Title IX and Equal Protection

Title IX

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

Authority/Source of Law for Title IX

Spending Clause

Spending Clause

congress has power to lay and collect taxes, duties, imposts, and excises to pay debts and provide for common defence and general welfare of US 

Relevance of Spending Clause to Title IX

if people have a private right to sue or get money  

does not allow Congress to regulate conduct; instead, it only authorizes Congress to spend money

Government makes receipt of federal funding conditional on an agreement not to discriminate on basis of sex 

Not only in terms of who can sue but whether recipients of federal funding had notice that the conduct they were being sued about was actually illegal - Whether they knew they should be doing something about the conduct or not

Interpreting sources of law

1. Understand the history -Jurisprudential history and text 

2. How have courts interpreted the words within constitutional provision or within statute 

   1. What they meant at the time 

   2. What they have been interested to mean now 

3. Understand how the law developed

4. Know why amendment was adopted or not adopted (in case of equal rights amendment) 

5. Why was it drafted 

6. What problems were the framers trying to address 

7. If statute- whats constitutional authority for it

Who does Title IX protect?

Men and Women

Uses the language “both sexes” —> limited to binary

What does Title IX prohibit?

discrimination by recipients of federal funding

unequal treatment of women and men—> protects both

Does Title IX explicitly outlaw conduct?

No, it is a contract

if you agree to take the money, you are agreeing not to discriminate on basis of sex

can lose federal funding if you violate the conduct

What do courts use to interpret Title IX?

Courts often look to title 7 or look to interpretations of title 6 to see how those have been applied 

Don't always apply exactly the same but they consider it 

Title 6 was the model for title 9

Original purpose of Title IX

Women were denied access to professional opportunities; enforced to provide more opportunities

Title IX Exceptions

• Religious organizations 

• Sororities and fraternities 

• Boys or girl conferences 

• Father-son or mother daughter activities 

• Beauty pageants 

• Military academy

Administrative Enforcement of Title IX- Where do you file?

Office of Civil Rights (OCR)

Administrative Enforcement of Title IX- Who would file?

any one can file

Administrative Enforcement of Title IX- who can you file on behalf of?

individual or everyone

Administrative Enforcement of Title IX- relief?

potentially termination of funding

enforcement and monitoring

not empowered to make victims whole or compensate complainants in any way

Things OCR can take into consideration with title ix

Disparate impact

When certain policies have adverse impact on one sex or another they will investigate that, try to rectify it, and try to get schools to change their policies 

Can look at statistics and based on only statistics say they think the imbalance is too stark and we want you to fix it 

Disparate Impact

when policy or law appears neutral on its face it can still be discrimination if it disproportionally and negatively affects members of a protected class without a valid reason

When was title ix enacted?

1972

Court enforcement of title ix- where do you file

court

Court enforcement of title ix- who would file?

Attorney on behalf of the injured 

An individual must have standing to sue the institution meaning he has to be the alleged victim of discrimination 

Court enforcement of title ix- on behalf of whom?

individual or everyone

Court enforcement of title ix- relief?

• Declaratory relief 

• Injunctive relief 

• Asking discrimination to stop 

Sexual Harassment in Title 9

Power imbalance, form of discrimination → using sex based power to subordinate females 

No federal law prohibits sexual harassment - recognized in Meritor case 

There are state statutes and local ordinances and company policies 

Quid pro quo harassment 

Person in a position of power conditions a favorable assignment or decision on the satisfaction of a sexual demand 

Hostile environment harassment 

Plaintiff subjected to sex based mistreatment (verbal or physical) that alters the conditions of employment or ability of victim to equally access education

Proof required for sexual harassment in schools

• School had notice or knowledge 

• Sex based mistreatment 

• Severe, pervasive AND objectively offensive 

  • Denies access of educational opportunities 

• Deliberately indifferent 

Proving title 9 discrimination - Facially discriminatory

• Does the policy explicitly distinguish people based on sex? 

• How does the policy exclude, disadvantage, or deny benefits to someone based on sex? 

• Does this violate Title IX? 

  • Look at exceptions 

Proving title 9 discrimination - Facially neutral

• Is there a disparate impact? 

• Is there disparate (purposeful) treatment? 

• *Need both 

• (for court cases—> it is not enough to just have the disparate impact)

Title 9 Athletics

• Includes club and intramural sports and makes no distinction between division 1 2 or 3 sports 

• Both sexes→ assumes binary 

  • Male and female 

Subpart B of Title 9 athletic regs

Can have separate teams 

Rationale 

• Safety - physical differences 

  • This is why they include contact sports 

• Equal athletic opportunity/ competitive fairness 

Safe Harbor Athletics Title IX

Proportionality

Program Expansion

Interest and Ability

**only need one

Proportionality 

• Are athletic participation opportunities for male and female students substantially proportionate to their respective enrollment?

• Compare each sex's share of athletic participation opportunities with its share of enrollment.

Program expansion 

Does the school have a history and continuing practice of expanding athletic opportunities for the sex that is underrepresented?

Interest and ability

Does the school fully and effectively accommodate the athletic interests and abilities of the underrepresented sex?

Equal Protection Clause (EPC)

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws

When was EPC enacted?

1868

Original purpose of EPC

Passed after civil war to address particular issue of preventing discrimination against people who had formerly been enslaved 

EPC and Sex based categories

Supreme court shifted approach and realized that in certain situations men and women are similarly situated whereas before they had always regarded men and women as not similarly situated

• Because biologically were not similarly situated, they believed they were not similarly situated in any way 

Authority/ Source of law for EPC

Article 5

Constitutional amendment passed by by a two-thirds vote in both houses of Congress and then ratified by three-fourths (38 out of 50) of the states 

EPC- who does it protect?

everyone is entitled to the equal protection clause

the language is broad

EPC- what does it prohibit? 

Unequal treatment of similarly situated people 

Does not mention discrimination but it does prohibit it 

EPC- how does the Court interpret it?

• Over time, court expanded interpretation of clause to apply to other groups

• By terms→ says only applies to states 

  • Supreme court has interpreted this to mean government generally 

    • Federal and state government 

• Unequal treatment of similarly situated people 

EPC enforcement- where would you file?

court (EPC)

EPC enforcement- who would file?

attorney or pro se litigant

EPC enforcement- on behalf of whom?

• An individual or class of individuals 

• Person needs to have standing 

  • Harmed by policy you are challenging 

EPC enforcement- what claims would you file

• Per se discriminatory on face 

• As applied 

as applied claim

client was discriminated against by policy as it was applied/ being enforced by the school 

EPC enforcement- relief?

• Ask to get rid of policy 

• Declare school is violating constitution and they need to stop and correct the action

• No damages 

  • Only through § 1983 

EPC enforcement- process

File complaint, school filed answer, motion to dismiss (survives), discovery, motion for summary judgement (survive), go to trial 

EPC proving discrimination- facially discriminatory

If you have a policy that facially classifies or discriminates, we presume it is unconstitutional unless the government can rebut that presumption by showing (based on which level of scrutiny applies)

EPC proving discrimination- facial discrimination (sex)

If you have a policy that facially classifies or discriminates, we presume it is unconstitutional unless the government can rebut that presumption by showing the classification is substantially related to the government interest

presumption of discrimination based on being sex specific

burden shifting framework

EPC proving discrimination- facially neutral

If policies are facially neutral, courts will apply rational basis and burden is on the plaintiff to show policy is not rationally related to a legitimate government interest. Unless plaintiff can show through evidence discriminatory motive 

Need to prove negative which is must harder 

Almost all policies will survive that

EPC proving discrimination- plaintiffs burden

Either show not rationally related to legitimate government interest OR show motive, animus, bias 

dont need both

Showing motive, animus, bias

Evidence of things people said, memos, transcripts from board meetings 

proving intent

Title VI

No 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 

Title VI- date enacted

1964

Title VI- authority/source of law

spending clause

Title VI- who it regulates

recipients of federal funds

Title VI- who it protects

blacks, whites, asians, hispanics, jewish (if judaism if considered ethnicity- which DOE determined it is) , racial categories

Title VI- what it prohibits

Discrimination by recipients of federal funding 

Discriminatory intent doctrine

Argument against allowing disparate impact claims in itself 

• Over inclusive 

  • Able to argue almost anything is discriminatory or can argue it EITHER way 

Title VII

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin

Title VII- date enacted

1964

Title VII- authority/ source of law

commerce clause

• Reason congress can regulate the employment relationship is because the employment relationship if you have 15 or more employees there is a significant impact on interstate commerce 

• Because congress has right to regulate and legislate in area of interstate commerce, it can make rules about employment relationship 

Title VII- who it regulates

Employers of 15 or more people

Title VII- who it protects

men, women, people of different religions, people of different national origins, people of different race, people of different color

Title VII- what it prohibits

Employment discrimination on basis of race, color, religion, sex, or national origin 

§ 1983

• Bringing a suit under this section is saying an individual discriminated against you and harmed you under color of state law 

• Can sue for damages 

  • Allows for monetary relief 

• Can be used to enforce equal protection clause 

• A way to sue individuals for money 

Equal rights amendment (ERA)

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Proposed in 1971 but never ratified 

Opponents of ERA

If this passes, never be able to be any differences between men and women in law 

• If this passes, your daughters will be drafted

Tiers of scrutiny

• Burden shifting frame work and method of proof because certain classifications when written into law are presumptively invidious 

• Strict, intermediate/heightened, rational basis 

Deciding which tier of scrutiny to use

Test depends on the classification that the law or action makes and or the rights that are affected 

Rational Basis

• Tests of reasonableness 

• Did state have reasonable purpose for passing the law 

• Is there some difference between the two classes or groups of people that makes it reasonable to treat them differently? 

• Have to answer yes to both questions to be valid 

• rationally related

Strict scrutiny

• Test most likely to invalidate a law 

• Classify on basis of race or national origin as well as certain fundamental rights 

• Suspect classifications 

• Does the state have a compelling governmental interest in passing the law 

• is it narrowly tailored to achieve that interest?

• Is the legal classification absolutely necessary to accomplish that purpose? 

Intermediate scrutiny

• Applied most often in cases challenging classification made on basis of sex 

• classifications by sex are constitutional only if they

  •  (1) serve important government objectives 

  • (2) are closely and substantially related to the achievement of those objectives. 

Title IX vs Title VII

• Title VII is more detailed than title IX 

• Title VII provides explicit administrative mechanisms for bringing a case  

• Title VII passed under commerce clause; Title IX under spending 

• Title VII can regulate employment relationships through commerce clause 

• Under Title IX, congress does not have right to make rules about the relationship between students or schools and students but does have a right to put conditions on the money it gives - spending clause

Title IX vs Title VI

• Both under spending clause 

• Title VI does not apply to sex 

• Title IX only applies to sex 

• Title IX is modeled after title VI 

• Supreme court rules title VI is coextensive with 14th amendment, title IX must also be coextensive with equal protection clause 

• Both prohibit discrimination by recipients of federal funding 

Why is it important that the EPC does not mention race or sex?

• It can be applied to different categories of discrimination 

• Able to be interpreted broadly and apply to all

• Courts determine level of scrutiny 

Different types of interpretation

originalism

living constitutionalism

Originalism

• should be interpreted according to its original meaning when the relevant text was adopted.

• Focuses on historical text, context, and original public meaning.

• Judges generally should not update constitutional meaning simply because society changes.

Living constitutionalism

• Constitutional principles are interpreted in light of changing social conditions and contemporary understandings.

• Emphasizes the Constitution's enduring principles as applied to modern circumstances.

• Allows constitutional doctrine to develop over time.

• Modern understanding 

Reed v Reed

• facts: Challenge to provisions of Idaho probate code giving preference to a male parent over female parent when both applied to be administrators of deceased sons estate 

• rule: Government must treat similarly situated men and women the same

Yick Wo v Hopkins

• Court said use clause anytime similarly situated people are treated differently on basis of race generally 

• Expanded beyond african americans; first time court used similarly situated in discrimination law cases (used in economic cases previously) 

Stauder v West Virginia 

• 14th amendment prohibits state from excluding blacks from criminal jury pool 

Plessy v Ferguson

• Requirement that railway cars be segregated by race is facially neutral and applies equally to both whites and blacks 

• Established separate but equal doctrine 

• (overturned by brown v board of education)

United States v Carolene Products Co

• Court should apply more exacting judicial scrutiny to laws that are directed at members of discrete and insular minority groups who are politically powerless 

• Courts correct to presume legislature act rationally when passing ordinary legislation but where legislation involves racial, national, or religious minorities who lack political power, no such presumption exists 

Brown v Board of Education

• Applied stones exacting scrutiny to laws requiring separate schools for black and white students, holding government imposed school segregation violates 14th amendment's guarantee of equal protection  

• marked when court began to strictly scrutinize government laws involving suspect classifications

Frontiero v Richardson

• Court held the government could not offer different benefits to married women and married men in the uniformed services 

• Equal protection clause prohibits government discrimination on the basis of immutable characteristics 

• Four justices (needed 5) thought sex should be strict scrutiny

Craig v Boren

• gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment.

• *first case to articulate that sex based classifications must be substantially related to an important government interest creating a third tier of analysis → intermediate scrutiny 

Mississippi Univ for Women v Hogan

• Statute excluded males from enrolling in state sponsored nursing school 

• A state statute that discriminates on the basis of gender may be unconstitutional if the statutory objective itself reflects archaic and stereotypical notions relating to gender.

United States v Virginia

• VMI’s policy of excluding women from admission denied women equal protection of the laws

• All government gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification

Grove City v. Bell 

• If there is a single student who gets federal loans, school is a recipient of federal money and have to comply with title six and title nine 

• Title IX’s protections extended only to specific program or activity that directly received federal funding 

Washington v Davis

• Doctrine of discriminatory intent 

• Demographic disparities may constitute evidence of discriminatory intent 

• Disparate impact in and of itself is almost never sufficient to prove discrimination

Personnel Admr. of Mass v Feeney 

• Supreme court upheld MA veterans preference law that significantly advantaged men 

• No proof enacted for purpose of disadvantaging women 

Cannon v University of Chicago

• Allowed private litigants to sue to enforce title IX 

• Supreme court held the words and history of title IX and statutes subject matter and underlying purpose favor implying right of private victims to sue for relief

Franklin v Gwinnett County Public Schools 

• Allowed private parties to seek damages in title IX lawsuits 

• Female high school student brought suit under title IX against school district seeking monterey damages for its alleged failure to stop ongoing sexual abuse targeted at her by male teacher 

• Supreme court reasoned that if title ix implied private cause of action, then so too did it imply all available remedies

Trump v Maine

• Even if the federal government believes a state is violating Title IX, it must follow the statutory procedures required for terminating or withholding federal financial assistance. 

• Federal funding sanctions for Title IX violations must have a lawful connection to the alleged violation and comply with the procedures and scope limitations Congress established.

Fitzgerald v Barnstable School Comm

• Contours of title 9 and rights under equal protection are different 

  • Title 9 has exceptions 

  • Equal protection doesn't 

• Rights afforded different under both statutes 

• No reason cant pursue claims under both since not same rights 

• 1983 suits based on equal protection clause remain available to plaintiff alleging unconstitutional gender discrimination in schools 

• 
  

Bostock v. Clayton County

• Sex as in title 7→ applies just to biological 

• Statute protects men and women from being treated differently in workplace 

• Won because he was a biological man treated differently than biological women 

  • Treated men who wear skirts to work differently than women who wear skirts to work 

North Haven

• Title 9 will apply to teachers and staff 

• Statute said it discriminates against people or persons 

  • Not student 

• Good example of statutory construction

• First look at text, words of statute→ person 

  • Statute says persons not student 

• Then look at title 6 → title 9 

  • Title 9 passed before title 6 excluded teachers→ drafters must have intended to include teachers