Winning Title IX Cases
Although many people believe that Title IX applies only to gender discrimination in athletics, the Federal law in fact holds that “no person…shall, on the basis of sex, be excluded from participation in, be denied the benefits or, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” This includes sexual harassment, access to higher education, education for pregnant and parenting students, all content areas from auto repair to zoology, pre K through adult education as well as gender equity in single sex and coeducational environments, testing, career education, employment and technology.
As long as so many people are unaware that they are protected and can file complaints for such a wide range of types of sex discrimination, educational institutions can continue to exclude, deny benefits, and discriminate with little worry. The Feminist Majority Foundation and other organizations concerned with education equity are here to change this and to make people aware that there are consequences to ignoring Title IX. Many individuals, from pregnant teens to victimized gay students to angry fathers, have filed Title IX complaints or law suits under the Federal law, and a number of them have been awarded substantial monetary sums. Although the withdrawal of federal funding is rare, the recipients of this funding – nearly all U.S. elementary and secondary schools, colleges and universities, both public and private, and their affiliated programs – should recognize that following the Title IX regulation is in their best interests, from their students' well-being to making sure that the school will not incur large legal expenses.
So what are individuals' legal options in the event of a Title IX violation?
- In addition to learning about their rights under the 1975 and the 2006 Title IX Regulations (as well as other applicable federal and state laws) the person considering a Title IX complaint must abide by technical requirements for filing a complaint such as strict time limits and making sure that they have legal status (standing) to complain as a direct or indirect recipient of sex discrimination in an organization that is covered under Title IX.
- The general pattern is to first check out the internal grievance procedures of the particular educational institution that discriminated against them. The Title IX regulation requires that recipient institutions adopt and publish procedures by which individuals may file Title IX grievances. However, the existence of such procedure does not affect your right to file a federal complaint if needed!
- Individuals may file a federal complaint without using existing Title IX grievance procedures. Individuals or groups may even use an online form to file a complaint with the Department of Education's Office of Civil Rights (OCR) at http://www.ed.gov/about/offices/list/ocr/docs/howto.html?src=rt
- Individuals may file a federal complaint alongside an internal grievance. In this case, the federal complaint must be filed within 60 days of the last act of the institutional grievance process.
- Individuals may file a federal complaint after the unsatisfactory resolution of a grievance by the recipient agency/institution's grievance procedure. However, in deciding the case, the OCR may choose to defer to the result reached in the internal grievance procedure.
- If neither the internal grievance nor the federal complaint achieved any adequate relief, individuals may choose to file a private lawsuit. Although this is the most costly option, it is the one through which millions have been awarded to some victims of sex discrimination especially if they receive compensatory and/or punitive damages.
Below are various examples of individuals who have suffered from gender discrimination in their educational institutions, filed complaints or lawsuits, and obtained some type of relief. Some cases have resulted in large monetary awards to the persons who were discriminated against or to remedy the situation so that there would not be discrimination against others. Other cases have been settled for smaller or undisclosed sums, typically including a list of remedial provisions. If you or someone you know has been discriminated against on account of gender by their educational institution, consider taking similar actions against the institution. Remember, you are protected not only against the discrimination itself, but also from retaliation, thanks to Jackson v. Birmingham Board of Education (2005). Legal remedies have helped change the system by clarifying the many rights that individuals have under the law. Individuals involved in these complaints have learned a great deal about legal actions and generally helped more people than themselves, but in some cases such as complaints about discrimination in obtaining academic tenure, they found that participation has a high cost in terms of their psychological, time, and financial resources.
Title IX Reaches a Small County in Texas…
Susie Halbert's daughter, a former high school cheerleader in the Kilgore Independent School District in Texas, first noticed that her school's disciplinary policy discriminated against girls in 1999. She experienced further the same type of discrimination in her school district's athletic program, when the ISD acted on their preference for the boy's football team over the female District cheerleaders. After expressing her concerns to her mother, they sought the aid of National Association for Public Interest Law (NAPIL) Fellow and Texas Civil Rights Project (TCRP) attorney Andrea Gunn and decided to file a Title IX lawsuit. They held that the ISD's actions constituted discrimination on the basis of sex and violated Title IX of the Education Amendments of 1972. The Halberts were awarded $13,000 in the 2001 settlement, which also set up a series of steps for the ISD to follow, aimed at obtaining greater compliance with Title IX. In the end, both Gunn and the Halberts were satisfied and hopeful about the fruits of the settlement, which, according to Gunn, was "a great victory for female participants in extracurricular athletic activities. In particular, Kilgore's commitment to better informing parents, students, and employees about Title IX grievance procedures, along with increased equity in funding extracurricular athletic activities, sets a wonderful precedent for area schools." (Reference: Texas Civil Rights Reporter, Fall 2001)
Angry Father Demands Equity in High School Athletics…
Like ‘angry dad' Russell Johnson of Gadsden, Alabama, 48-year-old father Ron Randolph did not consider himself a feminist and had never heard of Title IX. In fact, he is a registered Republican who does not believe that boys and girls should play together on athletic teams. However, he believes that, “as a question of fairness,” girls should have the same athletic opportunities as boys, and thus he was angered at the blatant sex discrimination that his daughter Mimi's softball team faced at Owasso High School in Owasso, Oklahoma. As his daughter observed, “Our guys' team has three sets of uniforms while all of ours total is less than they have in one.” Shortly after, Randolph learned about Title IX in a University of Tulsa seminar taught by a professor with expertise in sports law. After he and other parents asked the Owasso Independent School District to remodel the girl's softball field, and the ISD declined, they took it to court, filing a lawsuit in 1996 under Title IX. The school district settled with the Randolphs, agreeing to construct a $275,000 state-of-the-art softball facility for girls. The school district had until 1999 to be in full compliance. Randolph notes that it is the school district's loss; while “they could have gotten out for $35,000 if they had remodeled the field in the first place,” the Owasso school district came out of the settlement paying nearly eight times that cost. Herb Dempsey of Washington State, who too started out as an “angry father,” has filed numerous Title IX OCR complaints targeting unequal athletic facilities. On Randolph 's case, he says, “I loved what [ Randolph ] said when he was trying to get a softball field. He said that if he gave 10 dollars of his tax money to the schools and it went for athletics, then five should go to his son and five should go to his daughter. Very simple. Very clean.” This case set a promising precedent. Between 1996 and 1998, seven other Title IX lawsuits already have been filed in other Oklahoma districts. This case set a promising precedent. Between 1996 and 1998, seven other Title IX lawsuits already have been filed in other Oklahoma districts. (References: Women's Health Magazine, July/August 2006; The School Administrator, 1998; http://www.athleticsearch.com/bonus6.html)
Three Fresno State Sex Discrimination Cases Yield 0ver $27 million in settlements as of December 2007.
In 2004, after 14 years of coaching the Fresno State University women’s volleyball team, during which she maintained a record of 263 wins and 167 losses and led the team to its all-time highest winning percentage in 2002, Lindy Vivas was fired from her coaching position. Although university officials claim that Vivas failed to meet performance goals and attract crowds at the team’s games, Vivas had evidence that she was discriminated against for trying to implement Title IX. As a leading advocate for equitable resources, marketing and radio and TV coverage for women’s teams, Vivas faced retaliation from her male supervisors in the form of crude and blatant mockery centered on her gender and her perceived homosexual orientation. One afternoon in the spring of 2000, Vivas walked into a department office to find three male administrators reveling in celebration of “Ugly Women’s Athlete Day,” sipping drinks under a banner displaying cutouts of female figures with male heads. After her firing in 2004, Vivas filed a civil lawsuit, alleging discrimination on the basis of her sex and perceived sexual orientation along with retaliation for her efforts to ensure gender equity in athletics. In July 2007, a nearly unanimous jury awarded Vivas $5.85 million in compensatory damages, including past and future economic losses and emotional distress. This was later reduced to $4.52 million. Specifically, the jury ruled that 1) the university acted on the basis of Vivas’s perceived sexual orientation, and 2) the university acted because Vivas was engaged in activity protected under Title IX—the protesting of sex discrimination on behalf of other individuals. In Jackson v. Birmingham Board of Education (2005), the Supreme Court ruled that individuals like Vivas could seek damages for retaliation against their efforts as Title IX whistleblowers. On the verdict, Dina Lassow, Senior Counsel with the National Women’s Law Center, has stated, “I hope it will have two impacts: one in encouraging coaches to speak up if they see discrimination and [secondly] to hopefully make schools think twice about retaliation – and not retaliate, but to respond to the issues and try to make the programs more equitable rather than lashing out against the people who are bringing these things to their attention.” In October 2007, Diane Milutinovich, former associate athletic settled her sex discrimination lawsuit for $3.5 million and in December 2007 Fresno State’s women’s basketball coach Stacy Johnson-Klein was awarded $19.1 million for sex discrimination and retaliation by a unanimous jury.
USA Today (http://www.usatoday.com/sports/college/volleyball/2007-07-09-fresno-state-suit_N.htm?csp=34)
KFSN TV (ABC Local) (http://abclocal.go.com/kfsn/story?section=local&id=5465381)
Fresno Bee (http://www.fresnobee.com/state_wire/sports_stories/story/81236.html)
Inside Higher Ed (http://insidehighered.com/news/2007/07/11/fresno)
Fresno Bee (http://www.fresnobee.com/263/story/251438.html)
Title IX Binds Leading Athletic University…
When place kicker Heather Sue Mercer was cut from the Duke Football team in 1997, she knew that the reason behind the decision was purely discriminatory. Unfortunately for Mercer, the discrimination had begun long before her cut. A highly qualified athlete who had kicked for her New York State champion high school team, she was told by Duke Head Coach Fred Goldsmith to try out for a beauty pageant and to sit in the stands with her boyfriend. Soon after the cut, she filed suit against the university, claiming that the Duke coaches acted on the grounds that she was a female. In treating her differently from male players, she held, the University violated Title IX. Although the Federal law did not force the coaches to allow Mercer to try out for the contact sport, because they chose to do so, they were obligated to treat her as they would male athletes. In 2000, a federal jury ruled in favor of Mercer and awarded her $2 million in punitive damages, as the University had actual knowledge of the Title IX violations and acted with deliberate indifference to them. Mercer plans to use her award to set up a scholarship fund for female place kickers. She stated, "Seven years ago, fewer than 50 women were playing high school football," she said. "Today, there are more than 800. These women have never had the opportunity to pursue the sport at the next level. It is my hope that this scholarship fund will encourage talented and dedicated young women to achieve their goals. ...After years of divisive litigation, we now have the opportunity to do something positive. I invite Duke University to join me in opening doors for female athletes." (References: Duke University News & Communications, October 20, 2000; ESPN interview, anchored by Bob Ley, October 15, 2000; Legal Opinion)
Paternalistic and “Unintentional Violation” Defenses Dismissed, Plaintiffs Receive Over $1 Million…
For most of the 1990's, Louisiana State University had neither woman's soccer nor softball teams. In 1994, three female soccer players, Beth Pederson, Lisa Ollar, and Samantha Clark, and two softball players initiated a lawsuit against the University. However, these women were either pushed aside – as the University contended that there was not enough interest or ability to add the teams, or mocked – when the athletic director called one of the plaintiffs “sweetie,” “honey,” and “cutie,” and said that he would be in favor of adding women's soccer because “[female soccer players] would look cute running around in their soccer shorts.” It was not until six years later, in 2000, that the 5 th U.S. Circuit Court of Appeals unanimously found LSU to be biased and in possession of a “highly discriminatory” athletics system, and a federal judge ordered both parties to mediate a settlement. When LSU attempted to make a lack-of-interest-and-ability argument, the judge dismissed it as “stereotypical” and “paternalistic.” The University also made the argument that it did not violate the substantive proportionality test of the three-pronged test because such a test could not be used when considering violations of the statute. However, the court found that since the student population at LSU was 49% female, while athletic participation was only 29% female, LSU did fail the proportionality prong. The third argument made by LSU contended that even if it had violated Title IX, any such violation was unintentional. Conversely, the Fifth Circuit held that although LSU may have ignorantly violated Title IX, it "need not have intended to violate Title IX, but need only have intended to treat women differently." In 2001, a settlement was reached: LSU paid $37,000 to each of four plaintiffs and $1 million to two law firms. In addition to the substantial monetary awards, the settlement required the University to add the two women's teams and pledge to provide gender equity in facilities and equipment, scholarships, coaching, medical and support stags, travel arrangements, and marketing and publicity opportunities. (References: Sportslaw News, 2001; I EXercise My Rights, 2005; Marquette University Law School, Volume 2, Issue 4, Spring 2000)
Lack of Women's Teams and Funding in Violation, Prompts Promising Compliance Plan…
Until 1995, Virginia Tech had neither a women's soccer nor women's lacrosse team. In 1992, concerned female students filed a complaint under Title IX, alleging that the University was not allocating funding and resources equitably between women and men. In 1995, Virginia Tech settled with the plaintiffs for a total of $50,000, yet denied all of the charges in their complaint. Tech decided to settle due to the high cost of the defense, had the case gone to court. According to President Paul Torgensen, “It is in the best interests of all parties to settle and get on with the more important tasks of expanding sports opportunities for women at Virginia Tech.” In addition to the $50,000, the University added the two women's teams, upgraded the salaries of women's sports coaches, improved facilities and increased the total operating budget. In the order issued by the U.S. District Court in Roanoke, both parties settled the complaint based on Women's Intercollegiate Sports Expansion Plan, under which Tech would recruit and prepare for a 3% increase in participation in women's sports by the next year, and increase the percentage of financial aid for these women to be in accordance with the overall female share of full-time undergraduate enrollment. (Reference: Virginia Tech Spectrum, 1995)
Theno's Anti-Gay Settlement Still Groundbreaking…
When Dylan Theno began his five-year ordeal of sexual harassment in the 7th grade, he must have been assured by his parents that the calls of “fag” and “masturbator boy” would end so long as they maintained a log of the incidents and communicated with school officials – including the junior high and high school principals, the superintendent, and school board members – about the abuse. Despite their efforts, the officials paid little attention to Dylan Theno's suffering and the abuse persisted until Theno dropped out of school in his junior year. In 2005, at the age of 18 Theno sued the Tonganoxie school district on the grounds that he was denied access to an education, as afforded under Title IX of the Federal Education Act. Theno won a $250,000 settlement, and his attorney, Arthur Benson, praised the District Court's “groundbreaking” extension of Title IX – typically reserved for sex discrimination in sports – in this case. This reaffirmed the 1999 Supreme Court ruling Davis v. Monroe Country Board of Education, which held that schools may be held liable under Title IX if one of its students sexually harasses a fellow student. While “Title IX traditionally is applied to overt discrimination," Benson stated that, "this is more subtle. But it is something that is common in our public schools. Kids can be mean to each other. ... This verdict should be a warning to all school districts across the country to put them on notice." (Reference: The Tonganoxie Mirror, August 11, 2005)
Sexual Graffiti and Crude Gestures Violate Title IX…
15-year-old Katy Lyle was unaware of the sexual graffiti about her displayed in the boy's bathroom of her high school until her brother saw it and told her in the spring of 1988. The graffiti was bold and explicitly crude, as “Katy Lyle is a slut” constituted the least offensive insult. Despite her mother's repeated complaints to school officials and their promises to remove it, the sexual graffiti remained on the bathroom walls for nearly two years. Not only did the graffiti stay put, its offensiveness escalated, with accusations of sexual relations between Katy and her brother and references to dogs. The other students' audacity too intensified; they sent her notes demanding sex, placed obscene drawings on her desk, and yelled expletives directly in her face. The principal refused to take any other measures, later stating that he “felt it would make her a stronger woman.” After her parents visited the principal for the sixteenth time, Katy's brother took action. In what was one of the first student-on-student sexual harassments cases in the nation in 1989, the Lyles filed a complaint with the Minnesota Department of Human Rights under Title IX. After finding that Lyle was denied the full benefits of an educational experience due to the harassment and inaction, the Commission awarded her a monetary sum of $15,000. (References: C. Gorny, “Teaching Johnny the Appropriate Way to Flirt.” New York Times Magazine, June 13, 1999, pp. 43-47, 67, 73, 80, 82, 83; Cases & Kinds of Sexual Harrassment, 1992)
Gender-Biased Handling of Rape Case in Violation …
In October of 1994, former Virginia Tech student Christy Brzonkala was raped by two students in her dorm room. After reporting the rape, college officials turned the case over to a campus judiciary panel, which dropped one of the suspects from charges and found Virginia Tech football player Antonio Morrison guilty of sexual assault in 1995. Morrison was suspended for two semesters. However, after two appeals, college officials decided instead to find him guilty of using abusive language and allowed him to return. Outraged, Brzonkala filed a lawsuit against Virginia Tech under Title IX, contending that the school treated her rape complaint with indifference (1) “to protect the football players” and (2) “because she is a woman.” Both parts of her claim relate to Title IX because of the University's gender-biased treatment of both Bronzkala and the men's football team. She also filed her suit under the Violence Against Women Act, and was the first female to do so. Five years later, February of 2000, Virginia Tech settled the Title IX portion of the lawsuit with Brzonkala for $75,000. (Reference: Sportslaw News, 2000)
Title IX Applies to Gender-Biased National Merit Examination…
In 1996, the U.S. Department of Education 's Office for Civil Rights reached a settlement between FairTest (The National Center for Fair and Open Testing) and the College Board and Educational Testing Service (ETS). Since both the College Board and ETS receive federal funding, they are obligated to follow the Title IX regulations of the Education Amendments of 1972. In its complaint, FairTest, represented by the ACLU Women's Rights Project, had charged the two organizations with creating a gender biased exam that would be used as the sole criterion to determine National Merit Scholarship semifinalists: the Preliminary SAT/National Merit Scholarship Qualifying Test (PSAT/NMSQT). It held that because males score higher on the exam, they are more likely to obtain National Merit Scholarships; however, although the object of the exam is to predict college achievement, “even the test-makers' own research admits that the test underpredicts the performance of females and over-predicts the performance of males.” To avoid losing federal funding, both the College Board and ETS had agreed to revise the test in the next year, adding a multiple-choice "writing" component to the exam. Although many argue that this is not a sufficient remedy, the fact that the two organizations agreed, after years of ignoring the requests of women's and civil rights activists, to reform the exam, shows the power of Title IX. This case further inspired reform of the SAT and GRE, exams that also underpredicted female performance. As a result, millions more dollars in scholarships have been awarded to women. Also a new writing section was added to the SAT, and as expected, the 2006 results showed women scoring higher in writing than men . For more information, go to http://www.fairtest.org.
(Reference: FairTest Examiner, Fall 1996)
Reliance on Standardized Testing for Scholarships Fails Title IX…
In 1988, girls won only 43% of Regents Scholarships in New York . At the time, New York State relied solely on SAT scores as the determinant of scholarship recipients, and national results for many years showed males scored consistently higher than females on this standardized test. Taking notice of this fact, New York high school student Khadijah Sharif, along with nine fellow students and two organizational plaintiffs, the Girls Clubs of America and NOW, filed a complaint against the New York State Education Department and the Commissioner of Education, Thomas Sobol. They contended that New York 's exclusive reliance on the SAT to award these scholarships discriminated against female students, violating both the equal protection clause of the 14 th Amendment, and Title IX of the Education Amendments. The following year, a federal court ruled in Sharif's favor, holding that the state of New York could no longer rely solely on SAT to determine Regents scholarship recipients. It found that while white males made up 47% of the scholarship competitors, they received up to 72% of the scholarships. As a remedy, the state added high school grades to the qualifying criteria, and notably, in the following year, girls ended up winning 51% of the scholarships. (References: Sharif v. New York State Education Department (1989) Legal Document; I EXercise My Rights, 2005)
Title IX Reaches Pregnant Female Students…
19-year-old Margaret Contreras kept quiet about her pregnancy during the first five months, for fear of experiencing what her older sister had gone through two years prior in the Independent School District of Luling, Texas. After school officials had found out that she was pregnant, they forced her out of school. Despite fears that administrators would kick her out as well, Contreras had hope that she would be able to stay, after hearing that other schools offered services for pregnant students. But after approaching the principal for such services, he told her that not only did the school not offer pregnancy services, but she would have to leave her regular classes. In order to graduate, the only option for Contreras was to take a GED class at night, “so her fellow students wouldn't see her swelling belly.” In 2001, Contreras and another pregnant student, Celia Leon, filed suit against the Luling ISD, alleging that it had denied them an education – by ordering them to leave school and refusing to provide homebound or other educational services while pregnant. In discriminating based on gender so that it decreased a student's educational opportunity, the LISD violated Title IX. The next year, the Luling ISD (LISD) Board of Trustees reached a settlement that allowed the girls to re-enroll in school, granted them a monetary award, and provided for many reforms of the LISD's Pregnancy Related Services (PRS) Program. The girls' attorney, Andrea Gunn of the Texas Civil Rights Project, stated that "as a result of this lawsuit, pregnant and parenting students in the Luling ISD can finally be ensured they will be provided with equitable educational resources and opportunities. This is a great victory in the struggle against pregnancy discrimination and the egregious effects of such discrimination, including increasing high school drop-out rates." (References: Texas Civil Rights Project Press Release, August 14, 2002; The Texas Observer, 2002)
“Disparate Impact” Acknowledged in Discrimination Against Pregnant Students' Membership in the National Honor Society…
When Grant County High School students Somer Chipman Hurston and Chasity Glass were denied membership in the National Honor Society due to their statuses as pregnant mothers, they sought the help of the ACLU, which defended them in their complaint against their Convington, Kentucky school in 1998. They held that it discriminated against them based on gender, violating Title IX, the state and federal Constitutions, and the Kentucky Civil Rights Act. In spite of their pregnant statuses, both Chipman and Glass had top grades and past records of high achievement. Still, they were the only two students eligible for membership to be excluded from the Honor Society induction. While the school argued that they had not based their decision on pregnancy, but on “non-marital sexual relations,” the presiding Judge Bertelsman dismissed this reasoning; while the school district's policy excluded 100% of young women who had become pregnant from premarital sexual relations, it excluded 0% of young men who had premarital sexual relations. Moreover, it was reported in affidavits submitted to the court that “more than a dozen Grant County High School students who were admitted to NHS testified that no one connected with the society or the school had asked them whether they engaged in non-marital sex.” Foremost, Judge Bertelsman based his decision on the policy's “disparate impact on young women such as [Chipman and Glass].” Ruling in the girls' favor, he issued a preliminary injunction ordering the school board to admit them into the honor society for rest of the year, while in wait for the trial. The successful ruling, which held Grant County School District in violation of Title IX, came one year after Title IX's 25th anniversary, in 1999. (Reference: NewsCenter Press Release, 1998)
Want to Find Out More?
For more information on the Title IX regulations, guidelines in specific areas, the OCR complaint process and other legal settlements, go to the Title IX Defined page on this website and read the PDF of Feminist Majority Foundation intern Jenny Lee's 2006 paper Title IX Infractions: Legal Options and Winning Cases. If you have a description of another important Title IX case that might be added to these web pages, please send it to email@example.com