By Leah J. Reynolds, Ed.D., Consultant, TNG
Title IX of the Education Amendments Act of 1972 has been the subject of controversy from many angles since its inception. One topic that has recently sparked much debate under the current regulations is the conditions under which a complainant can seek remedial action from a federal funding recipient if they are subjected to sex discrimination, including sexual harassment and sexual assault. Many have questioned whether third parties and affiliates are afforded protections under Title IX if they are subjected to discriminatory behaviors by a recipient in an education program or activity. The answer is simple. Yes.
Recipients are held accountable for Title IX compliance by two distinct entities: the Department of Education’s Office for Civil Rights (OCR) and the courts. The OCR and the courts are two independent entities that often operate in parallel with each other when it relates to Title IX compliance. First, let’s examine the courts.
The courts can assert jurisdiction over Title IX claims when an individual files a civil lawsuit against a recipient.[1] Courts determine Title IX liability by assessing if a recipient was deliberately indifferent in its response to sex discrimination. Courts can also assess whether a recipient was negligent in its response to sex discrimination. The common denominator for the courts in assessing deliberate indifference and negligence is the recipient’s response to sex discrimination.
When a recipient has control over the respondent (as a student or employee), and the complainant uses institutional facilities or programs – even if they are not a student or employee – courts have expected recipients to reasonably respond to alleged sex discrimination in light of the known circumstances and to maintain a discrimination-free environment. You might see this is the case of an alum who often returns to the school library for research needs post-graduation, or in the common situation of complaints by a user of a campus fitness facility that is open to the larger community, who is sexually harassed in that facility by a student or staff member. Therefore, from the courts’ perspective, a complainant who is not affiliated with the recipient should not be without remedy solely because they are not a member of the recipient’s community, if they are reasonably seen as participating in the institution’s education program. The OCR perspective is slightly different.
The OCR is responsible for establishing administrative compliance standards to be applied in recipients’ responses to alleged sex discrimination under Title IX. To accomplish this, the OCR provides regulations for recipients to follow when they have knowledge of sex discrimination. When a recipient has knowledge of sex discrimination, the recipient is expected to stop the behavior, prevent its recurrence, and remedy any effects the sex discrimination has had, not only the victim, but on any member of the recipient’s community who was impacted by the behavior.
The confusion on whether a third party has standing under a recipient’s policy relates to specific jurisdictional requirements within the 2020 Title IX regulations, which are specifically focused on recipients’ responses to sexual harassment. Section 106.30 of the regulations states “that at the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program, or activity of the recipient with which the formal complaint is filed.” This jurisdictional requirement created doubt that Title IX protects third-party complainants, as they would not be participating or attempting to participate in the recipient’s education program or activity from the literal standpoint of not being an enrolled student or an employee. However, the language in the 2020 regulations has a much broader interpretation that has recently been officially acknowledged in a March 28, 2022 letter from OCR’s Program Legal division to ATIXA.
First, let’s reflect on the language of the Title IX statute itself which begins with “No person in the United States.” “No person” includes third parties. Second, there are two distinct sections within the regulations that address a recipient’s ability to resolve complaints made by complainants who are not participating or attempting to participate in a recipient’s education program or activity. First, Section 106.6 explains that recipients should not interpret any part of the regulations as permission to infringe upon a person’s constitutional protections, such as the First, Fifth, and Fourteenth Amendments. The second mention is in Section 106.45 following the provisions for dismissal of a formal complaint which states, “such a dismissal does not preclude action under another provision of the recipient’s code of conduct.”
This reasonable, broad interpretation of Sections 106.6 and 106.45 includes third-party protections. This can be accomplished by using the set of institutional procedures that is most applicable (e.g., code of conduct, HR policies) and which do not have to conform to the procedural elements required by Section 106.45. At TNG and ATIXA, we affectionately refer to these procedures as “Process B.”
While this interpretation represents one approach recipients can take, OCR has recently provided additional clarification worth exploring. In July 2021, OCR issued a Q&A document: https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf. This document seemed to change prior ED interpretation of the provision in the regulations related to whether a complainant was “participating or attempting to participate” in a recipient’s education program, with respect to mandated complaint dismissal. ATIXA wrote to OCR to clarify whether this was an intentional change in policy, and on March 28, 2022, OCR’s Program Legal responded in writing to ATIXA that it was in fact an intentional change.
OCR has reinterpreted the rule on who is “participating or attempting to participate” (P/ATP) in the recipient’s education program, and this directly impacts third-party standing. OCR now contends that a Title IX Coordinator should sign a formal complaint when a complainant is not P/ATP – and must do so to avoid being deliberately indifferent – in any situation that poses an ongoing risk of harm to the recipient community. This is a significant reinterpretation of the DeVos-era rule by OCR. For most recipients, the practice had been to dismiss a complaint if the complainant was not P/ATP. Now, it is clear that if a complainant is not P/ATP (former student, alum, third party), if the Title IX Coordinator signs the complaint, and the conduct falls within the definitions of Section 106.30, then the recipient shall not dismiss the complaint. Thus, the Title IX Coordinator has authority to grant standing to a non-P/ATP complainant in any case where pattern, predation, threats, violence, weapons, minors, or other factors represent an ongoing risk of potential harm that must be addressed. This may sound logical, and it is a welcome reinterpretation, because the DeVos-era interpretation was not.
Recipients should always be working to maintain an environment that is free from sex discrimination, which includes all forms of sexual harassment. This goal should not change depending upon the complainant’s status as a member of the recipient’s community. There are always external resources that can be offered to any complainant and Title IX Coordinators should be offering these resources as appropriate. One reasonable reading of the placement of the regulatory dismissal provision related to whether the complainant is participating or attempting to participate in the recipient’s education program is that even if a complaint is dismissed on this basis, the complainant should still be offered supportive measures by the institution. Doing nothing in response to sex discrimination allegations will certainly produce an outcome Title IX was created to prevent.
Therefore, it is wise to:
- Clearly state in your policies and procedures how complaints involving third parties will be resolved. Refer to ATIXA’s 1P2P model.
- Address all formal complaints in accordance with established policies and procedures. As long as the recipient’s policies and procedures follow the regulations, and they are followed in practice, the courts will rarely find the recipient deliberately indifferent or negligent. Likewise, the OCR will have difficulty finding a recipient in violation of Title IX.
- Always provide complainants with available resources and information on how to file a criminal complaint against a respondent with law enforcement. This is a requirement under the Violence Against Women Act (VAWA) for colleges and universities for allegations of sexual assault, dating violence, domestic violence, and stalking.
- Update policies in light of the OCR letter to ATIXA from March 28, 2022. Where a complainant is not P/ATP, and the complaint otherwise falls within Title IX jurisdiction, policies should only require dismissal when a Title IX Coordinator has determined that they will not sign the complaint themselves. By signing the complaint, the non-P/ATP complainant’s complaint is valid under Title IX and will not be dismissed.
Regardless of how an institution addresses allegations of sex discrimination, case law and OCR resolutions have proven that doing nothing is frequently not an option.
[1] A school, college, or other educational entity that receives federal funding.