When Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”), which prohibits many forms of discrimination on the basis of sex, appears in the news or on social media, we typically associate it with traditional colleges and universities. But recent case law suggests that Title IX likely applies to a broader set of institutions, including, under certain circumstances, some hospitals.
Over the years, an extensive body of federal case law and regulation has arisen around Title IX, imposing detailed requirements on institutions concerning how they must respond to and investigate complaints, how complaints must be adjudicated and the nature of appropriate remedies. Moreover, these regulations also have recently been in flux. As a result, Title IX compliance often requires significant institutional resources and constant vigilance.
Because compliance with Title IX requires significant attention from the institution, it is critical that hospitals determine whether they meet the developing criteria to be subject to the requirements of Title IX and, if so, whether they have in place the proper policies, procedures and personnel to ensure compliance. In this article, we describe those criteria and provide a brief summary of the broader legal context.
Background
The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination on the basis of sex by institutions that receive federal funds and operate an “education program or activity.”
The Supreme Court held in The Civil Rights Cases, 109 U.S. 3 (1883), that Congress did not have the power under the Fourteenth Amendment to prohibit discrimination practiced by private parties. However, Congress has been able to prohibit, in private settings, many forms of discrimination, including discrimination based on sex, using: (1) its power to set conditions on the use of federal funds (spending authority), and (2) its power to regulate interstate commerce in activities related to federal funding or protections under federal law.
Specifically, Article I, Section 8, gives Congress the power to collect taxes and spend money “for the general Welfare of the United States.” Most federal funds go to public entities, but some go to private entities, including, for example, many children’s hospitals, through government contracts, grants, or other funding mechanisms. Through its spending power, Congress thus may condition a prohibition of sex discrimination upon the receipt of such funding.
Congress’s spending power is the source of its power to pass and, through delegation to administrative agencies, to enforce Title IX, which 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.” 20 U.S.C. § 1681.
Case Study
Although Title IX is typically associated with prohibiting sex discrimination in public schools and colleges and universities, it also applies to other types of entities under certain circumstances. Indeed, those entities typically considered subject to Title IX include not only approximately 16,500 local school districts and 7,000 postsecondary institutions, but also many charter schools, for-profit schools, libraries, museums, and other non-profit entities. We also have started to see courts expand the application of Title IX to other entities that receive federal funds.
Last year, for example, the Third Circuit Court of Appeals found that Title IX can apply to residency programs at hospitals. Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3d Cir. 2017). In concluding that a residency program can be an “education program or activity,” the Third Circuit first noted that the Civil Rights Restoration Act (CRRA) of 1987 amended Title IX to make clear that “all of the operations” of certain classes of federal funding recipients are “programs and activities” which, if they are educational in nature, are subject to Title IX’s prohibition on sex discrimination. Id. at 554. Among those types of recipients, are private organizations “principally engaged in the business of providing education, health care, social services, or parks and recreation.” Id. at 555.
The Third Circuit reasoned that the medical center’s residency program was an “education program or activity” for purposes of an analysis under Title IX because (1) the residency program required plaintiff to attend educational lectures, train under faculty, participate in a physics class on a university campus, and complete yearly graded examinations; (2) the medical center held the residency program out as a “structured educational experience,” and had the plaintiff completed the program, she would have been able to take and potentially obtain a certification from the American Board of Radiology; and (3) the medical center was affiliated with Drexel University’s medical school.
This opinion underscores that Title IX can apply outside the traditional K-12 and higher education contexts and that organizations should expect Title IX to apply if two elements are met:
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An education or training program is provided, and
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The program is operated by a recipient of federal funds.
The Mercy Catholic decision identifies several other factors that could support a finding that a program or activity is educational in nature:
A. The program is incrementally structured through a particular course of study or training, whether full or part time;
B. The program allows participants to earn a degree or diploma, or qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training;
C. The program provides instructors, examinations, an evaluation process or grades, or accepts tuition; or
D. The entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.
Id. at 556.
Since the Third Circuit’s ruling in Mercy Catholic, two lower federal courts have issued decisions further illuminating Title IX’s application in this context: Doe v. Prairie View A&M University, No. 4:17-CV-1957, 2018 WL 1947804, (S.D. Tex. Apr. 25, 2018), and Rossley v. Drake University, No. 4:17-cv-00058, 2018 WL 4275395 (S.D. Iowa, June 12, 2018). Both of these decisions reinforce the principle underlying Mercy Hospital: Title IX applies to organizations other than purely “educational institutions” based on whether the particular program or activity at issue was an “education program or activity” and whether plaintiff was a participant in that program or activity.
In Prairie View A&M, for example, the court permitted a student worker’s Title IX claim to proceed against the defendant university. The student alleged that, in the course of her work at a university research center, her supervisor sexually harassed her. Analogizing to cases concerning medical residents, including Mercy Catholic, the court held that a Title IX claim was viable because the student had sufficiently alleged that she was a student at the time of the alleged sexual harassment, that her job at the research center was “in furtherance of her academic studies,” and that only students were eligible for the job in the first place. See id. at *4.
Similarly, in Rossley, the court rejected a Title IX claim brought by a former member of the defendant university’s board of trustees who alleged that he was subject to discrimination because he was excluded from the adjudication of an internal Title IX claim against his son, a student at the university. Applying Mercy Catholic and other precedent, the court held that the plaintiff could assert no Title IX claim against the university primarily because he was not an employee of the university or its board of trustees and he was not denied access to any education programs or activities – his education was not impacted by the alleged events whatsoever. See id., *10-11.
Institutions subject to Title IX must operate in a nondiscriminatory manner. Key programmatic areas in which such institutions have Title IX obligations include: recruiting; admissions; financial aid; employment; and discipline. See generally, “Title IX and Sex Discrimination, U.S. Department of Education, Office for Civil Rights, https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html (accessed Jan. 30, 2019). Title IX and related regulations and guidance have significant bearing in particular on the way institutions may handle issues related to sexual misconduct.
Although there has not been significant enforcement action in this area, federal agencies beyond the U.S. Department of Education—including the National Institutes of Health—extend Title IX protections against sex discrimination, sexual harassment, and sexual violence to students and employees in grant recipient educational programs. See, e.g., National Institutes of Health, Civil Rights Protections in NIH-Supported Research, Programs, Conferences and Other Activities, NOT-OD-15-152 (September 8, 2015), https://grants.nih.gov/grants/guide/notice-files/NOT-OD-15-152.html; see also U.S. Department of Justice, Civil Rights Division, Title IX Legal Manual (confirming application of Title IX to the education programs of recipients of federal funds, including hospitals).
On November 16, 2018, the Department of Education issued a Notice of Proposed Rulemaking on the Department’s Title IX regulations. Some of the proposed regulations appear to codify standards already set forth in United States Supreme Court precedent, while others represent potentially significant departures, including the possible application of a “due process” standard not only to public institutions but also to private ones. The period for public comment on the proposed regulations closed on January 30, 2019.
Conclusion
Before your program, hospital, or organization faces litigation or an administrative complaint under Title IX, it should carefully consider whether it might be considered to be offering an “educational program or activity” subject to the requirements of Title IX. If so, it is important to evaluate current policies and practices for compliance with current and anticipated Title IX standards and requirements and to monitor emerging developments.
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