Title IX and the
Admissions Process
Beth Howard
Title IX Coordinator
University of Alabama
Presentation Overview
• Title IX Overview: Explanation of the law and its general
application with regard to higher education.
• Gender Discrimination and the Admissions Process
• Notice of Sexual Misconduct during the Admissions Process
• Admitting Students with Questionable Backgrounds
• Potential Liability: Office of Civil Rights Investigations and
Civil Liability
• Q&A
This presentation contains information about sexual
misconduct which may be triggering to survivors.
Title IX of the Education Amendments
of 1972 and implementing Regulations
"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 educational
program or activity receiving Federal financial assistance.”
• Who is protected? Students, Employees, and Campus
Visitors
• On the basis of sex
• Excluded…Denied…Subjected  Look at the effect of the
action in a broad sense
• Based on a reasonable person standard
Other Federal Law, Regulations,
and Guidance
• Title IX Regulations: 34 CFR Part 106
• Dear Colleague Letters
– Considered “significant guidance documents” for how OCR evaluates
whether covered entities are complying with legal obligations.
Discusses harassment, assault, pregnancy, LBGTQ, and other issues.
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Office of Civil Rights Guidance including FAQS
Department of Education Title IX Resource Guide
Voluntary Resolution Agreements
White House Task Force Recommendations
– Notalone.gov
• NCAA Handbook
• Related Legal Requirements: Campus SaVE, Clery Act, Title VII
Prohibited Conduct
• All types of Sexual Misconduct
– Sexual Harassment
– Sexual Assault
– Dating/Domestic Violence
– Stalking
– Sexual Exploitation
• Gender Discrimination
– Includes sexual orientation, identity, and
expression
Goal of Title IX and Supporting
Legislation
Ends
Discrimination
University
Response
Remediates the Effects
of the Discrimination
Prevents Recurrence
of the Discrimination
Gender Discrimination and the
Admissions Process
Title IX Prohibits Gender
Discrimination
• Title IX prohibits institutions that receive federal
financial assistance from discriminating on the
basis of sex in the recruitment or admission of
students. 20 U.S.C. §1681(a)(1).
– “On the basis of sex” includes protections for
pregnant applicants.
• There is an exception for private institutions and
public institutions which traditionally and
continually from its establishment has had a
policy of admitting only students of one sex. 34
C.F.R. §106.15
Equal Opportunity Statement
• Every recipient of federal funds must publish notification of nondiscrimination based on sex and ability of a grievance procedure.
• The Non-Discrimination Notice should be widely distributed. In
accordance with Title IX and Section 504 regulations…
– Notification may include:
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Posting information notices
Publishing in local newspapers/magazines
Publishing in alumni distributions
Distributing memorandum to students/employees
– Notification is REQUIRED in:
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Bulletins
Job Announcements
Catalogs
APPLICATION FORMS
RECRUITMENT MATERIALS
UA Non-Discrimination Statement
The University of Alabama complies with applicable laws prohibiting discrimination,
including Titles VI and VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, Executive Order 11246, Title IX of the Education Amendments of
1972, Sections 503 and 504 of the Rehabilitation Act of 1973, the Vietnam Era
Veterans’ Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans
Act of 2002 (VEVRAA), the Age Discrimination Act of 1975, the Americans with
Disabilities Act of 1990, the ADA Amendments Act of 2008, and the Genetic
Information Nondiscrimination Act of 2008 and does not discriminate on the basis of
genetic information, race, color, religion, national origin, sex (which includes sexual
orientation, gender identity, and gender expression), age, disability or veteran status
in admission or access to, or treatment of employment in, its programs and services.
Inquiries or concerns regarding The University’s Title IX or gender-related compliance
may be directed to the University’s Title IX Coordinator, Ms. Beth Howard, 152A Rose
Administration Building, Box 870114, Tuscaloosa, AL 35487-0114, (205) 348-5496,
gbhoward@ua.edu. All other inquiries and concerns may be directed to Dr.
Gwendolyn Hood, University Compliance Officer, 171 Rose Administration Building,
Box 870300, Tuscaloosa, AL 35487-0300, (205) 348-5855 (Voice), (205) 348-5573
(TDD), ghood@aalan.ua.edu.
Admissions Criteria Application
• Goal is for the admissions criteria to be gender-neutral
in application or effect.
• Institutions should examine the enrollment statistics to
determine if there is an adverse impact on one gender
because of a certain admission criteria.
• If there is a discrepancy either in admissions overall or
in a particular program on campus (i.e. STEM
programs), institutions can make additional
recruitment efforts (and may be required to by OCR)
for one sex as remedial action or affirmative action. 34
C.F.R. §106.23(a).
Enrollment Statistics Based on Gender
• Female identified student enrollment is
increasing. Between 2002 and 2012, the
number of full-time male students increased
by 28% and the number of full-time female
students increased by 42%.
– U.S. Dept. of Ed., National Center for Education Statistic. (2015) Digest of
Education Statistics, 2013 (NCES 2015-011), Chapter 3.
• At UA, the 2015 freshmen class had 7,211
students of which 45% are male and 55% are
female.
Notice of Sexual Misconduct
During the Admissions Process
The College Application Essay
• The essay is an opportunity for the applicant
to provide personal details.
• The applicant might use this opportunity to
explain issues with grades or attendance while
in high school or at their prior institution.
• The applicant might also use a prior traumatic
event as an example of overcoming difficult
experiences with success.
When does an Institution have
Notice?
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It depends on the specifics of the conduct and to whom it is being reported.
– Title IX applies to conduct that occurs on campus or at campus-sponsored
events and off-campus conduct that creates a hostile environment on campus.
– If an applicant reports some type of misconduct that did not happen on
campus and the alleged offender is not associated with the institution, then
Title IX does not apply. However, the institution can offer resources to the
prospective student.
What if the applicant discloses alleged misconduct that occurred on campus or by
a current student or employee?
– Responsible employee: Any employee who 1) has the authority to take action
and redress the conduct, 2) has the duty to report harassment or other types
of misconduct to appropriate officials, or 3) any person who a student could
reasonably believe has this authority or responsibility.
– Your institution will determine if you are considered a responsible employee
for reporting purposes.
Admitting Students with
Questionable Backgrounds
Text
Revisiting the Goals of Title IX
Ends
Discrimination
University
Response
Remediates the Effects
of the Discrimination
Prevents Recurrence
of the Discrimination
Bringing a Potential Threat on Campus
and Prevention of Future Occurrences
• When we know or reasonably should know of a
threat to campus safety, we should act.
• Information learned through admissions
applications are typically where an institution will
learn about the prior acts of a potential student.
• In some instances, such as athletics, the
recruiters learn more personal information about
a potential student than the typical admissions
process.
Case Example
• The most publicized cases involve Athletics.
• In recruiting, coaches might ask the potential
student’s high school coaches, teachers, and
administrators about questionable conduct.
• Coaches might learn information about
accusations or juvenile records that are
otherwise not accessible through a standard
background search.
Williams v. University of Georgia
U.S. Ct. of Appeals, 11th Circuit, February 9, 2007
• Issue: Whether the institution’s knowledge of
Tony Cole’s prior acts in conjunction with the
institution’s failure to inform students of and
enforce the sexual harassment policy rose to
the level of the deliberate indifference
standard?
• Background facts listed below were taken
from the complaint and construed in the light
most favorable to the plaintiff.
Williams v. UGA Background
• Tiffany Williams was a student at UGA.
• At 9:00 p.m. on 1/14/2002, Tiffany received a telephone
call from UGA basketball player Tony Cole inviting her to his
residence hall, which was the main dormitory for athletes.
• Tiffany and Tony engaged in consensual sex.
• Unbeknownst to Tiffany, Brandon Williams, UGA football
player, was hiding in Tony’s closet.
• Tony and Brandon had previously agreed that Brandon
would hide in the closet while Tony had sex with Tiffany.
When Tony went to the bathroom and slammed the door
behind him, Brandon emerged from the closet naked,
sexually assaulted Tiffany, and attempted to rape her.
Williams Background Cont.
• As Brandon was sexually assaulting Tiffany, Tony called Steven
Thomas, basketball player, and Charles Grant, football player, and
told Steven and Charles that they were “running a train” on Tiffany.
• Steven came to Tony’s room and Tony allowed Steven to enter the
room. With Tony’s encouragement, Steven sexually assaulted and
raped Tiffany.
• Tiffany returned to her residence hall at approximately 11:00 p.m.
and told a friend what happened. While Tiffany was with her
friend, Steven (who Tiffany had never met before that night) called
Tiffany and she hung up.
• Tiffany called her mother who notified UGA campus police. Tiffany
underwent a forensic exam and filed a criminal complaint. Tiffany
withdrew from UGA.
Williams Background Cont.
• There are additional facts regarding the response to
the sexual misconduct allegations. Since those facts
are not relevant to this discuss, they are omitted.
• Tiffany’s complaint alleged that defendants Jim Harrick,
UGA men’s basketball coach, Vince Dooley, UGA
Athletic Director, and Michael Adams, UGA President,
were all personally involved in Tony’s recruitment and
admission to UGA.
• Tiffany alleged that the three defendants knew Tony
had previous disciplinary and criminal problems,
particularly involving harassment of women, at other
colleges.
What did UGA “know” about Tony?
• Prior to coaching at UGA, Harrick coached men’s
basketball at the University of Rhode Island. He
recruited Tony to attend URI.
• Tony was not able to gain admission to URI. So, Harrick
helped Tony gain admission to The Community College
of Rhode Island (CCRI). Tony was dismissed from CCRI
after allegations that in December of 1999 and
February of 2000 he sexually assaulted two part-time
employees of the college’s athletic department by
grouping the women, putting his hands down their
pants, and threatening them when they rejected his
advances. Tony pled no contact to misdemeanor
trespass.
What did UGA “know” cont.
• While attending Wabash Valley College (WVC),
Tony was dismissed from the basketball team
because of disciplinary problems including an
incident in which he whistled and made lewd
suggestions to a female store clerk.
• In May of 2001, Tony was arrested for violating a
protective order that his foster mother requested
after he physically assaulted one of her friends.
• While at prep school, Tony punched another
player in the face during a game.
What did UGA do?
• Harrick recruited Tony to UGA, but Tony did not meet
UGA’s standards for admission.
• Harrick requested that Adams admit Tony through
UGA’s special admissions policy where Adams is the
sole decision maker.
• Tony was admitted to attend UGA on full scholarship.
• Tony was allowed to residence on campus in a
residence hall.
• Tiffany also alleged that UGA student athletes
suggested that coaches inform them of the sexual
harassment policy and failed to do so.
Legal Basis for the Lawsuit
• Title IX
– Title IX does not expressly permit private enforcement suits, but
the Supreme Court found an implied private right of action
[Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979)] where
private individuals can obtain monetary damages. [Franklin v.
Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992).]
– As described in the Court’s holding, a plaintiff seeking recovery
must show:
• The defendant is a Title IX funding recipient
• An “appropriate person” must have actual knowledge of
discrimination/harassment
• The recipient acts with deliberate indifference to known acts of
harassment
• The discrimination is “so severe, pervasive, and objectively offensive
that it effectively bars the victim’s access to an educational
opportunity or benefit.”
Title IX
• A plaintiff must show the institution showed deliberate
indifference to succeed with a Title IX claim.
• This case was different than previous precedent because in
previous cases, the defendant (institution) did not learn
about the alleged harasser’s proclivities until after the
alleged harasser because a teacher or student at the
school.
• Here, Tiffany is alleging that the defendant’s knew about
Tony’s past sexual misconduct when they recruited him and
gained his admission to UGA.
• Additionally, Tiffany alleges that UGA and UGAA knew
about student-athletes requests to be informed of the
sexual harassment policy.
Creation of Notice Prior to Admission
• “Although, a Title IX recipient cannot be held
liable for misconduct that occurred before the
alleged harasser was affiliated with the
receipt, as we explain later, Adams, Dooley,
and Harrick’s preexisting knowledge of Cole’s
past sexual misconduct and the studentathletes’ suggestions are relevant when
determining whether Williams alleged facts
sufficient to survive the defendants’ motion to
dismiss her Title IX complaint.”
Analysis
• Deliberate Indifference
– The Court looked at a finding in Gold v. City of Miami, 151 F.3d 1346, 1350-51
(11th Cir. 1198) that said, “the municipality knew of a need to…supervise in a
particular area and the municipality made a deliberate choice not to take any
action.”
– Deliberate indifference must, at a minimum, “cause [students] to undergo”
harassment or “make them liable or vulnerable to it. Davis v. Monroe County
Bd. Of Ed., 526 U.S. 629, 644-45(1990).
• The Court held that Adams, Dooley, and Harrick’s decision to recruit and
admit Tony through UGA’s special admission process was a form of
discrimination that Tiffany suffered.
• According to Williams, Adams, Dooley, and Harrick knew of the need to
supervise Tony because of the suggestions by other student-athletes and
Tony’s past conduct.
• The Court held that Tiffany’s allegations of UGA and UGAA’s failures to
inform student athletes of the policy and failure to adequately supervise
Tony were sufficient to establish deliberate indifference from a
municipality standpoint and also establishes deliberate indifference from a
Title IX standpoint because the failures subjected Tiffany to further
discrimination.
Outcome
• The District Court’s dismissal of William’s Title
IX claims against UGA and UGAA was
reversed.
• Case settled out of court for a reported six
figure sum.
What to take from Williams v. UGA?
• Knowledge of an individual’s conduct prior to
being affiliated with an institution triggers a
requirement to take action to prevent future
discrimination.
• Failure to take reasonable action may
constitute deliberate indifference which may
create liability under Title IX.
• Past conduct issues are not a bar to
admission.
Are you required to ask about prior
conduct?
• There is an increasing vigilance everyday for
campus safety.
• There is no Federal requirement.
• State Law may require questions on
applications or background checks.
• Certain disciplines require background checks.
Asking About Prior Conduct on
Applications
• The Capstone Creed requires that members of the University
community “pursue knowledge; act with fairness, honesty, and
respect; foster individual and civic responsibility; and strive for
excellence.” In order to foster an environment conducive to those
goals, the University requires you to answer questions related to
disciplinary and criminal history. Such history will not automatically
bar your admission. Each application will be reviewed on its
individual merits.
• The University of Alabama reserves the right to refuse admission or
re-enrollment or to place conditions on admission or re-enrollment
of applicants and former students who it determines represent a
safety risk to University students, employees, and University
property.
• The Common Application requires applicants to check a box
regarding criminal background history.
What Happens When You “Know”
• What question are you asking?
– Convictions? Prior Student Conduct Records? Accusations?
• What do you know?
– Do you need more information?
– How can you get that information?
– Utilize your campus partners.
• Does the institution want to provide an avenue for the
prospective student to provide more information?
• You cannot do nothing = deliberate indifference.
• When dealing with reported instances of Sexual
Misconduct, your Title IX Coordinator should be
notified prior to making an admission decision.
Admitting a Student when you “know”
• Develop a carefully considered plan that is
reasonably expected to prevent future
occurrences.
• The plan for different students will likely be
unique depending upon the student, but
should be consistent.
• Utilize the resources you have on campus:
counseling, mentorships, drug/alcohol
accountability, housing options, etc.
Potential Liability
Civil Liability
• Admitting a student with known prior conduct
increases the risk of a civil lawsuit pursuant to
Title IX.
• The institution is responsible for taking measures
to prevent the recurrence of discrimination.
• How much monitoring can the institution
provide? What is reasonable?
• How can we determine what type of monitoring
is effective for each particular student?
Enforcement by OCR
•
Investigations
– The Department of Education Office of Civil Rights has jurisdiction to conduct an
investigation of any institution who receives Federal funding if: 1) the complaint against
the institution was filed with OCR within 180 calendar days of the last alleged
discriminatory act and 2) the complaint alleges behavior by the institution that, if true,
would violate Title IX regulations.
– OCR initiates an investigation by sending official notice in writing to the President.
– At the conclusion of the investigation, OCR will issue a Letter of Findings that either
there is insufficient evidence or the evidence supports a finding that the institution
failed to comply.
– The institution and OCR will negotiate a Voluntary Resolution Agreement (VRA) and OCR
will find that if the institution completes the terms of the VRA, the institution is in
compliance.
• If the institution refuses the VRA, OCR will give it 30 days to reconsider and then
issue a Letter of Impending Enforcement Action with recommendations to either
suspend, terminate, or refuse to grant future Federal monetary assistance.
– It is typical for OCR to continue on and off site institutional monitoring for up to three
years after a VRA is reached.
•
Voluntary Compliance Checks
Q&A
Thank you!
Beth Howard
Title IX Coordinator
University of Alabama
(205) 348-5496
gbhoward@ua.edu
www.TitleIX.ua.edu