Title IX Law Marks its 5oth Anniversary

The landmark law that still shapes the landscape of higher education law in the U.S. turns 50 this year.

(Birch Bayh Senate Office, Public domain, via Wikimedia Commons)

2022 marks the fiftieth anniversary of Title IX, the federal civil rights law forbidding sex-based discrimination enacted as part of the Education Amendments of 1972. Signed into law by President Richard Nixon, the legislation only received a one bullet point summary in the New York Times the day after it was passed, but its ramifications for the study and practice of higher education law here at Stetson University and throughout the country have shaped the discipline.

The language of the law is very succinct. It 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.” That final part – about federal financial assistance – applies to nearly every college and university in the U.S., whether public or private. So the breadth of institutions it touches encompasses all of higher education.

In June of 2022 the U.S Department of Education released some proposed changes to the original legislation. “This [proposal] is really unique in a lot of ways, because it’s a conversation document,” says Professor Peter Lake, Title IX scholar at Stetson Law. “It’s designed to be iterative. It’s designed to trigger comments at many points.”

Title IX and athletics

When people think of Title IX they most frequently associate it with women’s athletics. Historically there were three requirements that must be met for institutions to remain compliant with the law.

• There must be equitable opportunities for athletic participation for both men and women.
• Female and male athletes must receive scholarship dollars proportional to their participation.
• There must be equal treatment of male and female athletes when it comes to access to school resources, facilities, and scheduling.

In the event of an official complaint, the federal Office for Civil Rights, which is tasked with enforcing Title IX, has a three-pronged test for determining whether universities are in compliance with the law. The three relevant factors are:  

1. 1. Substantial proportionality

This means the ratio of female enrollment at the institution overall must be roughly equal to – typically within 5% of – the overall ratio of female athletic participation. In other words, if 50% of the students are women, the university will want to show that women comprise 50% of their student athletes.

1. 2. Ongoing expansion of opportunities

If the numbers aren’t proportional, this test requires colleges to show that there have been ongoing efforts to improve opportunities for participation within the last three to five years.

1. 3. Full and effective accommodation

If the first two tests can’t be met, universities must provide proof that existing programs are sufficient to meet current demand among the student body and that any opportunities that aren’t available are only that way because the school lacks enough interested students to field a team. 

Title IX and sexual misconduct

In 2011, the Office for Civil Rights issued a ”Dear Colleague” letter that significantly expanded the scope of Title IX regulations to include the way universities respond to allegations of sexual misconduct ranging from harassment to assault. This new guidance was unveiled by then-Vice President Joe Biden as part of a broader federal inquiry into sexual violence on college campuses during the Obama administration. It broadened the requirements for Title IX compliance and ushered in a new wave of compliance officers at most universities. The way administrators deal with accusations of sexual misconduct has fallen under significantly more scrutiny as a consequence.

Trump’s Actions on Title IX

However, in 2017 – the start of the Trump administration – the U.S. Department of Education under Secretary Betsy DeVos rescinded the letter – as well as further guidance from 2014. Its content shifted focus to the due process rights of students accused of harassment or assault. Emphasis has shifted yet again under the Biden administration, however, which has begun the process of rescinding the new regulations that were put into place under Trump.

Working in higher education law

The twists and turns in this legal landscape, just over the past decade, demonstrate the significant need universities have for experts in the field of higher education law. And while Title IX is a significant component of this branch of study, it certainly doesn’t encompass it. Institutions of higher education hire attorneys both as in-house counsel and outside/external counsel to deal with a range of complicated issues ranging from employment discrimination to cyber security to intellectual property rights. In 2021, more than 2,100 bills related to higher education were proposed across state legislatures alone.

Stetson University’s Center for Excellence in Higher Education Law and Policy is training a new generation of attorneys so they’ll be prepared to tackle these unique and challenging issues. The Center is dedicated to producing quality research, hosting interdisciplinary conferences, and fostering productive relationships with other institutions.

The Center hosts regular webinars about hot button issues affecting colleges and universities. Recent topics have included:

• “Higher Education and the Constitutionalist Court” - an exploration of recent landmark Supreme Court decisions expanding liberties under the Free Speech clause, the Free Exercise clause, and the Establishment clause, and how they could affect universities.
• “Ransomware: How to Plan for and Manage the Risk to Your Institution” - a discussion of the complex legal and regulatory landscape surrounding ransomware attacks on universities, which are particularly target-rich environments for hackers.
• “The New Student Athlete” - an interview with NCAA Interim Senior Vice President and General Counsel Scott Bearby about the ramifications of the Supreme Court’s 2021 decision in NCAA v. Alston.
• “Disability Discrimination Law and Higher Education” - an examination of current and emerging issues surrounding the Americans with Disabilities Act (ADA) and its implications for campus accessibility.

At Stetson Law, you’ll gain the knowledge and experience that comes from working with great legal minds in some of the nation’s top-rated programs. Our programs in trial advocacy and legal writing are both ranked #3 in the nation. Apply to Stetson University College of Law today!

Exploring Title IX on our “Real Cases” podcast

Our episode “Navigating Title IX” features an in-depth conversation with Stetson’s own Professor Peter Lake as he opens his professional case file on students’ evolving identities, shifts in SCOTUS ideology on higher ed, and controversies faced by the Department of Education.

Professor Lake teaches and writes in the areas of torts, higher education, insurance, and jurisprudence. In 2015 he served as the university’s Interim Director of Title IX Compliance.

Check out this and other fascinating episodes of “Real Cases,” a legal podcast presented by Stetson University College of Law.

Listen to all episodes of "Real Cases" now