslaughter); destruction, damage or vandalism of property; kidnapping/abduction; robbery; and forcible sex offenses. Forcible sex offenses are defined as any sexual act directed against another person forcibly or against that person's will, or not forcibly or against the person's will where the victim is incapable of giving consent. Forcible sex offenses include rape, sodomy, sexual assault with an object, and forcible fondling. Non-forcible sex offenses are incest and statutory rape. 34 C.F.R. Part 99, App. A.

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

(C) Designated and Reasonably Prompt Time Frames

OCR will evaluate whether a school's grievance procedures specify the time frames for all major stages of the procedures, as well as the process for extending timelines. Grievance procedures should specify the time frame within which: (1) the school will conduct a full investigation of the complaint; (2) both parties receive a response regarding the outcome of the complaint; and (3) the parties may file an appeal, if applicable. Both parties should be given periodic status updates. Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment. For example, the resolution of a complaint involving multiple incidents with multiple complainants likely would take longer than one involving a single incident that

As noted in the 2001 Guidance, procedures adopted by schools will vary in detail, specificity, and components, reflecting differences in the age of students, school sizes and administrative structures, State or local legal requirements, and past experiences. Although OCR examines whether all applicable elements are addressed when investigating sexual harassment complaints, this letter focuses on those elements where our work indicates that more clarification and explanation are needed, including:

(A) Notice of the grievance procedures

The procedures for resolving complaints of sex discrimination, including sexual harassment, should be written in language appropriate to the age of the school's students, easily understood, easily located, and widely distributed. OCR recommends that the grievance procedures be prominently posted on school Web sites; sent electronically to all members of the school community; available at various locations throughout the school or campus; and summarized in or attached to major publications issued by the school, such as handbooks, codes of conduct, and catalogs for students, parents of elementary and secondary students, faculty, and staff.

(B) Adequate, Reliable, and Impartial Investigation of Complaints

OCR's work indicates that a number of issues related to an adequate, reliable, and impartial investigation arise in sexual harassment and violence complaints. In some cases, the conduct

Title IX does not require a recipient to provide separate grievance procedures for sexual harassment and sexual violence complaints. Therefore, a recipient may use student disciplinary procedures or other separate procedures to resolve such complaints. Any procedures used to adjudicate complaints of sexual harassment or sexual violence, including disciplinary procedures, however, must meet the Title IX requirement of affording a complainant a prompt and equitable resolution.22 These requirements are discussed in greater detail below. If the recipient relies on disciplinary procedures for Title IX compliance, the Title IX coordinator should review the recipient's disciplinary procedures to ensure that the procedures comply with the prompt and equitable requirements of Title IX.23

Grievance procedures generally may include voluntary informal mechanisms ( e.g., mediation) for resolving some types of sexual harassment complaints. OCR has frequently advised recipients, however, that it is improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator, and certainly not without appropriate involvement by the school ( e.g., participation by a trained counselor, a trained mediator, or, if appropriate, a teacher or administrator). In addition, as stated in the 2001 Guidance, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. Moreover, in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis. OCR recommends that recipients clarify in their grievance procedures that mediation will not be used to resolve sexual assault complaints.

21 Id. § 106.8(b). Title IX also requires recipients to adopt and publish grievance procedures for employee complaints of sex discrimination.
22 These procedures must apply to all students, including athletes. If a complaint of sexual violence involves a student athlete, the school must follow its standard procedures for resolving sexual violence complaints. Such complaints must not be addressed solely by athletics department procedures. Additionally, if an alleged perpetrator is an elementary or secondary student with a disability, schools must follow the procedural safeguards in the Individuals with Disabilities Education Act (at 20 U.S.C. § 1415 and 34 C.F.R. §§ 300.500-300.519, 300.530-300.537) as well as the requirements of Section 504 of the Rehabilitation Act of 1973 (at 34 C.F.R. §§ 104.35-104.36) when conducting the investigation and hearing.
23 A school may not absolve itself of its Title IX obligations to investigate and resolve complaints of sexual harassment or violence by delegating, whether through express contractual agreement or other less formal arrangement, the responsibility to administer school discipline to school resource officers or "contract" law enforcement officers. See 34 C.F.R. § 106.4.

The Title IX regulations require a recipient to notify all students and employees of the name or title and contact information of the person designated to coordinate the recipient's compliance with Title IX.20 The coordinator's responsibilities include overseeing all Title IX complaints and identifying and addressing any patterns or systemic problems that arise during the review of such complaints. The Title IX coordinator or designee should be available to meet with students as needed. If a recipient designates more than one Title IX coordinator, the notice should describe each coordinator's responsibilities ( e.g., who will handle complaints by students, faculty, and other employees). The recipient should designate one coordinator as having ultimate oversight responsibility, and the other coordinators should have titles clearly showing that they are in a deputy or supporting role to the senior coordinator. The Title IX coordinators should not have other job responsibilities that may create a conflict of interest. For example, serving as the Title IX coordinator and a disciplinary hearing board member or general counsel may create a conflict of interest.

Recipients must ensure that employees designated to serve as Title IX coordinators have adequate training on what constitutes sexual harassment, including sexual violence, and that they understand how the recipient's grievance procedures operate. Because sexual violence complaints often are filed with the school's law enforcement unit, all school law enforcement unit employees should receive training on the school's Title IX grievance procedures and any other procedures used for investigating reports of sexual violence. In addition, these employees should receive copies of the school's Title IX policies. Schools should instruct law enforcement unit employees both to notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and to report incidents of sexual violence to the Title IX coordinator if the complainant consents. The school's Title IX coordinator or designee should be available to provide assistance to school law enforcement unit employees regarding how to respond appropriately to reports of sexual violence. The Title IX coordinator also should be given access to school law enforcement unit investigation notes

20 Id. § 106.8(a).

These requirements apply to all forms of sexual harassment, including sexual violence, and are important for preventing and effectively responding to sex discrimination. They are discussed in greater detail below. OCR advises recipients to examine their current policies and procedures on sexual harassment and sexual violence to determine whether those policies comply with the requirements articulated in this letter and the 2001 Guidance. Recipients should then implement changes as needed.

(A) Notice of Nondiscrimination

The notice must be widely distributed to all students, parents of elementary and secondary students, employees, applicants for admission and employment, and other relevant persons. OCR recommends that the notice be prominently posted on school Web sites and at various

16 34 C.F.R. § 106.9.
17 Id. § 106.8(a).
18 Id. § 106.8(b).
19 Id. § 106.9(a).

11 Title IX also protects third parties from sexual harassment or violence in a school's education programs and activities. For example, Title IX protects a high school student participating in a college's recruitment program, a visiting student athlete, and a visitor in a school's on-campus residence hall. Title IX also protects employees of a recipient from sexual harassment. For further information about harassment of employees, see 2001 Guidance at n.1.
12 This is the standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking injunctive relief. See 2001 Guidance at ii-v, 12-13. The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629, 643, 648 (1999).

Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX.9

As explained in OCR's 2001 Guidance, when a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.10
Title IX protects students from sexual harassment in a school's education programs and activities. This means that Title IX protects students in connection with all the academic, educational, extracurricular, athletic, and other programs of the school, whether those programs take place in a school's facilities, on a school bus, at a class or training program
9 Title IX also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature. The Title IX obligations discussed in this letter also apply to gender-based harassment. Gender-based harassment is discussed in more detail in the 2001 Guidance, and in the 2010 Dear Colleague letter on Harassment and Bullying, which is available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
10 See, e.g., Jennings v. Univ. of N.C., 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006) (acknowledging that while not an issue in this case, a single incident of sexual assault or rape could be sufficient to raise a jury question about whether a hostile environment exists, and noting that courts look to Title VII cases for guidance in analyzing Title IX sexual harassment claims); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 259 n.4 (6th Cir. 2000) ("'[w]ithin the context of Title IX, a student's claim of hostile environment can arise from a single incident'" (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. Me. 1999))); Soper v. Hoben,195 F.3d 845, 855 (6th Cir. 1999) (explaining that rape and sexual abuse "obviously qualif[y] as...severe, pervasive, and objectively offensive sexual harassment"); see also Berry v. Chi. Transit Auth., 618 F.3d 688, 692 (7th Cir. 2010) (in the Title VII context, "a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment"); Turner v. Saloon, Ltd.,595 F.3d 679, 686 (7th Cir. 2010) (noting that "'[o]ne instance of conduct that is sufficiently severe may be enough,'" which is "especially true when the touching is of an intimate body part" (quoting Jackson v. Cnty. of Racine,474 F.3d 493, 499 (7th Cir. 2007))); McKinnis v. Crescent Guardian, Inc., 189 F. App'x 307, 310 (5th Cir. 2006) (holding that "'the deliberate and unwanted touching of [a plaintiff's] intimate body parts can constitute severe sexual harassment'" in Title VII cases (quoting Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005))).
2001 Guidance).8 This letter supplements the2001 Guidance by providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence. This letter concludes by discussing the proactive efforts schools can take to prevent sexual harassment and violence, and by providing examples of remedies that schools and OCR may use to end such conduct, prevent its recurrence, and address its effects. Although some examples contained in this letter are applicable only in the postsecondary context, sexual
3 CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT STUDY: FINAL REPORT xiii (Nat'l Criminal Justice Reference Serv., Oct. 2007), available at http://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf. This study also found that the majority of campus sexual assaults occur when women are incapacitated, primarily by alcohol. Id. at xviii.
4 Id. at 5-5.
5 U.S. Department of Education, Office of Postsecondary Education, Summary Crime Statistics (data compiled from reports submitted in compliance with the Clery Act), available at http://www2.ed.gov/admins/lead/safety/criminal2007-09.pdf. Under the Clery Act, forcible sex offenses are defined as any sexual act directed against another person, forcibly and/or against that person's will, or not forcibly or against the person's will where the victim is incapable of giving consent. Forcible sex offenses include forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling. 34 C.F.R. Part 668, Subpt. D, App. A.
6 SIMONE ROBERS ET AL., INDICATORS OF SCHOOL CRIME AND SAFETY: 2010 at 104 (U.S. Dep't of Educ. & U.S. Dep't of Justice, Nov. 2010), available at http://nces.ed.gov/pubs2011/2011002.pdf.
7 ERIKA HARRELL & MICHAEL R. RAND, CRIME AGAINST PEOPLE WITH DISABILITIES, 2008 (Bureau of Justice Statistics, U.S. Dep't of Justice, Dec. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/capd08.pdf.
8 The 2001 Guidance is available on the Department's Web site at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. This letter focuses on peer sexual harassment and violence. Schools' obligations and the appropriate response to sexual harassment and violence committed by employees may be different from those described in this letter. Recipients should refer to the 2001 Guidance for further information about employee harassment of students.
1 explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.2 Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape,
1 The Department has determined that this Dear Colleague Letter is a "significant guidance document" under the Office of Management and Budget's Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), available at: http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/012507
_good_guidance.pdf. OCR issues this and other policy guidance to provide recipients with information to assist them in meeting their obligations, and to provide members of the public with information about their rights, under the civil rights laws and implementing regulations that we enforce. OCR's legal authority is based on those laws and regulations. This letter does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations. If you are interested in commenting on this guidance, please send an e-mail with your comments to OCR@ed.gov, or write to us at the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW, Washington, DC 20202.
2 Use of the term "sexual harassment" throughout this document includes sexual violence unless otherwise noted. Sexual harassment also may violate Title IV of the Civil Rights Act of 1964 (42 U.S.C. § 2000c), which prohibits public school districts and colleges from discriminating against students on the basis of sex, among other bases. The U.S. Department of Justice enforces Title IV.

Last Modified: 09/25/2018

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Archived: Dear Colleague Letter from Assistant Secretary for Civil Rights Russlynn Ali. -- Printable

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'); document.write(' '); document.write(''); } OFFICE OF THE ASSISTANT SECRETARY April 4, 2011 Dear Colleague: Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important.

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Slide #7 Original Source of Law - Statutory Law

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Slide #7 Original Source of Law - Statutory Law

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Title IX of the Education Amendments of 1972
Source of Law: Federal Statutory Law
Citation: Title IX of the Education Amendments of 1972, 20 U.S.C Sec. 1681-1688. Retrieved from https://www.justice.gov/crt/title-ix-education-amendments-1972

Prohibits discrimination on the basis of sex in any federally funded education program or activity

Equity in athletics

Covers sexuals volience and the responsibilities schools have to respond to sexual violence in accordance with Title IX immediately

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TITLE 20 - Education CHAPTER 38 - DISCRIMINATION BASED ON SEX OR BLINDNESS

CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in sections 1132f-1, 1232, 3041, 3042 of this title; title 29 sections 206, 1577; title 42 sections 290cc-34, 300w-7, 300x-7, 708, 1988, 2000d-7, 10406.
Back to top of the page Sec. 1681. Sex
(a) Prohibition against discrimination; exceptions

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:

(1) Classes of educational institutions subject to prohibition

in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;

(2) Educational institutions commencing planned change in admissions

in regard to admissions to educational institutions, this section shall not apply

(A) for one year from June 23, 1972, nor for six years after June 23, 1972, in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education or

(B) for seven years from the date an educational institution begins the process of changing from being an institution which admits only students of only one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education, whichever is the later;

(3) Educational institutions of religious organizations with contrary religious tenets

this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;

(4) Educational institutions training individuals for military services or merchant marine

this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine;

(5) Public educational institutions with traditional and continuing admissions policy

in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex;

(6) Social fraternities or sororities; voluntary youth service organizations

this section shall not apply to membership practices -

(A) of a social fraternity or social sorority which is exempt from taxation under section 501(a) of title 26, the active membership of which consists primarily of students in attendance at an institution of higher education, or

(B) of the Young Men's Christian Association, Young Women's Christian Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations which are so exempt, the membership of which has traditionally been limited to persons of one sex and principally to persons of less than nineteen years of age;

(7) Boy or Girl conferences

this section shall not apply to -

(A) any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or

(B) any program or activity of any secondary school or educational institution specifically for -

(i) the promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or

(ii) the selection of students to attend any such conference;

(8) Father-son or mother-daughter activities at educational institutions

this section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex; and

(9) Institution of higher education scholarship awards in "beauty" pageants

this section shall not apply with respect to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received such award in any pageant in which the attainment of such award is based upon a combination of factors related to the personal appearance, poise, and talent of such individual and in which participation is limited to individuals of one sex only, so long as such pageant is in compliance with other nondiscrimination provisions of Federal law.

(b) Preferential or disparate treatment because of imbalance in participation or receipt of Federal benefits; statistical evidence of imbalance

Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: *Provided*, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.

(c)"Educational institution" defined

For purposes of this chapter an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department.

(Pub. L. 92-318, title IX, Sec. 901, June 23, 1972, 86 Stat. 373; Pub. L. 93-568, Sec. 3(a), Dec. 31, 1974, 88 Stat. 1862; Pub. L. 94-482, title IV, Sec. 412(a), Oct. 12, 1976, 90 Stat. 2234; Pub. L. 96-88, title III, Sec. 301(a)(1), title V, Sec. 507, Oct. 17, 1979, 93 Stat. 677, 692; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)

REFERENCES IN TEXT
This chapter, referred to in subsecs. (b) and (c), was in the original "this title", meaning title IX of Pub. L. 92-318 which enacted this chapter and amended sections 203 and 213 of Title 29, Labor, and sections 2000c, 2000c-6, 2000c-9, and 2000h-2 of Title 42, The Public Health and Welfare. For complete classification of title IX to the Code, see Tables.

AMENDMENTS
1986 - Subsec. (a)(6)(A). Pub. L. 99-514 substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954", which for purposes of codification was translated as "title 26" thus requiring no change in text. 1976 - Subsec. (a)(6) to (9). Pub. L. 94-482 substituted "this" for "This" in par. (6) and added pars. (7) to (9). 1974 - Subsec. (a)(6). Pub. L. 93-568 added par. (6). EFFECTIVE DATE OF 1976 AMENDMENT
Section 412(b) of Pub. L. 94-482 provided that: "The amendment made by subsection (a) [amending this section] shall take effect upon the date of enactment of this Act [Oct. 12, 1976]." EFFECTIVE DATE OF 1974 AMENDMENT
Section 3(b) of Pub. L. 93-568 provided that: "The provisions of the amendment made by subsection (a) [amending this section] shall be effective on, and retroactive to, July 1, 1972." SHORT TITLE OF 1988 AMENDMENT
Pub. L. 100-259, Sec. 1, Mar. 22, 1988, 102 Stat. 28, provided that: "This Act [enacting sections 1687 and 1688 of this title and section 2000d-4a of Title 42, The Public Health and Welfare, amending sections 706 and 794 of Title 29, Labor, and section 6107 of Title 42, and enacting provisions set out as notes under sections 1687 and 1688 of this title] may be cited as the 'Civil Rights Restoration Act of 1987'." TRANSFER OF FUNCTIONS
"Secretary" substituted for "Commissioner" in subsec. (a)(2) pursuant to sections 301(a)(1) and 507 of Pub. L. 96-88, which are classified to sections 3441(a)(1) and 3507 of this title and which transferred all functions of Commissioner of Education to the Secretary of Education. COORDINATION OF IMPLEMENTATION AND ENFORCEMENT OF PROVISIONS
For provisions relating to the coordination of implementation and enforcement of the provisions of this chapter by the Attorney General, see section 1-201(b) of Ex. Ord. No. 12250, Nov. 2, 1980, 45 F.R. 72995, set out as a note under section 2000d-1 of Title 42, The Public Health and Welfare. REGULATIONS; NATURE OF PARTICULAR SPORTS: INTERCOLLEGIATE ATHLETIC ACTIVITIES
Pub. L. 93-380, title VIII, Sec. 844, Aug. 21, 1974, 88 Stat. 612, provided that the Secretary prepare and publish, not more than 30 days after Aug. 21, 1974, proposed regulations implementing the provisions of this chapter regarding prohibition of sex discrimination in federally assisted programs, including reasonable regulations for intercollegiate athletic activities considering the nature of the particular sports. SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1682, 1687 of this title.
Back to top of the page Sec. 1682. Federal administrative enforcement; report to Congressional committees
Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: *Provided, however*, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.

(Pub. L. 92-318, title IX, Sec. 902, June 23, 1972, 86 Stat. 374.) DELEGATION OF FUNCTIONS
Functions of the President relating to approval of rules, regulations, and orders of general applicability under this section, were delegated to the Attorney General, see section 1-102 of Ex. Ord. No. 12250, Nov. 2, 1980, 45 F.R. 72995, set out as a note under section 2000d-1 of Title 42, The Public Health and Welfare. SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1683 of this title.
Back to top of the page Sec. 1683. Judicial review
Any department or agency action taken pursuant to section 1682 of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to section 1682 of this title, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with chapter 7 of title 5, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of section 701 of that title.

(Pub. L. 92-318, title IX, Sec. 903, June 23, 1972, 86 Stat. 374.) CODIFICATION
"'Section 1682 of this title"', where first appearing, was substituted for "section 1002" as conforming to intent of Congress as Pub. L. 92-318 was enacted without any section 1002 and subsequent text refers to "section 902", codified as "section 1682 of this title".
Back to top of the page Sec. 1684. Blindness or visual impairment; prohibition against discrimination
No person in the United States shall, on the ground of blindness or severely impaired vision, be denied admission in any course of study by a recipient of Federal financial assistance for any education program or activity, but nothing herein shall be construed to require any such institution to provide any special services to such person because of his blindness or visual impairment.

(Pub. L. 92-318, title IX, Sec. 904, June 23, 1972, 86 Stat. 375.)
Back to top of the page Sec. 1685. Authority under other laws unaffected
Nothing in this chapter shall add to or detract from any existing authority with respect to any program or activity under which Federal financial assistance is extended by way of a contract of insurance or guaranty.

(Pub. L. 92-318, title IX, Sec. 905, June 23, 1972, 86 Stat. 375.) REFERENCES IN TEXT
This chapter, referred to in text, was in the original "this title", meaning title IX of Pub. L. 92-318 which enacted this chapter and amended sections 203 and 213 of Title 29, Labor, and sections 2000c, 2000c-6, 2000c-9, and 2000h-2 of Title 42, The Public Health and Welfare. For complete classification of title IX to the Code, see Tables.
Back to top of the page Sec. 1686. Interpretation with respect to living facilities
Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.

(Pub. L. 92-318, title IX, Sec. 907, June 23, 1972, 86 Stat. 375.) REFERENCES IN TEXT
This chapter, referred to in text, was in the original "this title", meaning title IX of Pub. L. 92-318 which enacted this chapter and amended sections 203 and 213 of Title 29, Labor, and sections 2000c, 2000c-6, 2000c-9, and 2000h-2 of Title 42, The Public Health and Welfare. For complete classification of title IX to the Code, see Tables. This Act, referred to in text, is Pub. L. 92-318, June 23, 1972, 86 Stat. 235, as amended, known as the Education Amendments of 1972. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of this title and Tables.
Back to top of the page Sec. 1687. Interpretation of "program or activity"
For the purposes of this subchapter, the term "program or activity" and the term "program" mean all of the operations of -

(1)
(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)
(A) a college, university, or other postsecondary institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 198(a)(10) of the Elementary and Secondary Education Act of 1965), system of vocational education, or other school system;

(3)
(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship -

(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance, except that such term does not include any operation of an entity which is controlled by a religious organization if the application of section 1681 of this title to such operation would not be consistent with the religious tenets of such organization.

(Pub. L. 92-318, title IX, Sec. 908, as added Pub. L. 100-259, Sec. 3(a), Mar. 22, 1988, 102 Stat. 28.) REFERENCES IN TEXT
This chapter, referred to in text, was in the original "this title", meaning title IX of Pub. L. 92-318 which enacted this chapter and amended sections 203 and 213 of Title 29, Labor, and sections 2000c, 2000c-6, 2000c-9, and 2000h-2 of Title 42, The Public Health and Welfare. For complete classification of title IX to the Code, see Tables. FINDINGS OF CONGRESS
Section 2 of Pub. L. 100-259 provided that: "The Congress finds that -
"(1) certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], and title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.]; and

"(2) legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered."
CONSTRUCTION
Section 7 of Pub. L. 100-259 provided that: "Nothing in the amendments made by this Act [see Short Title of 1988 Amendment note under section 1681 of this title] shall be construed to extend the application of the Acts so amended [Education Amendments of 1972, Pub. L. 92-318, see Short Title of 1972 Amendment, set out as a note under section 1001 of this title, Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., and Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.] to ultimate beneficiaries of Federal financial assistance excluded from coverage before the enactment of this Act [Mar. 22, 1988]." ABORTION NEUTRALITY
This section not to be construed to force or require any individual or hospital or any other institution, program, or activity receiving Federal funds to perform or pay for an abortion, see section 8 of Pub. L. 100-259, set out as a note under section 1688 of this title.
Back to top of the page Sec. 1688. Neutrality with respect to abortion
Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion.

(Pub. L. 92-318, title IX, Sec. 909, as added Pub. L. 100-259, Sec. 3(b), Mar. 22, 1988, 102 Stat. 29.) REFERENCES IN TEXT
This chapter, referred to in text, was in the original "this title", meaning title IX of Pub. L. 92-318 which enacted this chapter and amended sections 203 and 213 of Title 29, Labor, and sections 2000c, 2000c-6, 2000c-9, and 2000h-2 of Title 42, The Public Health and Welfare. For complete classification of title IX to the Code, see Tables. CONSTRUCTION
This section not to be construed to extend application of Education Amendments of 1972, Pub. L. 92-318, to ultimate beneficiaries of Federal financial assistance excluded from coverage before Mar. 22, 1988, see section 7 of Pub. L. 100-259, set out as a note under section 1687 of this title. ABORTION NEUTRALITY
Section 8 of Pub. L. 100-259 provided that: "No provision of this Act or any amendment made by this Act [see Short Title of 1988 Amendment note under section 1681 of this title] shall be construed to force or require any individual or hospital or any other institution, program, or activity receiving Federal Funds [sic] to perform or pay for an abortion."

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Title Ix Of The Education Amendments Of 1972

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TITLE 20 - Education CHAPTER 38 - DISCRIMINATION BASED ON SEX OR BLINDNESS CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 1132f-1, 1232, 3041, 3042 of this title; title 29 sections 206, 1577; title 42 sections 290cc-34, 300w-7, 300x-7, 708, 1988, 2000d-7, 10406.

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Slide #8 Original Source of Law - Statutory Law

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Slide #8 Original Source of Law - Statutory Law

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S. B. No 212
Source of Law: State Statutory Law
Citation: Texas Senate Bill 212, 86(R), 2019. Retrieved from https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=86R&Bill=SB212

Reporting requirement for certain incidents of sexual harassment, sexual assault, dating violence, or stalking at certain public and private institutions of higher education; creating a criminal offense; authorizing administrative penalties.

Criminal Penalties for campus officials who fail to report sexual harassment or misconduct to their institutions Title IX coordinator, including mandatory student reports (student staff)

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Texas Legislature Online - 86(R) Text for SB 212

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Slide #9 Original Source of Law - Judicial Law

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Slide #9 Original Source of Law - Judicial Law

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Grove City College v. Bell, (1984)
Source of Law: Judicial Law
Citation: Grove City College v. Bell, 465 U.S. 555 (1984)

University was consistently refused state and federal financial assistance, but accepted students who received Basic Educational Opportunity Grants (BEOG's) which meant the university did receive assistance

The college refused to comply with the requirements of Title IX because of this and argued the provisions of Title IX violate the First Amendments rights of the College

"The Court held that there was no "substantive difference" between institutional assistance and aid received by a school through its students; Title IX coverage, the Court found, was triggered by the BEOG's. The Court noted that the assistance did not trigger institution wide coverage under the Amendments, however. Only the College's financial aid program was subject to the federal requirements. The Court concluded that prohibiting discrimination as a condition for federal assistance did not infringe upon the First Amendment rights of the College and that the school was free to end its participation in the grant program" (Grove City College v. Bell. n.d).

References
Grove City College v. Bell. (n.d.). Oyez. Retrieved December 8, 2019, from https://www.oyez.org/cases/1983/82-792

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U.S. Supreme Court
Grove City Coll. v. Bell, 465 U.S. 555 (1984)Grove City College v. Bell No. 82-792 Argued November 29, 1983 Decided February 28, 1984 465 U.S. 555 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Section 901(a) of Title IX of the Education Amendments of 1972 prohibits sex discrimination in "any education program or activity receiving Federal financial assistance," and § 902 provides that a recipient's compliance with regulations of a federal agency awarding assistance may be secured by termination of assistance "to the particular program, or part thereof, in which . . . noncompliance has been . . . found." Under the statute, a federally assisted program must be identified before Title IX coverage is triggered. Petitioner Grove City College (College), a private, coeducational, liberal arts college, accepts no direct federal assistance, nor does it participate in the Regular Disbursement System (RDS) of the Department of Education (Department), whereby amounts for federal grants to students are advanced to the institution, which then itself selects eligible students and calculates and distributes the grants. However, the College enrolls students who receive direct federal Basic Educational Opportunity Grants (BEOG's) under the Department's Alternative Disbursement System (ADS). The Department concluded that, under applicable regulations, the College was a "recipient" of "Federal financial assistance," and when the College refused to execute an Assurance of Compliance with Title IX's nondiscrimination provisions, as required by the regulations, the Department initiated administrative proceedings, which resulted in an order terminating assistance until the College executed an Assurance of Compliance and satisfied the Department that it was in compliance with the regulations. The College and four of its students then filed suit in Federal District Court, which held that the students' BEOG's constituted "Federal financial assistance" to the College, but that the Department could not terminate the students' aid because of the College's refusal to execute an Assurance of Compliance. The Court of Appeals reversed, holding that the Department could terminate the students' BEOG's to force the College to execute an Assurance of Compliance.

1. Title IX coverage is triggered because some of the College's students receive BEOG's to pay for their education. In view of the structure of the Education Amendments of 1972, the clear statutory language,

Page 465 U. S. 556

the legislative history (including postenactment history) showing Congress' awareness that the student assistant programs established by the Amendments significantly aided colleges and universities, and the longstanding administrative construction of the phrase "receiving Federal financial assistance" as including assistance to a student who uses it at a particular institution, Title IX coverage is not foreclosed merely because federal funds are granted to the students, rather than to the College's educational programs. Pp. -570.

2. However, the receipt of BEOG's by some of the College's students does not trigger institution-wide coverage under Title IX. In purpose and effect, BEOG's represent financial assistance to the College's own financial aid program, and it is that program that may properly be regulated under Title IX's nondiscrimination provision. Under the program-specific limitations of §§ 901 and 902, the College's choice of participating in the ADS, rather than the RDS, mechanism for administering the BEOG program neither expands nor contracts the breadth of the "program or activity receiving Federal financial assistance." The fact that federal funds eventually reach the College's general operating budget cannot subject it to institution-wide coverage. Pp. -574.

3. A refusal to execute a proper program-specific Assurance of Compliance warrants the Department's termination of federal assistance to the student financial aid program. The College's contention that termination must be preceded by a finding of actual discrimination is not supported by § 902's language. Pp. -575.

4. Requiring the College to comply with Title IX's prohibition of discrimination as a condition for its continued eligibility to participate in the BEOG program infringes no First Amendment rights of the College or its students. Pp. -576.

687 F.2d 684, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in all but Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, in which BURGER, C.J., and O'CONNOR, J., joined, post, p. . STEVENS, J., filed an opinion concurring in part and concurring in the result, post, p. . BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. .

Page 465 U. S. 557

JUSTICE WHITE delivered the opinion of the Court.

Section 901(a) of Title IX of the Education Amendments of 1972, Pub.L. 92-318, 86 Stat. 373, 20 U.S.C. § 1681(a), prohibits sex discrimination in "any education program or activity receiving Federal financial assistance," [ Footnote 1] and § 902 directs agencies awarding most types of assistance to promulgate regulations to ensure that recipients adhere to that prohibition. Compliance with departmental regulations may be secured by termination of assistance "to the particular program, or part thereof, in which . . . noncompliance has

Page 465 U. S. 558

been . . . found" or by "any other means authorized by law." § 902, 20 U.S.C. § 1682. [ Footnote 2]

This case presents several questions concerning the scope and operation of these provisions and the regulations established by the Department of Education. We must decide, first, whether Title IX applies at all to Grove City College, which accepts no direct assistance but enrolls students who receive federal grants that must be used for educational purposes. If so, we must identify the "education program or activity" at Grove City that is "receiving Federal financial assistance" and determine whether federal assistance to that

Page 465 U. S. 559

program may be terminated solely because the College violates the Department's regulations by refusing to execute an Assurance of Compliance with Title IX. Finally, we must consider whether the application of Title IX to Grove City infringes the First Amendment rights of the College or its students.
I
Petitioner Grove City College is a private, coeducational, liberal arts college that has sought to preserve its institutional autonomy by consistently refusing state and federal financial assistance. Grove City's desire to avoid federal oversight has led it to decline to participate, not only in direct institutional aid programs, but also in federal student assistance programs under which the College would be required to assess students' eligibility and to determine the amounts of loans, work-study funds, or grants they should receive. [ Footnote 3] Grove City has, however, enrolled a large number of students who receive Basic Educational Opportunity Grants (BEOG's), 20 U.S.C. § 1070a (1982 ed.), under the Department of Education's [ Footnote 4] Alternate Disbursement System (ADS). [ Footnote 5]

Page 465 U. S. 560

The Department concluded that Grove City was a "recipient" of "Federal financial assistance" as those terms are defined in the regulations implementing Title IX, 34 CFR §§ 106.2(g)(1), (h) (1982), [ Footnote 6] and, in July, 1977, it requested that the College execute the Assurance of Compliance required by 34 CFR § 106.4 (1983). If Grove City had signed the Assurance, it would have agreed to

"[c]omply, to the extent applicable to it, with Title IX . . . and all applicable requirements imposed by or pursuant to the Department's regulation . . . to the end that . . . no person in the United States shall, on the basis of sex, be . . . subjected to discrimination under any education program or activity for which [it] receives or benefits

Page 465 U. S. 561

from Federal financial assistance from the Department."

App. to Pet. for Cert. A-12 - A-127. [ Footnote 7] When Grove City persisted in refusing to execute an Assurance, the Department initiated proceedings to declare the College and its students ineligible to receive BEOG's. [ Footnote 8] The Administrative Law Judge held that the federal financial assistance received by Grove City obligated it to execute an Assurance of Compliance and entered an order terminating assistance until Grove City "corrects its noncompliance with Title IX and satisfies the Department that it is in compliance" with the applicable regulations. App. to Pet. for Cert. A-97.

Grove City and four of its students then commenced this action in the District Court for the Western District of Pennsylvania, which concluded that the students' BEOG's constituted "Federal financial assistance" to Grove City but held, on several grounds, that the Department could not terminate the students' aid because of the College's refusal to execute an Assurance of Compliance. Grove City College v. Harris, 500 F.Supp. 253 (1980). [ Footnote 9] The Court of Appeals reversed.

Page 465 U. S. 562

687 F.2d 684 (CA3 1982). It first examined the language and legislative history of Title IX and held that indirect, as well as direct, aid triggered coverage under § 901(a), and that institutions whose students financed their educations with BEOG's were recipients of federal financial assistance within the meaning of Title IX. Although it recognized that Title IX's provisions are program-specific, the court likened the assistance flowing to Grove City through its students to nonearmarked aid, and, with one judge dissenting, declared that,

"[w]here the federal government furnishes indirect or non-earmarked aid to an institution, it is apparent to us that the institution itself must be the 'program.'"

687 F.2d at 700. [ Footnote 10] Finally, the Court of Appeals concluded that the Department could condition financial aid upon the execution of an Assurance of Compliance, and that the Department had acted properly in terminating federal financial assistance to the students and Grove City despite the lack of evidence of actual discrimination.

Page 465 U. S. 563

We granted certiorari, 459 U.S. 1199 (1983), and we now affirm the Court of Appeals' judgment that the Department could terminate BEOG's received by Grove City's students to force the College to execute an Assurance of Compliance.
II
In defending its refusal to execute the Assurance of Compliance required by the Department's regulations, Grove City first contends that neither it nor any "education program or activity" of the College receives any federal financial assistance within the meaning of Title IX by virtue of the fact that some of its students receive BEOG's and use them to pay for their education. We disagree.

Grove City provides a well-rounded liberal arts education and a variety of educational programs and student services. The question is whether any of those programs or activities "receiv[es] Federal financial assistance" within the meaning of Title IX when students finance their education with BEOG's. The structure of the Education Amendments of 1972, in which Congress both created the BEOG program and imposed Title IX's nondiscrimination requirement, strongly suggests an affirmative conclusion. BEOG's were aptly characterized as a "centerpiece of the bill," 118 Cong.Rec. 20297 (1972) (Rep. Pucinski), and Title IX "relate[d] directly to [its] central purpose." 117 Cong.Rec. 30412 (1971) (Sen. Bayh). In view of this connection and Congress' express recognition of discrimination in the administration of student financial aid programs, [ Footnote 11] it would indeed be anomalous to discover that one of the primary components of Congress' comprehensive "package of federal aid," id. at 2007 (Sen. Pell), was not intended to trigger coverage under Title IX.

Page 465 U. S. 564

It is not surprising to find, therefore, that the language of § 901(a) contains no hint that Congress perceived a substantive difference between direct institutional assistance and aid received by a school through its students. The linchpin of Grove City's argument that none of its programs receives any federal assistance is a perceived distinction between direct and indirect aid, a distinction that finds no support in the text of § 901(a). [ Footnote 12] Nothing in § 901(a) suggests that Congress elevated form over substance by making the application of the nondiscrimination principle dependent on the manner in which a program or activity receives federal assistance. There is no basis in the statute for the view that only institutions that themselves apply for federal aid or receive checks directly from the Federal Government are subject to regulation. Cf. Bob Jones University v. Johnson, 396 F.Supp. 597, 601-604 (SC 1974), affirmance order, 529 F.2d 514 (CA4 1975). As the Court of Appeals observed, "by its all inclusive terminology, [§ 901(a)] appears to encompass all forms of federal aid to education, direct or indirect." 687 F.2d at 691 (emphasis in original). We have recognized the need to " accord [Title IX] a sweep as broad as its language,'" North Haven Board of Education v. Bell, , (1982) (quoting United States v. Price, , (1966)), and we are reluctant to read into § 901(a) a limitation not apparent on its face.

Page 465 U. S. 565

Our reluctance grows when we pause to consider the available evidence of Congress' intent. The economic effect of direct and indirect assistance often is indistinguishable, see Mueller v. Allen, , , n. 6 (1983); id. at (MARSHALL, J., dissenting); Committee for Public Education v. Nyquist, , (1973); Norwood v. Harrison, , -465 (1973), and the BEOG program was structured to ensure that it effectively supplements the College's own financial aid program. [ Footnote 13] Congress undoubtedly comprehended this reality in enacting the Education Amendments of 1972. The legislative history of the Amendments is replete with statements evincing Congress' awareness that the student assistance programs established by the

Page 465 U. S. 566

Amendments would significantly aid colleges and universities. [ Footnote 14] In fact, one of the stated purposes of the student aid provisions was to "provid[e] assistance to institutions of higher education." Pub.L. 92-318, § 1001(c)(1), 86 Stat. 381, 20 U.S.C. § 1070(a)(5).

Congress' awareness of the purpose and effect of its student aid programs also is reflected in the sparse legislative history of Title IX itself. Title IX was patterned after Title VI of the Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d et seq. (1976 ed. and Supp. V). Cannon v. University of Chicago, , -685 (1979); 118 Cong.Rec. 5807 (1972) (Sen. Bayh). The drafters of Title VI envisioned that the receipt of student aid funds would trigger coverage, [ Footnote 15] and, since they approved identical language, we discern no reason to believe that the Congressmen who voted for Title IX intended a different result.

The few contemporaneous statements that attempted to give content to the phrase "receiving Federal financial assistance," while admittedly somewhat ambiguous, are consistent with Senator Bayh's declaration that Title IX authorizes the

Page 465 U. S. 567

termination of "all aid that comes through the Department of Health, Education, and Welfare." 117 Cong.Rec. 30408 (1971). [ Footnote 16] Such statements by individual legislators should not be given controlling effect, but, at least in instances where they are consistent with the plain language of Title IX, Senator Bayh's remarks are "an authoritative guide to the statute's construction." North Haven Board of Education v. Bell, 456 U.S. at . The contemporaneous legislative history, in short, provides no basis for believing that Title IX's broad language is somehow inconsistent with Congress' underlying intent. See also 20 U.S.C. § 1094(a)(3) (1982 ed.).

Persuasive evidence of Congress' intent concerning student financial aid may also be gleaned from its subsequent treatment of Title IX. We have twice recognized the probative value of Title IX's unique postenactment history, North Haven Board of Education v. Bell, supra, at ; Cannon v. University of Chicago, supra, at , n. 7, -703, and we

Page 465 U. S. 568

do so once again. The Department's sex discrimination regulations made clear that "[s]cholarships, loans, [and] grants . . . extended directly to . . . students for payment to" an institution constitute federal financial assistance to that entity. 40 Fed.Reg. 24137 (1975); see n 6, supra. Under the statutory "laying before" procedure of the General Education Provisions Act, Pub.L. 93-380, 88 Stat. 567, as amended, 20 U.S.C. § 1232(d)(1) (1982 ed.), Congress was afforded an opportunity to invalidate aspects of the regulations it deemed inconsistent with Title IX. [ Footnote 17] The regulations were clear, and Secretary Weinberger left no doubt concerning the Department's position that "the furnishing of student assistance to a student who uses it at a particular institution . . . [is] Federal aid which is covered by the statute." [ Footnote 18] Yet neither House passed a disapproval resolution. Congress' failure to disapprove the regulations is not dispositive, but, as we recognized in North Haven Board of Education v. Bell, supra, at -534, it strongly implies that the regulations accurately reflect congressional intent. Congress has never disavowed this implication, and in fact has acted consistently with it on a number of occasions. [ Footnote 19]

Page 465 U. S. 569

With the benefit of clear statutory language, powerful evidence of Congress' intent, and a longstanding and coherent administrative construction of the phrase "receiving Federal financial assistance," we have little trouble concluding that Title IX coverage is not foreclosed because federal funds are

Page 465 U. S. 570

granted to Grove City's students, rather than directly to one of the College's educational programs. There remains the question, however, of identifying the "education program or activity" of the College that can properly be characterized as "receiving" federal assistance through grants to some of the students attending the College. [ Footnote 20]
III
Page 465 U. S. 571

provision whenever one of their programs receives federal assistance, see 1975 Hearings 178 (Sen. Bayh), we cannot accept the Court of Appeals' conclusion that, in the circumstances present here, Grove City itself is a "program or activity" that may be regulated in its entirety. Nevertheless, we find no merit in Grove City's contention that a decision treating BEOG's as "Federal financial assistance" cannot be reconciled with Title IX's program-specific language, since BEOG's are not tied to any specific "education program or activity."

If Grove City participated in the BEOG program through the RDS, we would have no doubt that the "education program or activity receiving Federal financial assistance" would not be the entire College; rather, it would be its student financial aid program. [ Footnote 21] RDS institutions receive federal funds directly, but can use them only to subsidize or expand their financial aid programs and to recruit students who might otherwise be unable to enroll. In short, the assistance is earmarked for the recipient's financial aid program. Only by ignoring Title IX's program-specific language could we conclude that funds received under the RDS, awarded to eligible students, and paid back to the school when tuition comes due represent federal aid to the entire institution.

We see no reason to reach a different conclusion merely because Grove City has elected to participate in the ADS. Although Grove City does not itself disburse students' awards, BEOG's clearly augment the resources that the College itself

Page 465 U. S. 572

devotes to financial aid. As is true of the RDS, however, the fact that federal funds eventually reach the College's general operating budget cannot subject Grove City to institution-wide coverage. Grove City's choice of administrative mechanisms, we hold, neither expands nor contracts the breadth of the "program or activity" -- the financial aid program -- that receives federal assistance and that may be regulated under Title IX.

To the extent that the Court of Appeals' holding that BEOG's received by Grove City's students constitute aid to the entire institution rests on the possibility that federal funds received by one program or activity free up the College's own resources for use elsewhere, the Court of Appeals' reasoning is doubly flawed. First, there is no evidence that the federal aid received by Grove City's students results in the diversion of funds from the College's own financial aid program to other areas within the institution. [ Footnote 22] Second, and more important, the Court of Appeals' assumption that Title IX applies to programs receiving a larger share of a school's own limited resources as a result of federal assistance earmarked for use elsewhere within the institution is inconsistent with the program-specific nature of the statute. Most federal educational assistance has economic ripple effects throughout the aided institution, and it would be difficult, if not impossible, to determine which programs or activities derive such indirect benefits. Under the Court of Appeals'

Page 465 U. S. 573

theory, an entire school would be subject to Title IX merely because one of its students received a small BEOG or because one of its departments received an earmarked federal grant. This result cannot be squared with Congress' intent.

The Court of Appeals' analogy between student financial aid received by an educational institution and nonearmarked direct grants provides a more plausible justification for its holding, but it too is faulty. Student financial aid programs, we believe, are sui generis. In neither purpose nor effect can BEOG's be fairly characterized as unrestricted grants that institutions may use for whatever purpose they desire. The BEOG program was designed, not merely to increase the total resources available to educational institutions, but to enable them to offer their services to students who had previously been unable to afford higher education. It is true, of course, that substantial portions of the BEOG's received by Grove City's students ultimately find their way into the College's general operating budget, and are used to provide a variety of services to the students through whom the funds pass. However, we have found no persuasive evidence suggesting that Congress intended that the Department's regulatory authority follow federally aided students from classroom to classroom, building to building, or activity to activity. In addition, as Congress recognized in considering the Education Amendments of 1972, the economic effect of student aid is far different from the effect of nonearmarked grants to institutions themselves, since the former, unlike the latter, increases both an institution's resources and its obligations. See Pub.L. 92-318, § 1001(a), 86 Stat. 375, 20 U.S.C. § 1070e; S.Rep. No. 92-346, p. 43 (1971); 118 Cong.Rec. 20331 (1972) (Rep. Badillo). In that sense, student financial aid more closely resembles many earmarked grants.

We conclude that the receipt of BEOG's by some of Grove City's students does not trigger institution-wide coverage under Title IX. In purpose and effect, BEOG's represent

Page 465 U. S. 574

federal financial assistance to the College's own financial aid program, and it is that program that may properly be regulated under Title IX.
IV
Since Grove City operates an "education program or activity receiving Federal financial assistance," the Department may properly demand that the College execute an Assurance of Compliance with Title IX. 34 CFR § 106.4 (1983). Grove City contends, however, that the Assurance it was requested to sign was invalid, both on its face and as interpreted by the Department, in that it failed to comport with Title IX's program-specific character. Whatever merit that objection might have had at the time, it is not now a valid basis for refusing to execute an Assurance of Compliance.

The Assurance of Compliance regulation itself does not, on its face, impose institution-wide obligations. Recipients must provide assurance only that "each education program or activity operated by . . . [them] and to which this part applies will be operated in compliance with this part." 34 CFR § 106.4 (1983) (emphasis added). The regulations apply, by their terms,

"to every recipient and to each education program or activity operated by such recipient which receives or benefits from Federal financial assistance."

34 CFR § 106.11 (1983) (emphasis added). These regulations, like those at issue in North Haven Board of Education v. Bell, (1982), "conform with the limitations Congress enacted in §§ 901 and 902." Id. at . Nor does the Department now claim that its regulations reach beyond the College's student aid program. Furthermore, the Assurance of Compliance currently in use, like the one Grove City refused to execute, does not, on its face, purport to reach the entire College; it certifies compliance with respect to those "education programs and activities receiving Federal financial assistance." See n 2, supra. Under this opinion, consistent with the program-specific requirements of Title IX,

Page 465 U. S. 575

the covered education program is the College's financial aid program.

A refusal to execute a proper program-specific Assurance of Compliance warrants termination of federal assistance to the student financial aid program. The College's contention that termination must be preceded by a finding of actual discrimination finds no support in the language of § 902, which plainly authorizes that sanction to effect "[c]ompliance with any requirement adopted pursuant to this section." Regulations authorizing termination of assistance for refusal to execute an Assurance of Compliance with Title VI had been promulgated, 45 CFR § 80.4 (Supp., Jan. 1, 1965), and upheld, Gardner v. Alabama, 385 F.2d 804 (CA5 1967), cert. denied, 389 U.S. 1046 (1968), long before Title IX was enacted, and Congress no doubt anticipated that similar regulations would be developed to implement Title IX. 118 Cong.Rec. 5807 (1972) (Sen. Bayh). We conclude, therefore, that the Department may properly condition federal financial assistance on the recipient's assurance that it will conduct the aided program or activity in accordance with Title IX and the applicable regulations.
V
Grove City's final challenge to the Court of Appeals' decision -- that conditioning federal assistance on compliance with Title IX infringes First Amendment rights of the College and its students -- warrants only brief consideration. Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept. E.g., Pennhurst State School and Hospital v. Halderman, , (1981). Grove City may terminate its participation in the BEOG program, and thus avoid the requirements of § 901(a). Students affected by the Department's action may either take their BEOG's elsewhere or attend Grove City without federal financial assistance. Requiring Grove City to comply with Title IX's

Page 465 U. S. 576

prohibition of discrimination as a condition for its continued eligibility to participate in the BEOG program infringes no First Amendment rights of the College or its students.

Accordingly, the judgment of the Court of Appeals is

Section 901(a), 20 U.S.C. § 1681(a), provides, in pertinent part:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ."

Nine statutory exemptions, none of which is relevant to the disposition of this case, follow. See §§ 901(a)(1)(9), 20 U.S.C. §§ 1681(a)(1)-(9).

Section 902, 20 U.S.C. § 1682, provides:

"Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section [901] with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report."

(Emphasis in original.)

The Department of Health, Education, and Welfare's functions with respect to BEOG's were transferred to the Department of Education by § 301(a)(3) of the Department of Education Organization Act, Pub.L. 96-88, 93 Stat. 678, 20 U.S.C. § 3441(a)(3) (1982 ed.). We will refer to both HEW and DOE as "the Department."

The Secretary, in his discretion, has established two procedures for computing and disbursing BEOG's. Under the Regular Disbursement System (RDS), the Secretary estimates the amount that an institution will need for grants and advances that sum to the institution, which itself selects eligible students, calculates awards, and distributes the grants by either crediting students' accounts or issuing checks. 34 CFR §§ 690.71690.85 (1983). Most institutions whose students receive BEOG's participate in the RDS, but the ADS is an option made available by the Secretary to schools that wish to minimize their involvement in the administration of the BEOG program. Institutions participating in the program through the ADS must make appropriate certifications to the Secretary, but the Secretary calculates awards and makes disbursements directly to eligible students. 34 CFR §§ 690.91-690.96 (1983).

The Title IX regulations were recodified in 1980, without substantive change, at 34 CFR pt. 106 in connection with the establishment of the Department of Education. 45 Fed.Reg. 30802, 30962-30963 (1980). All references herein are to the currently effective regulations.

"Federal financial assistance" is defined in 34 CFR § 106.2(g)(1) (1983) to include:

"A grant or loan of Federal financial assistance, including funds made available for:"

"(ii) Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity."

A "recipient" is defined in 34 CFR § 106.2(h) (1983) to include:

"[A]ny public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance. . . ."

See also 34 CFR §§ 106.11, 106.31(a) (1983).

The Assurance of Compliance form currently in use differs somewhat from the version quoted in the text. See App. to Brief for Federal Respondents in Hillsdale College v. Department of Education, O.T. 1982, No. 82-1538, pp. 1a-2a. The substance, however, is the same in that it refers to "education programs and activities receiving Federal financial assistance."

The Department also sought to terminate Guaranteed Student Loans (GSL's), 20 U.S.C. § 1071 (1982 ed.), received by Grove City's students.

[ Footnote 10]

In reaching this conclusion, the Court of Appeals accepted the position argued by respondents. As respondents acknowledged in the oral argument before this Court, the Department's position has not been a model of clarity. Tr. of Oral Arg. 33-35. The Department initially took the position that the receipt of student financial aid would trigger institution-wide coverage under Title IX, and construed its regulations to that effect. It pressed that position in the lower courts. In their brief in opposition to the petition for certiorari, respondents did not defend this aspect of the Court of Appeals' opinion, but argued instead that the question need not be resolved to decide this case. In their brief on the merits and in the oral argument, however, respondents conceded that the Court of Appeals erred in holding that Grove City itself constituted the "program or activity" subject to regulation under Title IX. The Department's regulations, it was represented, may be construed in a program-specific manner, and hence are not inconsistent with the statute. This concession, of course, is not binding on us, and does not foreclose our review of the judgment below.

[ Footnote 11]

[ Footnote 12]

Grove City itself recognizes the problematic nature of the distinction it advances. Although its interpretation of § 901(a) logically would exclude from coverage under Title IX local school districts that receive federal funds through state educational agencies, see, e.g., 20 U.S.C. § 3801 et seq. (1982 ed.), Grove City wisely does not attempt to defend this result. In fact, the College concedes that,

"[b]ecause federal assistance is often passed through state agencies, this type of indirect assistance leads to Title IX jurisdiction over the education program or activity which ultimately receives the assistance."

Brief for Petitioners 17, n. 17 (emphasis in original). Grove City has proposed no principled basis for treating differently federal assistance received through students and federal aid that is disbursed by a state agency.

[ Footnote 13]

Grove City's students receive BEOG's to pay for the education they receive at the College. Their eligibility for assistance is conditioned upon continued enrollment at Grove City and on satisfactory progress in their studies. 20 U.S.C. §§ 1091(a)(1), (3) (1982 ed.). Their grants are based on the "cost of attendance" at Grove City, 20 U.S.C. § 1070a(a)(2)(B)(i) (1982 ed.), which includes the College's tuition and fees, room and board, and a limited amount for books, supplies, and miscellaneous expenses. 34 CFR § 690.51 (1983). The amount that students and their families can reasonably be expected to contribute is subtracted from the maximum BEOG to ensure that the assistance is used solely for educational expenses, 20 U.S.C. § 1070a(a)(2)(A)(i) (1982 ed.), and students are required to file affidavits stating that their awards will be "used solely for expenses related to attendance" at Grove City. 20 U.S.C. § 1091(a)(5) (1982 ed.); see 34 CFR §§ 690.79, 690.94(a)(2) (1983).

Grove City's attempt to analogize BEOG's to food stamps, Social Security benefits, welfare payments, and other forms of general purpose governmental assistance to low-income families is unavailing. First, there is no evidence that Congress intended the receipt of federal money in this manner to trigger coverage under Title IX. Second, these general assistance programs, unlike student aid programs, were not designed to assist colleges and universities. Third, educational institutions have no control over, and indeed perhaps no knowledge of, whether they ultimately receive federal funds made available to individuals under general assistance programs, but they remain free to opt out of federal student assistance programs. Fourth, individuals' eligibility for general assistance is not tied to attendance at an educational institution.

[ Footnote 14]

See, e.g., H.R.Rep. No. 92-554, p. 244 (1972) (Supplemental Views); 117 Cong.Rec. 2007 (1971) (Sen. Pell); id. at 37778, 37782 (Rep. Quie); id. at 39256 (Rep. Steiger); 118 Cong.Rec. 20295 (1972) (Rep. Reid); id. at 20297 (Rep. Pucinski); id. at 20312 (statement of Isaac K. Beckes); id. at 20310 (letter from Kingman Brewster, Jr.); id. at 20324 (Rep. Mitchell).

[ Footnote 15]

[ Footnote 16]

See 117 Cong.Rec. 30158-30159 (1971) (Sen. McGovern); id. at 39260 (Rep. Erlenborn); 118 Cong.Rec. 5814 (1972) (Sen. Bentsen). Grove City relies heavily on a colloquy between Senators Bayh and Dominick:

"Mr. DOMINICK. The Senator is talking about every program under HEW?"

"Mr. BAYH. Let me suggest that I would imagine that any person who was sitting at the head of [HEW], administering this program, would be reasonable, and would use only such leverage as was necessary against the institution."

"It is unquestionable, in my judgment, that this would not be directed at specific assistance that was being received by individual students, but would be directed at the institution, and the Secretary would be expected to use good judgment as to how much leverage to apply, and where it could best be applied."

117 Cong.Rec. 30408 (1971).

Grove City contends that Senator Bayh's statement demonstrates an intent to exclude student aid from coverage under Title IX. We believe that his answer is more plausibly interpreted as suggesting that, although the Secretary is empowered to terminate student aid, he probably would not need to do so where leverage could be exerted by terminating other assistance. The students, of course, always remain free to take their assistance elsewhere.

[ Footnote 17]

[ Footnote 18]

Sex Discrimination Regulations: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 94th Cong., 1st Sess., 482 (1975) (1975 Hearings). The Secretary added:

"Our view was that student assistance, assistance that the Government furnishes, that goes directly or indirectly to an institution is Government aid within the meaning of Title IX. If it is not, there is an easy remedy. Simply tell us that it is not. We believe it is, and base our assumption on that."

[ Footnote 19]

Although "Congress has proceeded to amend § 901 when it has disagreed with HEW's interpretation of the statute," North Haven Board of Education v. Bell, supra, at , it has acquiesced in the Department's longstanding assessment of the types of federal aid that trigger coverage under Title IX. In considering the 1976 Education Amendments, for example, Congress rejected an amendment proposed by Senator McClure that would have defined federal financial assistance as "assistance received by the institution directly from the federal government." 122 Cong.Rec. 28144 (1976). Senator Pell objected that the amendment would remove from the scope of Title IX funds provided under the BEOG program and pointed out that, "[w]hile these dollars are paid to students, they flow through and ultimately go to institutions of higher education. . . ." Id. at 28145. Senator Bayh raised a similar objection, id. at 28145-28146, and the amendment was rejected. Id. at 28147. See also id. at 28013-28016 (treatment of Hatfield amendment).

It is also significant that, in 1976, Congress enacted legislation clarifying the intent of the Privacy Act to ensure that institutions serving as payment agents for the BEOG program are not considered contractors maintaining a system of records to accomplish a function of the Secretary. Pub.L. 94-328, § 2(f), 90 Stat. 727, 20 U.S.C. § 1070a(c). This legislation responded to concerns expressed by educational institutions over "the additional and unnecessary administrative burdens which would be imposed upon them if [they] were deemed contractors.'" S.Rep. No. 94-954, p. 3 (1976). In sharp contrast, Congress has failed to respond to repeated requests by colleges in Grove City's position for legislation exempting them from coverage under Title IX.

The statutory authorization for BEOG's, moreover, has been renewed three times. Pub.L. 94-482, § 121(a), 90 Stat. 2091; Pub.L. 95-566, § 2, 92 Stat. 2402; Pub.L. 96-374, § 402(a), 94 Stat. 1401. Each time, Congress was well aware of the administrative interpretation under which such grants were believed to trigger coverage under Title IX. The history of these reenactments makes clear that Congress regards BEOG's and other forms of student aid as a critical source of support for educational institutions. See, e.g., Reauthorization of the Higher Education Act and Related Measures: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 96th Cong., 1st Sess., pt. 3, p. 400 (1979) (Rep. Ford). In view of Congress' consistent failure to amend either Title IX or the BEOG statute in a way that would support Grove City's argument, we feel fully justified in concluding that "the legislative intent has been correctly discerned." North Haven Board of Education v. Bell, supra, at .

[ Footnote 20]

JUSTICE STEVENS' assertion that we need not decide and have no jurisdiction to decide this question is puzzling. Title IX coverage is triggered only when an "education program or activity" is receiving federal aid. Unless such a program can be and is identified, there is no basis for ordering the College to execute an Assurance of Compliance. The Court of Appeals understood as much, and ruled that the entire College is the covered educational program. Until and unless that view of the statute is overturned, there will be outstanding an authoritative Court of Appeals' judgment that the certificate Grove City must execute relates to the entire College and that, without such a certificate, the Department would be entitled to terminate grants to Grove City students.

Grove City asks to be relieved of that judgment on the grounds that none of its educational programs is receiving any federal aid and that, if any of its programs is receiving aid, it is only its administration of the BEOG program. Grove City is entitled to have these issues addressed, for otherwise it must deal with the undisturbed judgment of the Court of Appeals that the entire College is subject to federal oversight under Title IX. Even though the Secretary has changed his position and no longer agrees with the expansive construction accorded the statute by the Court of Appeals, it is still at odds with Grove City as to the extent of the covered program; and, in any event, its modified stance can hardly overturn or modify the judgment below or eliminate Grove City's legitimate and substantial interest in having its submissions adjudicated.

[ Footnote 21]

There is no merit to Grove City's argument that the Department may regulate only the administration of the BEOG program. Just as employees who "work in an education program that receive[s] federal assistance," North Haven Board of Education v. Bell, 456 U.S. at , are protected under Title IX even if their salaries are "not funded by federal money," ibid., so also are students who participate in the College's federally assisted financial aid program but who do not themselves receive federal funds protected against discrimination on the basis of sex.

[ Footnote 22]

Until 1980, institutions whose students received BEOG's and other forms of assistance were required to provide assurance that they would

"continue to spend on [their] own scholarship and student aid program[s], from sources other than funds received under [the federal programs], not less than the average expenditure per year made for that purpose during the most recent period of three fiscal years."

20 U.S.C. § 1088c. This requirement was altered in the Education Amendments of 1980, Pub.L. 96-374, § 487(a), 94 Stat. 1451, 20 U.S.C. § 1094(a)(2) (1982 ed.), and no longer applies to schools whose students receive only BEOG's.

JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurring.

As I agree that the holding in this case is dictated by the language and legislative history of Title IX, and the regulations of the Department of Education, I join the Court's decision. I do so reluctantly, and write briefly to record my view that the case is an unedifying example of overzealousness on the part of the Federal Government.

Grove City College (Grove City) may be unique among colleges in our country; certainly there are few others like it. Founded more than a century ago in 1876, Grove City is an independent, coeducational liberal arts college. It describes itself as having "both a Christian world view and a freedom philosophy," perceiving these as "interrelated." App. A-22. At the time of this suit, it had about 2,200 students, and tuition was surprisingly low for a private college. [ Footnote 2/1] Some 140 of the College's students were receiving Basic Educational Opportunity Grants (BEOG's), [ Footnote 2/2] and 342 had obtained Guaranteed Student Loans (GSL's). [ Footnote 2/3] The grants were made directly to the students through the Department of Education, and the student loans were guaranteed by the Federal Government. Apart from this indirect assistance, Grove City has followed an unbending policy of refusing all forms of government assistance, whether federal, state, or local. It was and is the policy of this small college to remain wholly independent

Page 465 U. S. 577

of government assistance, recognizing -- as this case well illustrates -- that, with acceptance of such assistance, one surrenders a certain measure of the freedom that Americans always have cherished.

This case involves a regulation adopted by the Department to implement § 901(a) of Title IX (20 U.S.C. § 1681(a)). It is well to bear in mind what § 901(a) provides:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. . . ."

The sole purpose of the statute is to make unlawful " discrimination" by recipients of federal financial assistance on the "basis of sex." The undisputed fact is that Grove City does not discriminate -- and so far as the record in this case shows -- never has discriminated against anyone on account of sex, race, or national origin. This case has nothing whatever to do with discrimination past or present. The College therefore has complied to the letter with the sole purpose of § 901(a).

As the Court describes, the case arises pursuant to a regulation adopted under Title IX that authorizes the Secretary to obtain from recipients of federal aid an "Assurance of Compliance" with Title IX and regulations issued thereunder. At the outset of this litigation, the Department insisted that, by accepting students who received BEOG awards, Grove City's entire institution was subject to regulation under Title IX. The College, in view of its policies and principles of independence and its record of nondiscrimination, objected to executing this Assurance. One would have thought that the Department, confronted as it is with cases of national importance that involve actual discrimination, would have respected the independence and admirable record of this College. But common sense and good judgment failed to prevail.

Page 465 U. S. 578

The Department chose to litigate, and instituted an administrative proceeding to compel Grove City to execute an agreement to operate all of its programs and activities in full compliance with all of the regulations promulgated under Title IX -- despite the College's record as an institution that had operated to date in full accordance with the letter and spirit of Title IX. The Administrative Law Judge who heard the case on September 15, 1978, did not relish his task.

On the basis of the evidence, which included the formal published statement of Grove City's strong "nondiscrimination policy," he stated:

"It should also be noted that there was not the slightest hint of any failure to comply with Title IX save the refusal to submit an executed assurance of compliance with Title IX. This refusal is obviously a matter of conscience and belief."

App. to Pet. for Cert. A-94 (emphasis added). [ Footnote 2/4] The Administrative Law Judge further evidenced his reluctance by emphasizing that the regulations were "binding" upon him. Id. at A-95. He concluded that the scholarship grants and student loans to Grove City constituted indirect "federal financial assistance," and in view of the failure of Grove City to execute the Assurance, the regulation required that the grants and loans to its students must be "terminated." Id. at A-96. The College and four of its students then instituted this suit in 1978 challenging the validity of the regulations and seeking a declaratory judgment.

The effect of the Department's termination of the student grants and loans would not have been limited to the College itself. Indeed, the most direct effect would have been upon the students themselves. Absent the availability of other scholarship funds, many of them would have had to abandon their college education or choose another school. It was to

Page 465 U. S. 579

avoid these serious consequences, that this suit was instituted. The College prevailed in the District Court, but lost in the Court of Appeals. Only after Grove City had brought its case before this Court did the Department retreat to its present position that Title IX applies only to Grove City's financial aid office. On this narrow theory, the Department has prevailed, having taken this small independent college, which it acknowledges has engaged in no discrimination whatever, through six years of litigation with the full weight of the Federal Government opposing it. I cannot believe that the Department will rejoice in its "victory."

[ Footnote 2/1]

Yearly tuition for 1983 for fees, room, and board was $4,270. Brief for Petitioners 3, n. 2.

[ Footnote 2/2]

Grove City College v. Harris, 500 F.Supp. 253, 259 (WD Pa.1980).

[ Footnote 2/3]

[ Footnote 2/4]

These findings of the Administrative Law Judge have not been questioned.

JUSTICE STEVENS, concurring in part and concurring in the result.

For two reasons, I am unable to join Part III of the Court's opinion. First, it is an advisory opinion unnecessary to today's decision, and second, the advice is predicated on speculation, rather than evidence.

The controverted issue in this litigation is whether Grove City College may be required to execute the "Assurance of Compliance with Title IX" tendered to it by the Secretary in order to continue receiving the benefits of the federal financial assistance provided by the BEOG program. The Court of Appeals affirmed the District Court's decision that Grove City is a "recipient" of federal financial assistance, and reversed its decision that the Secretary could not terminate federal financial assistance because Grove City refused to execute the Assurance. The Court today holds (in and (in These holdings are fully sufficient to sustain the judgment the Court reviews, as the Court acknowledges by affirming that judgment.

In the Court holds that Grove City is not required to refrain from discrimination on the basis of

Page 465 U. S. 580

sex except in its financial aid program. In so stating, the Court decides an issue that is not in dispute. The Assurance of Compliance merely requires that it comply with Title IX "to the extent applicable to it." See ante at . The Secretary, who is responsible for administering Title IX, construes the statute as applicable only to Grove City's financial aid program. All the Secretary seeks is a judgment that Title IX requires Grove City to promise not to discriminate in its financial aid program. The Court correctly holds that this program is subject to the requirements of Title IX, and that Grove City must promise not to discriminate in its operation of the program. But there is no reason for the Court to hold that Grove City need not make a promise that the Secretary does not ask it to make, and that it in fact would not be making by signing the Assurance, in order to continue to receive federal financial assistance. It will be soon enough to decide the question discussed in

Moreover, the record in this case is far from adequate to decide the question raised in See Consolidated Rail Corp. v. Darrone, post at -636. Assuming for the moment that participation in the BEOG program could not in itself make Title IX applicable to the entire institution, a factual inquiry is nevertheless necessary as to which of Grove City's programs and activities can be said to receive or benefit from federal financial assistance. This is the import of the applicable regulation, upheld by the Court today, ante at -575, which states that Title IX applies

"to every recipient and to each education program or activity operated by such recipient which receives or benefits from Federal financial assistance."

34 CFR § 106.11 (1983). The Court overlooks the fact that the regulation is in the disjunctive; Title IX coverage does not always depend on the actual receipt of federal financial assistance by a given program or activity. The record does not tell us how important the BEOG program

Page 465 U. S. 581

is to Grove City, in either absolute or relative terms; nor does it tell us anything about how the benefits of the program are allocated within the institution. The Court decides that a small scholarship for just one student should not subject the entire school to coverage. Ante at -573. But why should this case be judged on the basis of that hypothetical example instead of a different one? What if the record showed -- and I do not suggest that it does -- that all of the BEOG money was reserved for, or merely happened to be used by, talented athletes, and that their tuition payments were sufficient to support an entire athletic program that would otherwise be abandoned? Would such a hypothetical program be covered by Title IX? And if this athletic program discriminated on the basis of sex, could it plausibly be contended that Congress intended that BEOG money could be used to enable such a program to survive? Until we know something about the character of the particular program, it is inappropriate to give advice about an issue that is not before us.

Accordingly, while I subscribe to the reasoning in Parts I, II, IV, and V of the Court's opinion, I am unable to join Part III.

* Indeed, if we are to speculate about hypothetical cases, why not consider a school comparable to the private institutions discussed in Blum v. Yaretsky, (1982), in which over 90% of the patients received funds from public sources? See id. at . It is at least theoretically possible that an educational institution might be financed entirely by tuition, and that virtually all of the students at an institution could receive a federal subsidy. Again, I do not suggest that Grove City College is such an institution, but I do suggest that it is improper for the Court to decide a legal issue on the basis of hypothetical examples that are selected to support a particular result.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.

The Court today concludes that Grove City College is "receiving Federal financial assistance" within the meaning of Title IX of the Education Amendments of 1972, 20 U.S.C.

Page 465 U. S. 582

§ 1681(a), because a number of its students receive federal education grants. As the Court persuasively demonstrates in that conclusion is dictated by "the need to accord [Title IX] a sweep as broad as its language," ante at ; by reference to the analogous statutory language and legislative history of Title VI of the Civil Rights Act of 1964, ante at ; by reliance on the unique postenactment history of Title IX, ante at -568; and by recognition of the strong congressional intent that there is no "substantive difference between direct institutional assistance and aid received by a school through its students," ante at , -566, -570, and nn. 12-14, 19. For these same reasons, however, I cannot join in which the Court interprets the language in Title IX that limits application of the statute to "any education program or activity" receiving federal moneys. By conveniently ignoring these controlling indicia of congressional intent, the Court also ignores the primary purposes for which Congress enacted Title IX. The result -- allowing Title IX coverage for the College's financial aid program, but rejecting institution-wide coverage even though federal moneys benefit the entire College -- may be superficially pleasing to those who are uncomfortable with federal intrusion into private educational institutions, but it has no relationship to the statutory scheme enacted by Congress.
I
The Court has twice before had occasion to ascertain the precise scope of Title IX. See North Haven Board of Education v. Bell, (1982); Cannon v. University of Chicago, (1979). In both cases, the Court emphasized the broad congressional purposes underlying enactment of the statute. In Cannon, while holding that Title IX confers a private cause of action on individual plaintiffs, we noted that the primary congressional purpose behind the statute was "to avoid the use of federal resources to support discriminatory practices," and that this purpose

"is generally

Page 465 U. S. 583

served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices."

Id. at . In North Haven, while holding that employment discrimination is within the reach of Title IX, we expressed "no doubt that, if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language.'" 456 U.S. at (quoting United States v. Price, , (1966)). And although we acknowledged that an agency's authority "both to promulgate regulations and to terminate funds is subject to the program-specific limitation of §§ 901 and 902," 456 U.S. at , we explicitly refused to define "program" at that time, id. at .

When reaching that question today, [ Footnote 3/1] the Court completely disregards the broad remedial purposes of Title IX that consistently have controlled our prior interpretations of this civil rights statute. Moreover, a careful examination of the statute's legislative history, the accepted meaning of similar statutory language in Title VI, and the postenactment history of Title IX will demonstrate that the Court's narrow definition of "program or activity" is directly contrary to congressional intent.

The statute that was eventually enacted as Title IX had its genesis in separate proposals considered by the House and the Senate, in 1970 and 1971, respectively. In the House, the Special Subcommittee on Education, under the leadership of Representative Edith Green, held extensive hearings during the summer of 1970 on "Discrimination Against

Page 465 U. S. 584

Women." See Hearings on § 805 of H.R. 16098 before the Special Subcommittee on Education of the House Committee on Education and Labor, 91st Cong., 2d Sess. (1970) (1970 Hearings). At that time, the Subcommittee was considering a package of legislation that included a simple amendment adding the word "sex" to the list of discriminations prohibited by Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. [ Footnote 3/2] See North Haven, supra, at , n. 13; Cannon, supra, at , n. 16. Testimony offered during those hearings, however, focused on the evidence of pervasive sex discrimination in educational institutions. [ Footnote 3/3] It therefore was not surprising that the version of the Subcommittee's

Page 465 U. S. 585

proposal that was eventually passed by the full House was limited in its application to federally assisted education programs or activities. See 117 Cong.Rec. 39248-39261, 39353-39354 (1971). More important for present purposes, however, the House-passed bill retained the overall format of the Subcommittee proposal, and therefore continued to incorporate the "program or activity" language and its enforcement provisions from Title VI. Id. at 39364-39365.

In the Senate, action began on Title IX in 1971, when Senator Bayh first introduced a floor amendment to the comprehensive education legislation then being considered. Amendment No. 398 to Higher Education Act of 1971, reprinted in 117 Cong.Rec. 30156 (1971). As then written, Senator Bayh's proposal was clearly intended to cover an entire institution whenever any education program or activity conducted by that institution was receiving federal moneys. In particular, the amendment expressly prohibited discrimination on the basis of sex

"under any program or activity conducted by a public institution of higher education, or any school or department of graduate education, which is a recipient of Federal financial assistance for any education program or activity."

As explained by its sponsor, the amendment would have prohibited sex discrimination "by any public institution of higher education or any institution of graduate education receiving Federal educational financial assistance." Id. at 30157. [ Footnote 3/4]

The 1971 amendment was eventually ruled nongermane, id. at 30415, so Senator Bayh was forced to renew his efforts during the next session. When reintroduced, the amendment had been modified to conform in substantial part with the version of Title IX that had been passed by the House. See 118 Cong.Rec. 5803 (1972). This change was apparently made to ensure adoption of the antidiscrimination provisions by the Conference Committee that would soon

Page 465 U. S. 586

convene. See id. at 5813 (remarks of Sen. Pell, principal Senate Manager of the bill) ("As [Senator Bayh] knows, I said to him earlier that I intended to support the position he has advocated in conference with the House. He has chosen to bring the amendment before the Senate now"). There is thus nothing to suggest that the Senate had retreated from the underlying premise of the original amendment proposed by Senator Bayh in 1971 -- that sex discrimination would be prohibited in any educational institution receiving federal financial assistance. Indeed, Senator Bayh's willingness to conform the language of his amendment to the bill already enacted by the House proved successful, as Title IX was approved by the Conference Committee, see S.Conf.Rep. No. 92-798, pp. 221-222 (1972), and enacted into law.

In sum, although the contemporaneous legislative history does not definitively explain the intended meaning of the program-specific language included in Title IX, it lends no support to the interpretation adopted by the Court. What is clear, moreover, is that Congress intended enforcement of Title IX to mirror the policies and procedures utilized for enforcement under Title VI.

The voluminous legislative history of Title VI is not easy to comprehend, especially when one considers the emotionally and politically charged atmosphere operating at the time of its enactment. And there are no authoritative committee reports

Page 465 U. S. 587

explaining the many compromises that were eventually enacted, including the program-specific limitations that found their way into Title VI. Moreover, as might be expected, statements were made by various Members of Congress that can be cited to support a whole range of definitions for the "program or activity" language. For every instance in which a legislator equated the word "program" with a particular grant statute, [ Footnote 3/5] there is an example of a legislator defining "program or activity" more broadly. [ Footnote 3/6]

Without completely canvassing several volumes of the Congressional Record, I believe it is safe to say that, by including the programmatic language in Title VI, Congress sought to allay fears on the part of many legislators that one isolated violation of the statute's antidiscrimination provisions would result in the wholesale termination of federal funds. In particular,

"Congress was primarily concerned with two facets of the termination power: the possibility that noncompliance in a single school district might lead to termination of funds to the entire state; and the possibility that discrimination in the education program might result in the termination of federal assistance to unrelated federally financed programs, such as highways."

Comment, 118 U.Pa.L.Rev. 1113, 1119-1120 (1970) (footnotes omitted). See id. at 1116-1124. See also 687 F.2d 684, 697-698 (CA3 1982).

But even accepting that there is some uncertainty concerning the 1964 understanding of "program or activity," we need not be overly concerned with whatever doubt surrounds the precise intent, if any, of the 88th Congress. For what is crucial in ascertaining the meaning of the program-specific language

Page 465 U. S. 588

The Title VI regulations first issued by the Department of Health, Education, and Welfare during the 1960's, and remaining in effect during 1972, could not have been clearer in the way they applied to educational institutions. See generally 45 CFR pt. 80 (1972). For example, § 80.4(d) explained the assurances required from, among others, institutions of higher education that received federal financial assistance:

"(d) Assurances from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education (including assistance for construction, for research, for a special training project, for a student loan program, or for any other purpose), the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students."

"(2) The assurance required with respect to an institution of higher education, . . . insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, . . . or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for

Page 465 U. S. 589

which Federal financial assistance is sought, or the beneficiaries of or participants in such program. If in any such case the assistance sought is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith."

(Emphasis added.)

A list of illustrative applications followed that further demonstrated the broad scope of these regulations. One of the illustrations was aimed particularly at institutions of higher education:

"In a research, training, demonstration, or other grant to a university for activities to be conducted in a graduate school, discrimination in the admission and treatment of students in the graduate school is prohibited, and the prohibition extends to the entire university unless it satisfies the responsible Department official that practices with respect to other parts or programs of the university will not interfere, directly or indirectly, with fulfillment of the assurance required with respect to the graduate school."

§ 80.5(c). [ Footnote 3/7]

Page 465 U. S. 590

"states a reasonable condition that the United States may attach to any grant of financial assistance and may enforce by refusal or withdrawal of federal assistance."

Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (CA5 1967). More significantly, the court went on to equate a local school system with a "program or activity" receiving federal aid, noting that the

"School Board accepted federal financial assistance in November, 1964, and thereby brought its school system within the class of programs subject to the section 601 prohibition against discrimination."

Finally, in Board of Public Instruction v. Finch, 414 F.2d 1068 (CA5 1969), the court spoke more directly to the

Page 465 U. S. 591

"there will . . . be cases from time to time where a particular program, within a state, within a county, within a district, even within a school . . is effectively insulated from otherwise unlawful activities,"

termination of federal funds is proper if they "are administered in a discriminatory manner, or if they support a program which is infected by a discriminatory environment." Ibid. To this end, the court remanded the case to the Department for specific findings on the relationship, if any, between the three types of federal grants received by the school system (federal aid for the education of children from low-income families, for supplementary education centers, and for adult education) and the system's discriminatory practices.

In short, the judicial interpretations of Title VI existing in 1972 were either in agreement with the expansive reach of the Department's regulations, Bossier Parish, supra; Jefferson County, supra, or sanctioned a broad-based termination of federal aid if the funded programs were affected by discriminatory practices, Finch, supra. See also Note, 55 Geo.L.J. 325, 344-345 (1966) (supporting Department's treatment of a school district as an individual program). Cf. Lau v. Nichols, , (1974) (treating an entire school system or school district as an "educational program" under Title VI). Like the existing administrative regulations, therefore, they provide strong support for the view that Congress intended an expansive interpretation of the program-specific language included in Title IX. Because Members of Congress

"repeated[ly] refer[red] to Title VI and

Page 465 U. S. 592

its modes of enforcement, we are especially justified in presuming both that those representatives were aware of the prior interpretation of Title VI and that that interpretation reflects their intent with respect to Title IX."

If any doubt remains about the congressional intent underlying the program-specific language included in Title IX, it is removed by the unique postenactment history of the statute.

"Although postenactment developments cannot be accorded 'the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions concerning the scope and purpose of Title IX. . . .'"

Regulations promulgated by the Department to implement Title IX, both as proposed, 39 Fed.Reg. 22228 (1974), and as finally adopted, 40 Fed.Reg. 24128 (1975), included an interpretation of program specificity consistent with the view of Title VI and with the congressional intent behind Title IX outlined above. In particular, the regulations prohibited sex discrimination

"under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives or benefits from Federal financial assistance."

Id. at 24140 (now codified at 34 CFR § 106.31 (1983)). Introductory remarks explained the basis for the agency's decision:

"[T]itle IX will be consistent with the interpretation of similar language contained in title VI of the Civil Rights Act of 1964. . . . Therefore, an education program or activity or part thereof operated by a recipient of Federal financial assistance administered by the Department will be subject to the requirements of this regulation if it receives or benefits from such assistance. [ Footnote 3/8] This interpretation

Page 465 U. S. 593

is consistent with the only case specifically ruling on the language contained in title VI, which holds that Federal funds may be terminated under title VI upon a finding that they '[are] infected by a discriminatory environment.'"

40 Fed.Reg., at 24128 (quoting Finch, 414 F.2d at 1078-1079). Thus, the agency charged with the statute's implementation initially interpreted the program-specific language of Title IX in a manner consistent with the view of Congress' intent outlined above -- to allow for application of the statute to an entire institution if the institution is comprised of education programs or activities that receive or benefit from federal moneys.

In particular, two resolutions to invalidate the Department's regulations were proposed in the Senate, each specifically challenging the regulations because of the program-specificity

Page 465 U. S. 594

requirements of Title IX. One resolution would have provided a blanket disapproval of the regulations, S.Con.Res. 46, 94th Cong., 1st Sess. (1975), premised in part on the view that

"[t]he regulations are inconsistent with the enactment in that they apply to programs or activities not receiving Federal funds such as athletics and extracurricular activities,"

121 Cong.Rec. 17300 (1975) (remarks of Sen. Helms). The other resolution was aimed more particularly at the regulation of athletic programs and activities not receiving direct federal moneys, but also was premised on the program-specific limitations in the statute. See S. Con. Res. 52, 94th Cong., 1st Sess. (1975). [ Footnote 3/9] Neither resolution,

Page 465 U. S. 595

however, was acted upon after referral to the appropriate Committee.

In the House, extensive hearings were held by two separate Subcommittees of the Committee on Education and Labor. Of primary interest are the six days of hearings held by the Subcommittee on Postsecondary Education to review the Department's regulations "solely to see if they are consistent with the law and with the intent of the Congress in enacting the law." See Sex Discrimination Regulations: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 94th Cong., 1st Sess., 1 (1975) (1975 Hearings) (remarks of Rep. O'Hara). Among the numerous witnesses testifying about the programmatic reach of the Department's regulations were Senator Bayh, the chief Senate sponsor of the legislation, see supra at -586, and HEW Secretary Weinberger. Both strongly supported the scope of the regulations as consistent with the intent evidenced by the 92d Congress in 1972. See, e.g., 1975 Hearings, at 169-171 (statement of Sen. Bayh); id. at 178 (testimony of Sen. Bayh); id. at 438, 485 (testimony of Secretary Weinberger); id. at 487-488 (letter from Secretary Weinberger). [ Footnote 3/10] Specifically focusing on

Page 465 U. S. 596

the legal basis for the Department's regulations, the Secretary noted:

"One of the places you look for guidance is in the interpretation that the courts have given to similar statutes. Title VI, in the Finch case, was interpreted in a way . . . that programs that have any educational value or any educational meaning are the ones that are covered regardless of whether the Federal funds go specifically to those programs."

"In other words, if the Federal funds go to an institution which has educational programs, then the institution is covered throughout its activities. That essentially was the ruling with respect to similar language in title VI, and that is why we used this interpretation in title IX."

Id. at 485. Then, in a subsequent letter submitted to the Subcommittee, Secretary Weinberger addressed the precise issue posed by Grove City College in this case:

"[I]f students attending an institution of higher education are receiving benefits under the various Federal educational assistance programs, then all of the institution's activities that are supported by tuition payments of the students can be said to be receiving Federal financial assistance."

Id. at 488 (emphasis in original). [ Footnote 3/11]

Page 465 U. S. 597

Despite the attention focused upon, and the strong defense offered in support of, the programmatic reach of the Department's regulations at these hearings, the House offered no formal resistance to the regulations. Indeed, among the several resolutions of disapproval introduced in the House, only one directly mentioned this aspect of the regulations, and this resolution was not acted upon either by committee or by the full House. H.R.Con.Res. 311, 94th Cong., 1st Sess. (1975) (disapproving regulations that "would apply to athletic programs and grants which neither receive nor benefit from Federal financial assistance"); see 121 Cong.Rec.19209 (1975).

"the relatively insubstantial interest given the resolutions of disapproval that were introduced seems particularly significant since Congress has proceeded to amend [Title IX] when it has disagreed with [the Department's] interpretation

Page 465 U. S. 598

of the statute."

Ibid. Indeed, those amendments, by exempting from the reach of Title IX various facilities or services at educational institutions that themselves do not receive direct federal aid, strongly suggest that Congress understands the statute otherwise to encompass such programs or activities. [ Footnote 3/12]

Page 465 U. S. 599

In conclusion, each of the factors relevant to the interpretation of the program-specificity requirements of Title IX, taken individually or collectively, demonstrates that the Court today limits the reach of Title IX in a way that was wholly unintended by Congress. The contemporaneous legislative history of Title IX, the relevant interpretation of similar language in Title VI, and the administrative and legislative interpretations of Title IX since the statute's original enactment all lead to the same conclusion: that Title IX coverage for an institution of higher education is appropriate if federal moneys are received by or benefit the entire institution.
II
A proper application of Title IX to the circumstances of this case demonstrates beyond peradventure that the Court has unjustifiably limited the statute's reach. Grove City College enrolls approximately 140 students who utilize Basic Educational Opportunity Grants (BEOG's) to pay for their education at the College. Although the grant moneys are paid directly to the students, the Court properly concludes that the use of these federal moneys at the College means that the College "receives Federal financial assistance" within the meaning of Title IX. The Court also correctly notes that a principal purpose underlying congressional enactment of the BEOG program is to provide funds that will benefit colleges and universities as a whole. It necessarily follows, in my view, that the entire undergraduate institution operated by Grove City College is subject to the antidiscrimination provisions included in Title IX.

In determining the scope of Title IX coverage, the primary focus should be on the purposes meant to be served by the

Page 465 U. S. 600

particular federal funds received by the institution. [ Footnote 3/13] In this case, Congress has clearly indicated that BEOG moneys are intended to benefit any college or university that enrolls students receiving such grants. As the Court repeatedly recognizes:

"The legislative history of the [Education Amendments of 1972] is replete with statements evincing Congress' awareness that the student assistance programs established by the amendments would significantly aid colleges and universities. In fact, one of the stated purposes of the student aid provisions was to 'provid[e] assistance to institutions of higher education.' Pub.L. 92-318, § 1001(c)(1), 86 Stat. 381, 20 U.S.C. § 1070(a)(5)."

Ante at -566 (footnote omitted). See also ante at (Title IX "contains no hint that Congress perceived a substantive difference between direct institutional assistance and aid received by a school through its students"); ante at , n. 13 ("student aid programs . . . were . . . designed to assist colleges and universities"); ante at , n.19 ("The history of [the reenactments of the statutory authorization for BEOG's] makes clear that Congress regards BEOG's and other forms of student aid as a critical source of support for educational institutions").

In many respects, therefore, Congress views financial aid to students, and in particular BEOG's, as the functional equivalent of general aid to institutions. Given this undeniable and clearly stated congressional purpose, it would seem to be self-evident that Congress intended colleges or universities enrolling students who receive BEOG's to be covered, in their entirety, by the antidiscrimination provisions of Title IX. That statute's primary purpose, after all, is to ensure

Page 465 U. S. 601

Under the Court's holding, in contrast, Grove City College is prohibited from discriminating on the basis of sex in its own "financial aid program," but is free to discriminate in other "programs or activities" operated by the institution. Underlying this result is the unstated and unsupportable assumption that moneys received through BEOG's are meant only to be utilized by the College's financial aid program. But it is undisputed that BEOG moneys, paid to the institution as tuition and fees and used in the general operating budget, are utilized to support most, and perhaps all, of the facilities and services that together constitute Grove City College. [ Footnote 3/14]

The absurdity of the Court's decision is further demonstrated by examining its practical effect. According to the Court, the "financial aid program" at Grove City College may not discriminate on the basis of sex because it is covered by Title IX, but the College is not prohibited from discriminating in its admissions, its athletic programs, or even its various academic departments. The Court thus sanctions practices that Congress clearly could not have intended: for example, after today's decision, Grove City College would be free to segregate male and female students in classes run by its mathematics department. This would be so even though

Page 465 U. S. 602

the affected students are attending the College with the financial assistance provided by federal funds. If anything about Title IX were ever certain, it is that discriminatory practices like the one just described were meant to be prohibited by the statute.

The Court, moreover, does not offer any defensible justification for its holding. First, the Court states that it has "no doubt" that BEOG's administered through the Regular Disbursement System (RDS) are received, not by the entire College, but by its financial aid program. Thus, the Court reasons, BEOG's administered through the Alternative Disbursement System must also be received only by the financial aid program. The premise of this syllogism, however, simply begs the question presented; until today's decision, there was considerable doubt concerning the reach of Title IX in a college or university administering BEOG's through the RDS. Indeed, the extent to which Title IX covers an educational institution receiving BEOG's is the same regardless of the procedural mechanism chosen by the college to disburse the student aid. With this argument, therefore, the Court is simply restating the question presented by the case.

Second, the Court rejects the notion that the federal funds disbursed under the BEOG program are received by the entire institution because they effectively "free up" the College's own resources for use by all programs or activities that are operated by Grove City College. But coverage of an entire institution that receives BEOG's through its students is not dependent upon such a theory. Instead, Title IX coverage for the whole undergraduate institution at Grove City College is premised on the congressional intent that BEOG moneys would provide aid for the college or university as a whole. Therefore, whatever merit the Court's argument may have for federal moneys that are intended solely to benefit a particular aspect of an educational institution, such as

Page 465 U. S. 603

a research grant designed to assist a specific laboratory or professor, see n. 13, supra, the freeing-up theory is simply irrelevant when the federal financial assistance is meant to benefit the entire institution.

Third, the Court contradicts its earlier recognition that BEOG's are no different from general aid to a college or university by claiming that "[s]tudent financial aid programs . . . are sui generis." Ante at . Although this assertion serves to limit severely the effect of the Court's holding, it is wholly unexplained, especially in light of the forceful evidence of congressional intent to the contrary. Indeed, it would be more accurate to say that financial aid for students is the prototypical method for funneling federal aid to institutions of higher education.

Finally, although not explicitly offered as a rationale, the Court's holding might be explained by its willingness to defer to the Government's position as it has been represented to this Court. But until the Government filed its briefs in this case, it had consistently argued that Title IX coverage for the entire undergraduate institution operated by Grove City College was authorized by the statute. See ante at , n. 10, 570. The latest position adopted by the Government, irrespective of the motivations that might underlie this recent change, is therefore entitled to little, if any, deference. Cf. North Haven, 456 U.S. at -523, n. 12, -539, n. 29 (deference not appropriate when "there is no consistent administrative interpretation of the Title IX regulations"). The interpretation of statutes as important as Title IX should not be subjected so easily to shifts in policy by the executive branch.
III
In sum, the program-specific language in Title IX was designed to ensure that the reach of the statute is dependent upon the scope of federal financial assistance provided to an institution. When that financial assistance is clearly

Page 465 U. S. 604

intended to serve as federal aid for the entire institution, the institution as a whole should be covered by the statute's prohibition on sex discrimination. Any other interpretation clearly disregards the intent of Congress and severely weakens the antidiscrimination provisions included in Title IX. I therefore cannot join in Part III of the Court's opinion.

[ Footnote 3/1]

There is much to commend the suggestion, made by JUSTICE STEVENS, that unnecessary to the resolution of this case and unsupported by any factual findings made below. See ante p. (concurring in part and concurring in result). Because the Court has not heeded that suggestion, however, I feel compelled to express my view on the merits of the issue decided by the Court.

[ Footnote 3/2]

The prohibitory section of Title VI provides that

"[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

For reasons explained infra, at -586, the version of Title IX that was eventually enacted by Congress is for all relevant purposes identical to this provision. See ante at , n. 1, for the text of Title IX.

[ Footnote 3/3]

[ Footnote 3/4]

See also 117 Cong.Rec. 30408 (1971) ("I doubt very much whether even one institution of higher education today, private or public, is not receiving some Federal assistance") (remarks of Sen. Bayh).

[ Footnote 3/5]

[ Footnote 3/6]

See, e.g., id. at 7059 (1964) (remarks of Sen. Pastore); id. at 7063 (remarks of Sen. Pastore); id. at 7067 (remarks of Sen. Ribicoff); id. at 8507-8508 (remarks of Sens. Smathers and Allott); id. at 12714-12715 (remarks of Sen. Humphrey); id. at 12818 (statement of Sen. Dirksen); id. at 14330-14331 (remarks of Sen. Williams).

[ Footnote 3/7]

Another illustration included in the Department's Title VI regulations referred explicitly to federal moneys granted to elementary and secondary schools:

"In the Federally affected area programs . . . for construction aid and for general support of the operation of elementary or secondary schools, or in programs for more limited support to such schools such as for the acquisition of equipment, the provision of vocational education, or the provision of guidance and counseling services, discrimination by the recipient school district in any of its elementary or secondary schools in the admission of students, or in the treatment of its students in any aspect of the educational process, is prohibited. In this and the following illustrations, the prohibition of discrimination in the treatment of students . . . includes the prohibition of discrimination among the students . . . in the availability or use of any academic, dormitory, eating, recreational, or other facilities of the grantee or other recipient."

45 CFR § 80.5(b) (1972).

[ Footnote 3/8]

In North Haven, we concluded that the word "it" in this sentence refers to "education program or activity," rather than "recipient." 456 U.S. at , n. 30. Even with this limiting construction, however, the regulations still apply to any education program or activity which "receives or benefits" from federal assistance. In any event, given the Department's own interpretation of the words quoted in the text, our limiting construction may have been unjustified. See HEW Fact Sheet Accompanying Final Title IX Regulation Implementing Education Amendments of 1972, p. 3 (June 1975) ("Except for the specific limited exemptions set forth below, the final regulation applies to all aspects of all education programs or activities of a school district, institution of higher education, or other entity which receives Federal funds for any of those programs").

[ Footnote 3/9]

The sponsor of this second resolution explained the basis for his proposal to his Senate colleagues:

"[T]here is not a college athletic department anywhere in the country that receives Federal funds. The intercollegiate athletics provisions of the regulations are thus inconsistent with the statute, in that they impose requirements on college programs not receiving Federal assistance."

"HEW attempts to surmount this obvious inconsistency through recourse to semantics. The statute clearly refers to programs receiving Federal assistance, and the courts have established that programs are in fact separable. Yet HEW argues, when pressed, that its authority includes not only those programs actually receiving Federal assistance, but those which indirectly benefit from that assistance as well. Thus, according to this tortious logic, college football receives Federal assistance because it may benefit indirectly from federally guaranteed student loans unrelated to athletics or a student athlete may use the school library whose construction was assisted by Federal funding. Needless to say, this is a rather slender reed upon which to base a social policy of this magnitude."

121 Cong.Rec. 22941 (1975) (remarks of Sen. Laxalt).

Despite this rhetorical flourish, Congress has consistently endorsed the Department's regulation of college athletic programs, and indeed has affirmatively required such regulations. See, e.g., Pub.L. 93-380, § 844, 88 Stat. 612 ("The Secretary shall prepare and publish . . . proposed regulations implementing the provisions of title IX . . . relating to the prohibition of sex discrimination in federally assisted education programs which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports"). See also Brief for Council of Collegiate Women Athletic Administrators as Amicus Curiae 4-16. Cf. Haffer v. Temple University, 524 F.Supp. 531 (ED Pa.1981), aff'd, 688 F.2d 14 (CA3 1982). The opinion for the Court, limited as it is to a college that receives only "[s]tudent financial aid . . . [that] is sui generis," ante at , obviously does not decide whether athletic programs operated by colleges receiving other forms of federal financial assistance are within the reach of Title IX. Cf. 688 F.2d at 15, n. 5 (discussing the many forms of federal aid received by Temple University and its athletic department).

[ Footnote 3/10]

See also e.g., 1975 Hearings, at 90 (testimony of Kathy Kelly, President, U.S. National Student Association); id. at 163-166 (testimony of Rep. Mink); id. at 187-191 (memorandum of American Law Division, Library of Congress); id. at 191-196 (memorandum of Center for National Policy Review); id. at 284-285 (statement of Norma Raffel, Head, Education Committee, Women's Equity Action League); id. at 385-388 (testimony of Dr. Bernice Sandler, Director, Project on the Status and Education of Women, Association of American Colleges). But see, e.g., id. at 49 (testimony of Darrell Royal, President, American Football Coaches Association); id. at 98-99 (testimony of John A. Fuzak, President, National Collegiate Athletic Association); id. at 231-232 (statement of Dallin H. Oaks, President, Brigham Young University); id. at 403-406 (testimony of Janet L. Kuhn).

[ Footnote 3/11]

"First, payments to veterans enrolled at approved schools serve to defray the costs of the educational program of the schools, thereby releasing institutional funds which would, in the absence of federal assistance, be spent on the student. . . ."

"[S]econd . . . the participation of veterans who -- but for the availability of federal funds -- would not enter the educational programs of the approved school benefits the school by enlarging the pool of qualified applicants upon which it can draw for its educational program."

"Finally, . . . [g]rant programs frequently use institutions as conduits through which federal funds or other assistance pass to the ultimate beneficiaries. Clearly, Title VI attaches to a recipient acting in that capacity. . . . The altered method of payment under the current statutes [under which federal moneys go directly to the students] does not change the nature of the program or the basic role of the schools participating in the program. . . . [T]he nondiscriminatory participation of these schools is essential if the benefits of these statutes are to flow to beneficiaries without regard to race."

396 F.Supp. at 602-603 (footnotes omitted). The court also explained that coverage of the college's educational program was fully consistent with the congressional purpose underlying Title VI. See id. at 604.

[ Footnote 3/12]

In 1974, after the Department had published its proposed regulations for Title IX, the Congress excepted social fraternities and sororities and voluntary youth service organizations from the statute's reach. Pub.L. 93-568, § 3(a), 88 Stat. 1862 (codified at 20 U.S.C. § 1681(a)(6)); see 120 Cong.Rec. 41390-41394 (1974). Later, in 1976, Congress provided statutory exemptions for activities related to Boys/Girls State/Nation conferences, father-son or mother-daughter activities (if reasonable opportunities exist for the opposite sex), and collegiate scholarships awarded to "beauty" pageant winners. Pub.L. 94-482, § 412(a), 90 Stat. 2234 (codified at 20 U.S.C. §§ 1681(a)(7-9)); see 122 Cong.Rec. 27979-27987 (1976). Obviously, since none of these activities receive direct federal support, these amendments would have been superfluous unless Title IX was otherwise to be applied to such activities when conducted by educational institutions receiving federal funds.

"should not be amended or altered in any manner which will lessen the comprehensive coverage of such statute in eliminating gender discrimination throughout the American educational system."

H.Res.190, 98th Cong., 1st Sess. (1983); 129 Cong.Rec. H10085-H10095, H10100-H10101 (Nov. 16, 1983). See H.R.Rep. No. 98-418 (1983). See also S.Res. 149, 98th Cong., 1st Sess. (1983). After today's Court decision, it will take another reaffirmation of congressional intent, in the form of a clarifying amendment to Title IX, to ensure that the original legislative will is no longer frustrated.

[ Footnote 3/13]

Because I believe that BEOG moneys are intended by Congress to benefit institutions of higher education in their entirety, I find it unnecessary in this case to decide whether Title IX's reach would be the same when more targeted federal aid is being received by an institution. For such cases, it may be appropriate to examine carefully not only the purposes, but also the actual effects of the federal moneys received.

[ Footnote 3/14]

Although JUSTICE STEVENS properly notes that there have been no findings of fact on this particular point, see ante at -581 (concurring in part and concurring in result), even the Court is forced to concede the obvious, see ante at ("It is true, of course, that substantial portions of the BEOG's received by Grove City's students ultimately find their way into the College's general operating budget, and are used to provide a variety of services to the students through whom the funds pass"). The Court nonetheless ignores its own concession by claiming that there is "no persuasive evidence" that Congress intended to cover an entire institution of higher education in this situation. As I explain in however, the evidence of congressional intent is quite persuasive, if not convincing.

# data[].attributes.attachment_link.description
Grove City Coll. v. Bell, 465 U.S. 555 (1984) Grove City College v. Bell No. 82-792 Argued November 29, 1983 Decided February 28, 1984 465 U.S.

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Slide #10 Local Administrative Law/Policy/Rule

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Slide #10 Local Administrative Law/Policy/Rule

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Title IX at Angelo State University
The Title IX office offers a number of resources to students that breakdown the law for students to understand. This web page defines sexual misconduct and provides students with behaviors and examples of behaviors covered by ASU's sexual misconduct policy giving students a better understanding of the univerisities policy and Title IX.

References
Title IX at Angelo State University (n.d.) Retrieved from https://www.angelo.edu/services/title-ix/

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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

-Title IX of the Education Amendments of 1972

Angelo State University is committed to providing and strengthening an educational, working, and living environment where students, faculty, staff, and visitors are free from sex discrimination of any kind. In accordance with Title VII, Title IX, the Violence Against Women Act (VAWA), the Campus Sexual Violence Elimination Act (SaVE), and other federal and state law, the University prohibits discrimination based on sex and other types of Sexual Misconduct.

Prohibited Conduct

Sexual Misconduct is a broad term encompassing all forms of gender-based harassment or discrimination and unwelcome behavior of a sexual nature. The term includes sexual harassment, nonconsensual sexual contact, nonconsensual sexual intercourse, sexual assault, sexual exploitation, stalking, public indecency, interpersonal violence, sexual violence, and any other misconduct based on sex. While sexual orientation and gender identity are not explicitly protected categories under state or federal law, it is the University's policy not to discriminate in employment, admission, or use of programs, activities, facilities, or services on this basis. Discriminatory behavior is prohibited regardless of the manner in which it is exhibited, whether verbally, in writing, by actions, or electronically displayed or conveyed.

Behaviors & Examples of Behaviors Covered by ASU's Sexual Misconduct Policy

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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

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Principle IV - Justice
Operate within the framework of laws and policies
As student affairs professionals, it is vital to recognize our powers as university officials and execute them as the law and policies state we should protect the rights of students. The ethical principle of justice includes reporting any knowledge of sexual harassment or sexual misconduct. As part of this role and ethical principle, it is essential as an advocate of student success we inform students of our position as a mandatory reporter so we can empower them to make the right decision for themselves.

Reference
Council for Advancement of Standards (CAS). (2006) CAS statement of shared ethical principles. CAS. Retrieved from https://www.naspa.org/images/uploads/main/CASethicsstatement.pdf

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Know your IX
This website provides a number of resources covering Title IX, including knowing your rights, getting involved, to resources for hosting your own Title IX programs. The website includes definitions of the role of a Title IX Coordinator, notices of nondiscrimination, clear grievance producers, and prompt responses to violence. It is a great resource for both professionals and students.

References
Know your IX (n.d) Retrieved from https://www.knowyourix.org/college-resources/title-ix/

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Under Title IX of the Education Amendments of 1972:

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Slide #13 Recommendations/Best Practices for Compliance

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Slide #13 Recommendations/Best Practices for Compliance

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Under Title IX of the Education Amendments of 1972: No person in the United States hall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Schools must have an established procedure for handling complaints of sexual discrimination, harassment, and violence.

Continued training for members of the Title IX team and all mandatory reported, including student staff members that are considered to be mandatory reporters.

Practices for professional staff members to stay up to date on the changes to Title IX coming from the Trump administration in the form of monthly newsletters from a professional association or the Title IX office

More training from outside resources like ATIXA

Mid-year checks on student knowledge of Title IX and how it impacts them.