Order Code RL31619
Report for Congress
Received through the CRS Web
Agency Enforcement of the Prohibition Against
Sex Discrimination Mandated by
Title IX and EO 13160
October 28, 2002
Jody Feder
Legislative Attorney
American Law Division
Congressional Research Service ˜
The Library of Congress
Agency Enforcement of the Prohibition Against Sex
Discrimination Mandated by Title IX and EO 13160
Summary
This report provides a summary of the federal agencies’ enforcement of and
compliance with the prohibition against sex discrimination mandated by Title IX and
Executive Order 13160. Specifically, this report discusses the implementation of
regulations and procedures for enforcing the Title IX compliance of grant recipients
and for enforcing the compliance of the federal agencies themselves with President
Clinton’s Executive Order. In particular, this report focuses on the nondiscrimination
policies of four science-oriented agencies: the National Aeronautics and Space
Administration (NASA), the National Science Foundation (NSF), the National
Institutes of Health (NIH), and the Department of Energy (DOE). For purposes of
comparison, this report also examines the policies and procedures of the Department
of Education (ED). This report will not be updated.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agency Enforcement of Title IX with Respect to Grant Recipients . . . . . . . 2
A. The Title IX Common Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Title IX Regulations for Agencies Not Covered by the
Common Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Agency Compliance with Executive Order 13160 . . . . . . . . . . . . . . . . . . . . . 5
Assessment of Agency Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Agency Enforcement of the Prohibition
Against Sex Discrimination Mandated by
Title IX and EO 13160
Introduction
On the 25th anniversary of the enactment of Title IX of the Education
Amendments of 19721 - which prohibits discrimination on the basis of sex in
federally funded education programs - President Clinton announced two new efforts
to expand equal opportunity for the sexes. First, he directed federal agencies to
develop procedures for strengthening their enforcement of Title IX. Second, he
announced his intention to issue an executive order barring sex discrimination in
federally conducted education programs.2 By the summer of 2000, these two
initiatives had become a reality.
This report provides a summary of the federal agencies’ enforcement of and
compliance with the prohibition against sex discrimination mandated by Title IX and
Executive Order 13160.3 Specifically, this report discusses the implementation of
regulations and procedures for enforcing the Title IX compliance of grant recipients
and for enforcing the compliance of the federal agencies themselves with President
Clinton’s Executive Order.4 In particular, this report focuses on the
nondiscrimination policies of four science-oriented agencies: the National
Aeronautics and Space Administration (NASA), the National Science Foundation
(NSF), the National Institutes of Health (NIH), and the Department of Energy (DOE).
For purposes of comparison, this report also examines the policies and procedures
of the Department of Education (ED).
The responsibility of federal agencies to enforce policies that prohibit
discrimination on the basis of sex is two-fold. Under Title IX and its implementing
regulations, agencies must ensure that recipients of federal financial assistance do not
120 U.S.C. §§ 1681, et seq.
2Memorandum From President Clinton to the Heads of Executive Departments and Agencies
(1997),
available at http://www.usdoj.gov/crt/cor/coord/titleixmemo.htm.
3Exec. Order No. 13,160, 65 Fed. Reg. 39,775 (June 27, 2000). This order also bars
discrimination in federally conducted education and training programs on the basis of race,
color, national origin, disability, religion, age, sexual orientation, and status as a parent.
4For detailed information regarding Title IX and Executive Order 13160, consult the website
of the Coordination and Review Section of the Civil Rights Division of the Department of
Justice at http://www.usdoj.gov/crt/crt-home.html.
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engage in sex discrimination in their educational programs and activities.5 Under
separate authority established by Executive Order 13160, agencies must also ensure
that they themselves do not discriminate with regard to their federally conducted
education and training programs and activities.6 This executive order is designed to
guarantee that the federal government “hold[s] itself to at least the same principles
of nondiscrimination in educational opportunities as it applies to State and local
governments, and to private institutions receiving Federal financial assistance.”7
Agency Enforcement of Title IX with Respect to Grant
Recipients
Enacted in 1972, Title IX is designed to prevent sex discrimination by barring
recipients of federal funds from discriminating in their education programs or
activities. Specifically, the statute declares, “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,” subject to certain exceptions.8 Because Title IX’s
prohibition against sex discrimination focuses on federal funding recipients who
operate education programs or activities, the scope of Title IX extends to
noneducational institutions as well as to traditional education organizations. For
example, many entities that receive federal funds from agencies such as NASA, NSF,
NIH, and DOE operate science-oriented education and training programs and are
therefore subject to Title IX’s prohibition against sex discrimination.
A. The Title IX Common Rule. In order to comply with a long-standing
statutory directive that all federal agencies which provide funds to covered recipients
must adopt Title IX implementing regulations, the Department of Justice (DOJ)
issued a final common rule in August 2000 providing for agency enforcement of Title
IX among recipients of federal financial assistance who operate education programs
or activities.9 According to DOJ, the regulations were issued as a common rule
because “the standards [and procedures] established for the enforcement of Title IX
are the same for all of the participating agencies.”10 The final common rule
promulgated identical sex nondiscrimination regulations for twenty agencies,
including NASA and NSF.11 Neither the Department of Health and Human Services
520 U.S.C. § 1682; Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, 65 Fed. Reg. 52,858 (Aug. 30, 2000).
6Exec. Order No. 13,160, 65 Fed. Reg. 39,775 (June 27, 2000).
7
Id. at 39,775.
820 U.S.C. § 1681(a).
9Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 65 Fed. Reg. 52,858 (Aug. 30, 2000).
10
Id. at 52,858.
11NASA’s Title IX regulations are codified at 14 CFR Part 1253. NSF’s Title IX regulations
are codified at 45 CFR Part 618. The twenty agencies are: the Nuclear Regulatory
Commission, the Small Business Administration, NASA, the Department of Commerce, the
(continued...)
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(HHS), which houses NIH, nor DOE were included in the Title IX common rule
because they are among four agencies that had previously published Title IX rules.12
The following discussion describes the Title IX requirements promulgated in the
common rule and then compares the separate Title IX regulations issued by HHS and
DOE.
As noted in the common rule, recipients of federal financial assistance who
administer education programs or activities have long been required to comply with
the nondiscrimination mandate of Title IX. The common rule, however, “ensures that
individuals [participating in these programs] receive notice of their rights under Title
IX and outlines a process for handling administrative complaints for those agencies
that do not yet have such a process in place.”13 Furthermore, the Title IX regulations
issued in the common rule are patterned on the Title IX regulations originally issued
by ED in 1975.14 Citing the need for consistency in legal interpretation and ED’s
leadership role in Title IX enforcement, DOJ selected ED’s regulations as the Title
IX model. Although ED’s Title IX regulations and the regulations contained in the
common rule are not exactly the same,15 the enforcement portions for both sets of
regulations are identical.
Under the general Title IX regulations, recipients are required to provide
assurances that their education programs or activities are operated in compliance with
Title IX, to designate at least one employee to coordinate its compliance efforts, to
establish grievance procedures to resolve student and employee Title IX complaints,
and to notify program participants that sex discrimination is prohibited in the
recipients’ education programs or activities. The regulations also bar recipients from
discriminating on the basis of sex in: student admissions, recruitment, scholarship
awards and tuition assistance, housing, access to courses and other academic
offerings, counseling, financial assistance, employment assistance to students, health
and insurance benefits and services, athletics, and all aspects of employment,
including recruitment, hiring, promotion, tenure, demotion, transfer, layoff,
11(...continued)
Tennessee Valley Authority, the Department of State, the Agency for International
Development, the Department of Housing and Urban Development, the Department of
Justice, the Department of the Treasury, the Department of Defense, the National Archives
and Records Administration, the Department of Veterans Affairs, the Environmental
Protection Agency, the General Services Administration, the Department of the Interior, the
Federal Emergency Management Agency, NSF, the Corporation for National and
Community Service, and the Department of Transportation.
12HHS’s Title IX regulations are codified at 45 CFR Part 86. DOE’s Title IX regulations are
codified at 10 CFR Part 1042. The other two agencies that had previously published Title
IX regulations are ED and the Department of Agriculture.
13Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 65 Fed. Reg. 52,858, 52,864 (Aug. 30, 2000).
1434 CFR Part 106. ED’s Like other agencies, ED adopted its Title VI enforcement
regulations as its Title IX enforcement procedures. These Title VI regulations are found at
34 CFR §§ 100.6-100.12.
15Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 65 Fed. Reg. 52,858, 52,859 (Aug. 30, 2000).
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termination, compensation, benefits, job assignments and classifications, leave, and
training.16
Notably, the enforcement measures established by the common rule closely
parallel the anti-discrimination procedures required under other civil rights laws and
regulations. Indeed, because the enforcement provisions of Title VI of the Civil
Rights Act of 1964 are identical to Title IX, the common rule simply adopts the
existing Title VI enforcement procedures of each participating agency and applies
them to the respective agency’s Title IX regulations.17 Thus, the Title IX
enforcement provisions for NASA and NSF are identical to each agency’s respective
Title VI enforcement provisions, the latter of which are substantially the same for
both agencies.18
Under the enforcement regulations, agencies are required to conduct compliance
reviews and investigations of their grant recipients and to suspend or terminate
federal financial assistance where there is evidence of noncompliance. According to
the regulations, both NASA and NSF are required to assist recipients in complying
with Title IX. If the agency requests a compliance report from a recipient, that
recipient is required to provide whatever information the agency specifies.
Furthermore, the agency is entitled to access recipient records and other sources of
information in order to ensure compliance, and recipients must make such
information available to their program beneficiaries and participants.19 In addition,
agencies are responsible for making periodic compliance reviews of recipients in
order to enforce Title IX.
Agencies also must “make a prompt investigation whenever a compliance
review, report, complaint, or any other information indicates a possible failure to
comply.”20 For example, an agency must conduct investigations in response to timely,
written complaints from individuals who suspect that they have been victims of sex
discrimination. Regardless of the outcome of the investigation, recipients are barred
from retaliating against any individual who has made a complaint. If the investigating
agency does not find evidence that the recipient has failed to comply with Title IX,
then it must inform the recipient and the complainant in writing. If the investigating
agency does find evidence of noncompliance with Title IX, then the agency must
first attempt to resolve the matter informally. If the matter cannot be resolved
informally, then the agency may take additional steps to secure compliance.21
These additional procedures for securing compliance, which may only be
undertaken if the noncompliance has not been corrected through informal means,
16
Id. at 52,867-74.
17
Id. at 52,874-95.
18NASA’s Title VI enforcement provisions are codified at 14 CFR §§1250.105-1250.110.
NSF’s Title VI enforcement provisions are codified at 45 CFR Part 611.
19
See, e.g., 14 CFR § 1250.105; 45 CFR § 611.6.
2014 CFR § 1250.106(c).
See also, 45 CFR § 611.7(c).
21
See, e.g., 14 CFR § 1250.106; 45 CFR § 611.7.
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include the suspension, termination, or refusal to grant or to continue federal funding.
In addition, the investigating agency may refer the complaint to DOJ or to state or
local officials for further action.22 Likewise, if the recipient fails to provide the
assurances required under Title IX, an agency may terminate or refuse to grant or
continue federal financial assistance.23 However, prior to suspending, terminating, or
refusing to grant funds to its recipients, an agency must notify the recipient of its
noncompliance, provide an opportunity for an administrative hearing, make an
explicit finding of noncompliance, secure the approval of the appropriate agency
official, and file a report with the congressional committees that have jurisdiction
over the program involved.24
By November 28, 2000, each agency subject to the common rule was required
to publish in the
Federal Register a list of the programs covered by Title IX.25 In
addition, the agencies are required to periodically publish updates to these lists.
Although NASA issued its notice of covered programs and activities,26 NSF does not
appear to have done so. However, as with many agencies, the NSF Title VI
regulations contain an appendix that lists the statutory provisions under which NSF
provides federal financial assistance, and this list may be sufficient to comply with
the Title IX requirement.27
B. Title IX Regulations for Agencies Not Covered by the Common
Rule. Like NASA and NSF, both HHS, whose regulations apply to NIH, and DOE
adopted their existing Title VI enforcement regulations to serve as their Title IX
compliance procedures.28 The Title VI regulations of HHS are identical to the Title
VI procedures for NASA and NSF described above. Although not identical, the Title
VI enforcement procedures of DOE are substantially similar to the Title VI
enforcement regulations of the other agencies. As noted above, ED’s Title IX
regulations, which form the basis for the common rule, are substantially the same as
the Title IX regulations for other agencies.
Agency Compliance with Executive Order 13160
Issued in 2000, Executive Order 13160 declares, “No individual, on the basis
of race, sex, color, national origin, disability, religion, age, sexual orientation, or
status as a parent, shall be excluded from participation in, be denied the benefits of,
22
See, e.g., 14 CFR § 1250.107(a); 45 CFR § 611.8(a).
23
See, e.g., 14 CFR § 1250.107(b); 45 CFR § 611.8(b).
24
See, e.g., 14 CFR § 1250.107(c); 45 CFR § 611.8(c).
25Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 65 Fed. Reg. 52,858, 52,874 (Aug. 30, 2000).
26Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 65 Fed. Reg. 77,673 (Dec. 12, 2000).
2745 CFR Part 611, Appendix A.
28At 45 CFR § 86.71, HHS adopted the Title VI enforcement regulations found at 45 CFR
§§ 80-6 - 80-11 as its Title IX procedures. At 10 CFR § 1042.605, DOE adopted the Title
VI enforcement regulations found at 10 CFR §§1040,101-31 as its Title IX procedures.
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or be subjected to discrimination in, a federally conducted education or training
program or activity.”29 The order is designed to ensure that the federal government
follows the same nondiscrimination policy when conducting its own education
programs and activities as recipients of federal funding must follow under other
federal laws, including Title IX.
The types of education and training programs covered under the Executive
Order include a wide array of activities conducted by federal agencies, including
“schools, extracurricular activities, academic programs, occupational training,
scholarships and fellowships, student internships, training for industry members,
summer enrichment camps, and teacher training programs.”30 For example, in an
effort to educate the public about its space programs, NASA conducts tours of its
facilities.31 Were the agency to unjustifiably discriminate against women when
conducting its tours, it would violate the Executive Order.
Under the Executive Order, any individual who suspects that she has been a
victim of discrimination in violation of the order may file a written complaint with
the agency in question.32 Agencies are required to conduct investigations of these
complaints in accordance with procedures established under guidance developed by
DOJ,33 which was published in January 2001.34 Within 90 days of publication of the
DOJ guidance, agencies were required to establish a procedure for processing
complaints. DOJ anticipates that agencies will use the same procedures that currently
exist within all federal agencies for processing complaints regarding federally
conducted programs under section 504 of the Rehabilitation Act.35 Agencies are also
required to submit periodic reports to DOJ summarizing “the number and nature of
29Exec. Order No. 13,160, 65 Fed. Reg. 39,775, 39,775 (June 27, 2000).
30
Id. Notably, the Executive Order contains some exceptions. For example, certain education
and training programs operated by the military and the Bureau of Indian Affairs are exempt
from coverage, as are otherwise lawful affirmative action programs.
Id. at 39,776.
31Executive Order 13160 Guidance Document: Ensuring Equal Opportunity in Federally
Conducted Education and Training Programs, 66 Fed. Reg. 5,398 (Jan. 18, 2001).
32Individuals who are federal employees are also protected from discrimination under
additional federal laws. For example, the Equal Employment Opportunity Commission
(EEOC)’s regulations prohibit sex discrimination in federal employment, as does Executive
Order 11478. According to the DOJ guidance, “in order to promote the consistent and
effective enforcement of equal employment opportunity mandates for all federal employees,
. . . complaints filed under both this Executive Order and existing equal employment
opportunity laws should be consolidated and adjudicated under the relevant equal
employment opportunity [laws].”
Id. at 5,407. For further details on the enforcement
procedures for complaints by federal employees, consult the DOJ guidance at 66 Fed. Reg.
5,398, 5,407 (Jan. 18, 2001).
33Exec. Order No. 13,160, 65 Fed. Reg. 39,775, 39,777 (June 27, 2000).
34Executive Order 13160 Guidance Document: Ensuring Equal Opportunity in Federally
Conducted Education and Training Programs, 66 Fed. Reg. 5,398 (Jan. 18, 2001).
35
Id. at 5,407.
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complaints filed with the agency and the disposition of such complaints.”36 The first
such reports should have been submitted by March 31, 2002.37
The DOJ guidance is designed to assist federal agencies with implementing
Executive Order 13160, and it includes a description of the educational programs and
activities subject to coverage, examples of conduct that violates the order,
enforcement procedures, remedies, and reporting requirements. According to the
guidance, the Executive Order bars both the disparate treatment and disparate impact
forms of sex discrimination, as well as sexual harassment.38
Although agencies are expected to develop their own procedures to enforce
Executive Order 13160, the guidance sets forth certain minimal requirements. First,
agencies are required to establish procedures for receiving and reviewing complaints.
Second, agencies are expected to develop outreach materials in order to inform
individuals about the prohibition against sex discrimination in federally conducted
education or training programs and about the procedures for filing a complaint.39
Third, agencies must investigate the complaints received, although they may dismiss
complaints if they determine that no federally conducted education or training
program was involved. Fourth, agencies are strongly urged to resolve complaints
informally before embarking on a formal investigation. Fifth, agencies are required
to produce a written report that describes the results of a completed investigation.
Finally, if a report reveals a violation of the Executive Order, then the appropriate
agency official must determine what remedies are available to the complainant.
Although monetary relief is not available, complainants are entitled to other forms
of equitable relief.40
Assessment of Agency Enforcement
Because federal agencies do not, as a general rule, release specific information
on the nature and number of the complaints that they receive, it is difficult to assess
agency efforts to enforce the prohibition against sex discrimination mandated by Title
IX and Executive Order 13160. Nevertheless, some information is publicly available,
particularly where the civil rights office within each agency posts outreach materials
on its website or provides enforcement data in its budget documents.
In HHS, for example, the Office for Civil Rights (OCR) notifies visitors to its
website of their right to be free from sex discrimination in education programs
36Exec. Order No. 13,160, 65 Fed. Reg. 39,775, 39,778 (June 27, 2000). These complaints
must be filed annually for the first three years after the issuance of the Executive Order and
then once every three years subsequent to that period.
Id.
37Memorandum from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division,
Department of Justice to General Counsels or Agency Heads/Civil Rights Directors 2 (April
12, 2002),
available at http://www.usdoj.gov/crt/cor/Pubs/BoydEO13160rptmemo.pdf.
38Executive Order 13160 Guidance Document: Ensuring Equal Opportunity in Federally
Conducted Education and Training Programs, 66 Fed. Reg. 5,398, 5,400-03 (Jan. 18, 2001).
39
Id. at 5,407.
40
Id. at 5,408-10.
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funded by HHS and of the procedures that they must follow in order to file a
complaint. The office also details the department’s enforcement activities in its
annual budget, but it is difficult to identify whether NIH or another agency within
HHS is the source of the complaint or to determine the legal basis for the complaint
in question (
e.g., Title VI, Title XI, the Americans with Disabilities Act, etc.).41
Overall, however, OCR reports that it receives between 1,600 and 2,300
discrimination complaints per year. The majority of its enforcement efforts fall within
the high priority areas of adoption, managed care, services for limited-English
proficient persons, welfare reform, nondiscriminatory quality health care, and
services in the most-integrated setting for individuals with disabilities.42
Like HHS, DOE’s Office of Civil Rights provides a variety of outreach
materials on its website, including information about its Title IX policies and
procedures and the Title IX compliance requirements for grant recipients and DOE
employees. It appears, however, that DOE does not make information regarding the
number and nature of discrimination complaints public. Similarly, NASA’s Office
of Equal Opportunity Programs posts information about which divisions are
responsible for monitoring the compliance of federally assisted and conducted
programs and for processing discrimination complaints, but the availability of
detailed guidance and outreach materials appears to be limited. Likewise, NSF’s
Office of Equal Opportunity Programs notifies visitors to its website about their Title
IX rights and complaint procedures, but outreach materials again appear to be
limited.
In contrast, ED’s Office for Civil Rights (OCR) maintains a detailed web site
with a wide array of outreach materials on Title IX and other civil rights laws. These
materials provide information on legal rights and remedies, complaint procedures,
relevant laws and regulations, general civil rights data, and reports to Congress.
According to OCR, ED received 4,897 complaints of discrimination in FY 2000. Of
these complaints, 55 percent concerned disability discrimination, 18 percent
concerned race and national origin discrimination, and 8 percent concerned sex
discrimination.43 ED reports that in FY 2000 more than 2,000 recipients of federal
financial assistance made changes to their policies or practices as a consequence of
OCR’s intervention.44
Despite the data provided by ED, there remains little public information
available about the number and nature of Title IX discrimination complaints that the
federal agencies handle. Although all of the agencies in question have developed
Title IX implementing regulations, it remains unclear how agencies enforce Title IX
compliance among their grant recipients or whether agencies have complied with
Executive Order 13160's requirement to report complaint data and to develop their
41Department of Health and Human Services, Office for Civil Rights, FY 2003 Budget
(March 18, 2002),
available at http://www.hhs.gov/ocr/fy03budget.html.
42
Id.
43Department of Education, Office for Civil Rights, 2000 Annual Report to Congress,
available at http://www.ed.gov/offices/OCR/AnnRpt2000/index.html.
44
Id.
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own enforcement procedures. Thus, it remains difficult to assess the efforts of federal
agencies to enforce the prohibition against sex discrimination mandated by these two
laws.