֭

Table of Contents

Video Lesson: Title IX Overview

YouTube thumbnail for ֭'s First Amendment Lessons for College Administrators

First Amendment for College Administrators

Lesson 4: Harassment Policies on Campus

Video 1: Title IX Overview

Video 1: Title IX Overview
Video Transcript

Sex discrimination in federally funded education programs – that includes nearly all American universities, public and private – is forbidden by Title IX of the Education Amendments of 1972. While sexual harassment is not mentioned in the statute itself, courts have since determined that sexual harassment is a form of sex discrimination covered by Title IX.

Long known for its role in ensuring equal treatment for women athletes, since 2011 the law has seen far more controversy over how it regulates schools’ responses to sexual harassment, sexual assault, and, most recently, the rights of LGBTQ+ students. But don’t go looking at the language of Title IX itself to figure things out – the statute hasn’t changed. Today, court cases and federal guidance and regulations interpreting Title IX govern how campuses must follow the law.

There are two major categories of sexual harassment: quid pro quo harassment, and hostile environment harassment. Quid pro quo – Latin for “this for that” – is the more straightforward of the two, and occurs when someone in authority demands sexual favors in exchange for either receiving a benefit or avoiding a harm. Because the harasser must have power over the victim, this most often occurs in the employment context, but would also apply if, for example, a professor demanded sexual favors from one of their students in exchange for better grades.

Hostile environment sexual harassment requires a more detailed analysis in the higher ed space, particularly because these claims often intersect with the rights of students and faculty to discuss and debate controversial topics about sex or gender. Complicating matters is the fact that, unlike quid pro quo harassment, hostile environment sexual harassment can take place even among peers, where there is no clear power differential. Additionally, the legal definition of a hostile environment among college students is not the same as it is for colleagues in an office, factory, or shop. For that matter, most students aren’t employees at all. They often live full-time on campus, leading both their personal and academic lives in the same place. And few, if any, workplace environments allow for the kind of vigorous protest and criticism that is expected on a college campus – and, at public institutions, protected by the First Amendment.

Fortunately, the Supreme Court has provided detailed guidance on how to spot hostile environment sexual harassment on campus. In 1999, when the Supreme Court considered the case of Davis v. Monroe County Board of Education, it did not simply adopt the ordinary workplace standard for hostile environment sexual harassment and apply it to student-on-student harassment. Instead, it determined that sexual harassment among peers in the educational context had to be conduct 

  • on the basis of sex, that is
  • unwelcomed by the target,
  • and “so severe,
  • pervasive, and
  • objectively offensive,
  • and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” 

In contrast, in a usual workplace, hostile environment sexual harassment among employees need only be 

  • on the basis of sex,
  • unwelcome,
  • Objectively and subjectively offensive, and
  • so severe or pervasive that it
  • alters the conditions of employment.

The most critical difference between the standards is this: Student-on-student hostile environment harassment must be all three: severe AND pervasive AND objectively offensive, while workplace harassment need only be severe OR pervasive. While the Department of Education has caused problems over the years by repeatedly conflating the words “or” and “and,” the 2020 Title IX regulations in force as of this recording make it clear that colleges should follow the Supreme Court’s “and” formulation. 

Relying on examples when it comes to harassment law and policy can be problematic because there are as many sets of facts as there are individual complaints. But here’s one that’s intended to illuminate the important distinction between hostile environment harassment in the corporate environment vs. that of higher education.

For example, if a man in working in a Fortune 500 company is found to be:

  • Talking graphically about sex around female coworkers,
  • Displaying posters of scantily clad women in his office, and
  • repeatedly remarking to women that he believes they belong at home rather than in the workplace, 

that employee’s behavior might be pervasive enough to create a hostile environment, even if none of it was particularly severe (such as an unwanted sexual touching).  

If a male college student were to do the equivalent among his fellow students, though - talk graphically about sex, display bikini posters in his dorm room, and advocate against women in the workplace - his expression would not create any Title IX violation. That’s primarily because even if it could be considered pervasive, his expression simply could not be considered severe. Indeed, on a public campus, sexual jokes, the display of risque art in one’s own space, and the expression of political opinions are all strongly protected by the First Amendment.

Finally, keep in mind that while the Davis standard arose in the context of Title IX and sexual discrimination, its analysis is based on constitutional concerns about how discrimination laws can be enforced. Those concerns would be no different when dealing with other federal antidiscrimination statutes. If your harassment policy can easily be enforced to censor expression that would be protected by the First Amendment off campus, there’s a very good chance that it doesn’t meet the Davis standard.

Now that we’ve learned a little bit more about Title IX and how it applies on campus, let’s continue our discussion about peer harassment with an overview of the legal landscape, including Title VI.

Suggested Resources
Share