Don’t give ‘special status’ to outside groups with sex restrictions, either
Largely thanks to the efforts of University of Michigan-Flint economist Mark Perry, schools across the country are facing scrutiny from the Department for Education for offering programs and scholarships that exclude males from eligibility.
His flurry of Title IX complaints indisputably played a significant role in its Office for Civil Rights’ creation of two new “issue codes” last year to track complaints against “single sex campus programs” and “single sex scholarships.”
On Thursday, the Office for Civil Rights went a step further by releasing “technical assistance” on its interpretation of Title IX with respect to such programs and scholarships.
Much of the material is not new to people who follow Title IX complaints and resolutions, and the document explicitly tells institutions that it does not have “the force and effect of law” and is “not meant to bind the public or regulated entities in any way.” (The Obama administration, by contrast, explicitly threatened institutions for not following its nonbinding Title IX guidance.)
But for K-12 schools and colleges that have long acted as if Title IX didn’t apply to activities with the word “girls” in the title, and depictions of only females in their materials, the 11-page document makes plain that it does.
One of the most popular reasons for offering a female-only program or scholarship – supposed underrepresentation – is severely restricted under the feds’ interpretation.
While they can restrict eligibility by sex for “remedial or affirmative action” in “limited circumstances,” schools are still prohibited from using “sex-based quotas.” Even more sweeping, they cannot “rely on national statistics as evidence of limited participation.”
Rather, schools must “clearly articulate why the particular sex-based scholarship or program was necessary to overcome the conditions in its own education program or activity which resulted in limited participation therein“:
As part of this analysis, OCR evaluates whether the classification based on sex was supported by an “exceedingly persuasive justification,” based on a substantial relationship between the classification and an important governmental or educational objective.
OCR’s OPEN Center today released its most recent technical assistance document: a Q&A Guide Regarding OCR’s Interpretation of Title IX and Single Sex Scholarships, Clubs, & other Programs. @usedgov https://t.co/wAdXQpbB9y
— ED Civil Rights (@EDcivilrights) January 14, 2021
Schools targeted with complaints will have to provide “a specific assessment of the facts and circumstances surrounding the scholarship or other program” to OCR. The office will analyze whether the “purported remedial discrimination” has any relation to “overcoming the effects of those conditions.”
It flatly warns schools that their sex-based scholarships justified as affirmative action “may never rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”
Schools should also be wary of titles for scholarships and programs that are “reasonably perceived” as stating a “preference or restriction” based on sex. Otherwise they must “clearly state in their public-facing communications,” such as websites and recruiting materials, that such preference or restriction does not exist, despite the title.
OCR notes that it has reviewed scholarship applications and “awardee data, disaggregated by sex,” to discern whether schools have “communicated effectively” about their nondiscrimination policies.
Several sections in the question-and-answer format are answered “Generally, no” on the appropriateness of sex preferences and restrictions. One of them is whether schools can even advertise or promote third-party scholarships, such as by listing them on its website:
OCR expects that schools will take reasonable steps to verify that the sponsoring organization’s or person’s rules for determining awards do not, expressly or in fact, discriminate on the basis sex.
The guidance also cautions schools about providing “significant assistance” to third parties that offer “non-funded” advancement programs, such as fellowships, with sex preferences or restrictions.
Such assistance has historically been interpreted to include giving third parties “special status or privileges” not offered to “all community organizations,” such as by designating faculty sponsors or letting parties use campus facilities “at less than fair market value.” Simply listing a non-funded program on its website, however, is not “significant assistance.”
Some of the guidance is highly nuanced, particularly with respect to elementary and secondary schools. But other parts are direct and unambiguous, such as the section on sex-based restrictions on school facilities:
OCR has opened an investigation into whether a university that offered a designated “women’s only” workout space in its gym facilities violated Title IX by restricting that space to members of only one sex.
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