Title IX and Minority Rights
| | Title IX
Under Title IX of the Education Amendments of 1972, students and employees of colleges and universities are protected against discrimination on the basis of sex. Under Title IX, those protections extend to educational programs and activities, including campus athletics, Greek organizations, and other university clubs. Any college or university that receives federal funding, unless it is specifically exempt from Title IX, must comply with its requirements. Accordingly, schools are required to have a Title IX policy, and to conduct and complete Title IX investigations promptly when a person has filed a complaint. Title IX is designed to provide protections from sex discrimination, which can include sexual harassment and sexual assault, as well as from retaliation when a person exercises their rights under Title IX.
Individuals have brought claims under Title IX that contend that Title IX policies ultimately discriminate on the basis of race and that there is a disparate impact on racial minority groups. In the future, we may see claims of disparate impact on or lack of effectiveness at protecting sexual and gender minorities as well.
Title IX and Disparate Impact on Minority Communities
Does Title IX have a disparate impact on minority communities? According to an article in the Nevada Law Journal, “increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities.” This article links the disparate impact of Title IX enforcement on Black Americans to a much longer history of disparate treatment of Black students across the K-12 and university system. What policies and practices does this article speak to?
Commentators argue that Title IX guidelines, along with other issues of discrimination on the basis of race, have more significantly harmed minority communities. More specifically, more Black students at colleges and universities have disproportionately faced allegations of sexual assault or sexual misconduct under Title IX.
For example, in an article in The Atlantic, Emily Yoffe explains that statistics concerning race and Title IX complaints have not been clearly tracked, but there is much anecdotal evidence to support the idea that more Black men on college campus face Title IX allegations than other students. This is happening even while Black men make up a much smaller percentage of the student body. Yoffe cites a Harvard Law Review article from 2015 in which Janet Halley, a Harvard Law School professor, explains how “case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents.”
Unequal Impact in Sports
While Title IX policies have provided undoubted benefits to female athletes, many of those who have studied the results report that the benefits did not extend to all female athletes equally. Specifically, they argue that white women are reaping the benefits while black female athletes are being left out.
Statistics from the National Center for Education Statistics show that of the women enrolled in college in 2020, approximately 53% were white, and almost 15% were black. However, the NCAA Demographics Database shows that for the same year, white women made up 68% of the female student athlete population while black women accounted for less than 11% of the female student athlete population. Black female participation in sports on campus is not proportionate to their college enrollment.
This gap may be due to the lack of opportunities at the high school level. A study by the National Women’s Law Center shows that 40 percent of high schools with a mostly-minority student base have a significant gap in sports opportunities for female students. By contrast, similar opportunity gaps are found in only 16% of schools with a mostly-white student base. The study also reported that girls of color are less likely to participate in sports outside of school than white girls are.
While many people recognize these discrepancies, significant debate continues about how to address the problem. Some feel that Title IX policies cannot fulfill their purpose without taking race and income into account. Others see Title IX as a gender and sex-focused effort that is not equipped to address other issues and that additional policies are required to bridge the gaps.
Sexual and Gender Minorities
At the time of Title IX’s passage, sexual and gender minorities were not considered by many of the policy’s proponents. Today, however, their concerns are finding an attentive audience.
Victims’ advocates report that LGBTQIA+ students are reluctant to report Title IX offenses on campus because they feel that Title IX officers and policies are not equipped to serve their needs. Advocates also reported frustration with policies that mandated formal complaints regardless of students’ wishes. While mandatory reporting requirements were removed with the regulatory changes in 2020, they are likely to return in some form when the new regulations are released shortly.
The new regulations are expected to define sex-based harassment to include harassment based on sexual orientation and gender identity, which should solidify protections for sexual and gender minority students. However, it will be necessary to collect much more detailed data than in the past to determine whether students of racial minorities, as well as sexual and gender minorities, see benefits from the complaint processes and other requirements of Title IX policies.
Protections and Rights for Members of Minority Communities
If racism and racial biases, whether explicit or implicit, do play a role in Title IX allegations and/or Title IX complaints, then students facing sexual misconduct allegations as a result of discrimination on the basis of race must have protections. Title IX does not provide any specific protections for those accused who may be victims themselves of discrimination.
Yoffe explains that a number of students who have been in such a position have filed civil lawsuits against their colleges or universities, alleging that discrimination on the basis of race played a role in their Title IX case. The Civil Rights Act of 1964 provides protections to students against discrimination on the basis of race. Under Title IV, all public education institutions, including public colleges and universities, are prohibited from discriminating against a student on the basis of race. Title VI of the Civil Rights Act of 1964 prohibits discrimination in any programs or activities that receive federal financial assistance, which includes nearly all colleges and universities in the country.
Contact a Title IX Attorney to Seek Representation in Your Case
At Nesenoff & Miltenberg, LLP, our Title IX attorneys have experience representing students, faculty, staff, and other employees in cases pertaining to discrimination on the basis of sex. We regularly advise clients on matters pertaining to Title IX violations and sexual misconduct allegations, and we are prepared to answer questions you have about Title IX and any disparate impact on minority communities. It is important to understand the protections that may be available to students and faculty of color on college and university campuses. One of our Title IX attorneys can speak with you about those possibilities. While we are located in New Haven, Connecticut, we provide representation to clients throughout the U.S. concerning Title IX cases. Contact Nesenoff & Miltenberg, LLP to learn more about how our attorneys can help with your case.