To understand the requirements of Title IX, educational institutions and agencies are encouraged to reference 34 C.F.R. Pt. 106 and seek advice from their institution’s legal counsel. The following post briefly discusses the legislative history and purpose around certain provisions of Title IX’s implementing regulations for informational purposes only. Click here to view the full white paper.
Legislative History of 34 C.F.R. § 106.8
Under Title 34 of the Code of Federal Regulations, schools can find regulations regarding compliance with Title IX of the Education Amendments of 1972. Specifically, § 106.8, which is entitled “Designation of responsible employee and adoption of grievance procedures,” requires educational institutions to appoint a responsible employee to oversee and develop effective grievance proceedings on campus. Below is a brief history of the regulation’s history and its important role in Title IX compliance and enforcement.
As the number of women in the public workforce increased in the 1960s, issues of equality in the workforce turned national attention to the problem of discrimination against women in educational settings. During the summer of 1970, Congress brought the issue of sex bias in educational institutions to legislative attention through a set of discrimination hearings before a special House Subcommittee on Education. In 1972, fueled by both the momentum of the growing women’s movement and mounting political pressure, President Richard Nixon signed Title IX of the Education Amendments of 1972 into federal law to prohibit discrimination on the basis of sex within educational settings.
Title IX states in relevant part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...” Modeled after the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, Title IX conditions the receipt of federal funding by public schools on the implementation and enforcement of policies that promote equal opportunity and treatment among the sexes.
Sex discrimination extends to and includes incidents of sexual harassment and sexual violence. The U.S. Department of Education’s 2011 “Dear Colleague Letter” defines sexual violence as, “[P]hysical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.” The letter goes on to explain that rape, sexual assault, sexual coercion and sexual battery all fall under the scope of sexual harassment under Title IX.
The U.S. Supreme Court (Court) clarified the legal contours of Title IX actions in a handful of key cases. In 1986, the Court held that a claim of hostile environment due to sexual harassment constitutes an actionable claim of sex discrimination under Title VII of the Civil Rights Act in Meritor Savings Bank v. Vinson. In 1992, the Court applied their decision in Meritor to determine that courts have the authority to grant remedies to private parties in cases of teacher-student sexual harassment. In 1998, in Gebser v. Lago Vista School District, the Court again interpreted Meritor to flesh out their Gebser opinion, articulating that a school can be held liable for monetary damages when (a) a teacher sexually harasses a student and (b) the official with the authority to address the claim has actual knowledge of the harassment and is deliberately indifferent in their response. One year later, in 1999, the Court announced in Davis v. Monroe County Board of Education that a school may also be liable for damages in cases of student-to-student harassment if the Gebser conditions are met.
After Congress passed Title IX, schools across the country struggled to understand what exactly they needed to do in order to comply with Title IX. In an effort to clarify the specific requirements of Title IX compliance, the U.S. Department of Health, Education and Welfare (HEW) started to develop and draft implementing regulations for publication through the rulemaking process. Finally, in June 1974, the rulemaking committee distributed a draft of proposed regulations with a five month period for public comment, during which time HEW anticipated a flood of responses from both advocacy groups and educational institutions.
By the close of the public comment period in October 1974, the proposed Title IX regulations received nearly 10,000 comments. In response to this overwhelming feedback, HEW stated: “Such a broad public reaction is healthy and reflects the fact that we undertook our responsibilities with a commitment to face the difficult and controversial issues inherent in the law.” In other words, the rulemaking process to clarify compliance with Title IX for educational institutions was sorely needed.
On June 4, 1975, the completed Title IX regulations appeared in the Federal Register. On July 21, 1975, these implementing regulations went into effect for all educational institutions and agencies receiving federal funding in order to “ensure and monitor compliance” with Title IX. In 1980, the newly-founded U.S. Department of Education adopted these regulations and codified them into 34 C.F.R. § 106.
Specifically, section 106.8 of the Title IX regulations (“designation of responsible employee and adoption of grievance procedures”) plays a key role in placing the responsibility of handling Title IX claims on schools. It aims to minimize federal involvement, preserve federal resources, and instead require institutions to internally address sex discrimination by creating self-examination opportunities. Section 106.8 specifically addresses two concrete ways in which institutions and agencies can engage in this self-examination process—through the designation of a responsible employee to coordinate Title IX compliance efforts across campus, 34 C.F.R. § 106.8(a), and the adoption of internal grievance procedures to receive and resolve complaints of sex-based discrimination, 34 C.F.R. § 106.8(b).
Addressing discrimination in subconscious beliefs & traditions
In reviewing the vast amount of public comments received for the proposed Title IX regulations, HEW noted that many issues in education discrimination seemed to stem from subconscious beliefs and old institutional traditions: “[M]uch of the discrimination against women in education exists unconsciously and through practices long enshrined in tradition.” Consequently, HEW designed the Title IX regulations with the goal of schools locating such biases, working internally to acknowledge them, and ultimately changing these discriminatory beliefs and practices. Specifically, HEW stated that, “during the next year those in education begin a searching self-examination to identify any discriminatory policies or practices which may exist within their institutions.” The Department also intended to preserve federal resources by limiting federal involvement during these internal examinations, believing that institutions were more favorably situated than the federal government to find their own weaknesses due to a clearer understanding of their own unique culture, practices, and traditions.
Opportunities for self-examination
Allowing institutions greater control over their compliance procedures and processes also allows for timely and comprehensive issue resolution, offering both complainants and institutions “the prospect of an expeditious resolution of issues and development of compliance activities which are best suited to particular situation involved.” Upon the publication of the regulations in 1975, HEW’s Secretary, Carl Weinberger, expressed the importance of schools engaging in active self-examination, stating: “[N]o other provision of regulation has more potential for ending sex discrimination. I hope educators charged with carrying out this provision will do so in a spirit that fully embraces the real purposes of the law.”
In conclusion, the drafters of the Title IX regulation intended section 106.8, with its designation of a responsible employee and required adoption of grievance procedures, to address unconscious sex biases and better ensure effective and expedient resolution of complainants. Through this, HEW intended to both preserve educational institutions and agencies’ ability to manage and monitor their own campus while preserving the federal resources needed to enforce Title IX. Therefore, the opportunities for self-examination provided under section 106.8 of the Title IX regulations has played an important role in the compliance and enforcement of Title IX by encouraging schools to provide closer scrutiny to their own practices, traditions, and beliefs to avoid discrimination on the basis of sex.
Sexual assault is all too common in the United States. Frustratingly, so is the failure to properly investigate sex crimes by testing forensic evidence collected following the horrific incident via rape kits. Each year, hundreds of thousands of rape kits go untested. This backlog not only prevents identification and prosecution of perpetrators, it also endangers the community and robs victims of justice. Last week, the Congressional Task Force to End Sexual Assault was a tour-de-force in bringing legislative attention to the issue of state-level rape kit backlogs. From the opening statements to the final comments, the two-hour, bipartisan panel consisted of leaders in sexual assault prevention and response advocacy, including Dr. Jenifer Marowitz of the International Association of Forensic Nurses, Richard A. Bell, a chief of special investigations, and Law & Order SVU’s Emmy award winning actress Mariska Hargitay, founder of the Joyful Heart Foundation. In their opening remarks, each esteemed panelist touched on core issues surrounding untested rape kits and the significant negative consequences of this backlog on victim advocacy and perpetrator prosecution.
One important topic discussed at the roundtable is the crucial role that Sexual Assault Nurse Examiners (SANE Nurses) have in proper victim response. The panelists emphasized how nurses are often one of the first interactions a survivor has after an attack of sexual violence, going on to describe how their response in treating a survivor after an attack has an incredible impact on entire recovery, both physically and emotionally. SANE nurses undergo extensive and specific training on sexual assault and are therefore best equipped to treat survivors in the aftermath of the traumatic incident. Statistically, treatment by SANE nurses is overwhelmingly associated with increased prosecution rates, which considering their access to support services, education and awareness, is no surprise. Troublingly, the panelists shared that only 17 percent of hospital emergency departments have trained SANE nurses on staff.
Many of the roundtable statements centered around intensely personal testimonies by both survivors and professionals with years of experience in the field. In addition to these personal narratives, Bell, a prosecuting attorney in Cuyahoga County, mentioned the economic benefits of testing all rape kits. Consider the stats: the prosecution of 543 defendants convicted for other crimes (such as armed robbery, battery and arson) cost the state approximately $440 million annually – upon swabbing, these same defendants matched DNA from rape kits which sat untested for years. Crunching the numbers, each rape kit that undergoes testing saves the state roughly $8,000 a year. Clearly, in addition to safety and justice, the economic incentives for testing each rape kit promptly are significant.
Overall, the roundtable conversation centered on the theme of survivor-focused advocacy. The panelists organized their experiences and goals into four pillars of best practice: (1) test all rape kits, (2) swab all felony arrestees, (3) investigate all rape kit reports and (4) uphold a victim-centered approach every step of the way, from evidence collection to prosecution to recovery resources. Each year, survivors, professionals, practitioners, and experts get together for the annual best practices summit to discuss ways in which to best prevent and respond to sexual assault.
It would have been difficult to attend this roundtable event and not feel moved and inspired by the powerful testimonies given by each of the panelists. Sexual assault is a horrifyingly common occurrence that has lasting impacts on survivors, their families, and communities. Rape kit testing is one important step in both advocating for survivors and preventing future incidents, and each panelist impressed upon the attendees how our response to survivors is just as important as the mechanics of the investigation and prosecution process. SurvJustice takes this issue seriously, as the rape kit backlog is a concerning obstacle in increasing the prospect of justice for survivors. As Hargitay put it, “These are not just kits on a shelf – they’re lives derailed, waiting for answers.”
Authored by Hannah R. Leisman, SurvJustice Legal Intern
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