Reviewing Dear Colleague Letters on Title IX’s 45th Anniversary
Which Dear Colleague Letters issued by the Department of Education’s Office for Civil Rights have made the biggest impact?
In honor of the 45th anniversary of Title IX, Campus Safety thought it would be valuable to look back on the Dear Colleague Letters that have shaped the landmark sex equity law and consider how things have changed over the years.
At its core, Title IX states, “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.”
Of course the law has been interpreted and expanded in so many ways since those words were first signed into law by Richard Nixon in 1972. All aspects of a campus must be gender equitable, and entire institutions can now be found to be discriminatory by creating a hostile environment if they don’t address sexual harassment and assault, dating violence, stalking and other sexual violence issues.
Today the law affects so many aspects of schools and colleges that it must constantly be on the minds of campus administrators, whether they’re dealing with an issue related to athletics, student discipline, safety or other areas that fall under Title IX’s scope. So how did we get here?
To answer that question, we’ve put together a list of some of the most impactful Dear Colleague Letters issued by the Department of Education’s Office for Civil Rights since the turn of the century.
Again and again, these letters have proved to be pivotal moments in the way Title IX is enforced and the way schools come under compliance.
We should mention that Title IX’s impact on sports has been profound, but that is not the focus of Campus Safety and thus will not be covered in this article. Rather we focus on the Title IX Dear Colleague guidance that has affected the way schools and colleges handle sexual violence, harassment and other misconduct that affects student safety.
2001 Dear Colleague Letter
U.S. Supreme Court cases relating to sexual harassment in schools caused the Department of Education to revise some of its policies through this letter, most prominently the case of Gebser v. Lago Vista Independent School District. In that case, the Court ruled that “a school can be liable for monetary damages if a teacher sexually harasses a student, an official who has authority to address the harassment has actual knowledge of the harassment, and that official is deliberately indifferent in responding to the harassment.” Another case furthered those standards to apply in student-on-student harassment.
Beyond those provisions, the 2001 Dear Colleague Letter largely reaffirmed compliance standards laid out in a 1997 Dear Colleague Letter, including that once a school is aware of sexual harassment, it must take “prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.”
2004 Dear Colleague Letter
In contrast to 2001, the 2004 Dear Colleague Letter mainly reminded school officials and education agencies that Title IX requires institutions to “designate a Title IX coordinator, adopt and disseminate a nondiscrimination policy, and put grievance procedures in place to address complaints of discrimination on the basis of sex in educational programs and activities.”
2010 Dear Colleague Letter
The 2010 Dear Colleague Letter clarifies the relationship between bullying and discriminatory harassment. For example, the letter argues that when “such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces” (p. 2). Additionally, the memo provides examples of harassment and bullying behavior, and illustrates how institutions should respond in each case.
2011 Dear Colleague Letter
The now-infamous 2011 Dear Colleague Letter, titled Guidance on Addressing Sexual Harassment/Sexual Violence, states in part, “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.”
The letter gives specific examples of school’s responsibilities relating to sexual harassment and violence, discusses proactive efforts schools can take to prevent sexual violence and educate employees and students, and provides examples of the types of remedies schools and the OCR may use to respond to sexual violence.
Notably, it made it the responsibility of colleges “to take immediate and effective steps to end sexual harassment and sexual violence.”
A 2014 Q&A published by the OCR further clarified legal requirements announced in the 2011 letter.
The impact of this letter on the way colleges and universities respond to reports of sexual violence and harassment cannot be overstated. It has led to many concerns that institutions simply cannot fulfill the burdens of acting as mini-criminal justice systems. For example, the Memo mandates several provisions regarding the investigation of sexual harassment/victimization claims, such as requiring disciplinary review board hearings and the use of a comparatively low legal standard (the preponderance of evidence standard) in deciding whether an assault occurred. Other concerns involve how universities treat complaints/victims of assault, how evidence is collected and assessed and the length of investigations.
Many sexual assault victims’ advocates have praised the letter’s impact for increasing school officials’ focus on sexual violence issues on campus and have defended it as concerns about the new administration’s commitment to it have grown.
2015 Dear Colleague Letter
The 2015 Dear Colleague Letter, titled Guidance on Obligation of Schools to Designate a Title IX Coordinator, is accompanied by a letter to Title IX coordinators that provides them with more information about their role and a Title IX resource guide that includes an overview of Title IX’s requirements with respect to several key issues.
Dear Colleague and Transgender Students
Title IX’s application to transgender issues is relatively new and has changed with presidential administrations.
The first Dear Colleague guidance was issued under former President Barack Obama’s Department of Education in May of 2016 and stated Title IX protects students from discrimination on the basis of sexual identity. The guidance directed all public school districts in the country to allow transgender students to use the bathrooms that match their gender identity.
That guidance was then withdrawn by President Trump’s administration in February of this year, with officials citing the need to “more completely consider the legal issues involved” in a Dear Colleague Letter.
The 2017 letter goes on to state, “The Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
The Future of Title IX
Where is Title IX headed? Will there be an extension of the law by future administrations and policymakers, resulting in greater accountability of educational institutions to prevent sexual harassment and victimization? Or, in the opposite direction, will there be modified or reduced federal restrictions, like the withdrawal of the provisions regarding transgender student policy?
The answers to these questions will appear in time. What’s more clear is that the future of Title IX evolves as concerns about how best to ensure student safety change and shift.
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