Title IX, OCR and Filing a Complaint with OCR
The U.S. Department of Education’s Office for Civil Rights (OCR) enforces, among other statutes, Title IX of the Education Amendments of 1972. Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that:
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.
Scope of Title IX
Title IX applies to institutions that receive federal financial assistance from ED, including state and local educational agencies. These agencies include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.
Educational programs and activities that receive ED funds must operate in a nondiscriminatory manner. Some key issue areas in which recipients have Title IX obligations are: recruitment, admissions, and counseling; financial assistance; athletics; sex-based harassment; treatment of pregnant and parenting students; discipline; single-sex education; and employment.
Title IX Resources
U.S. Secretary of Education Betsy DeVos launched new resources to help students and schools understand the protections provided by the Department’s historic regulation on Title IX. The Rule, announced on May 6, 2020, following years of stakeholder input, public comment and careful deliberation, extends many new protections against sexual harassment, and strongly safeguards the rights of all students, including the right to due process. The Department also launched a new website that provides a one-stop resource for this key information, including how to file a complaint, an overview of the Rule’s protections for survivors, and a detailed webinar on how schools can fully implement and uphold the new provisions in the law. A summary of the Major Provisions of the Department of Education's Title IX Final Rule can be found here.
OCR’s Enforcement of Title IX
OCR vigorously enforces Title IX to ensure that institutions that receive federal financial assistance from ED comply with the law. OCR evaluates, investigates, and resolves complaints alleging sex discrimination. OCR also conducts proactive investigations, called compliance reviews, to examine potential systemic violations based on sources of information other than complaints.
In addition to its enforcement activities, OCR provides technical assistance, information and guidance to schools, universities and other agencies to assist them in voluntarily complying with the law.
Who Can File
Anyone who believes there has been an act of discrimination on the basis of sex against any person (or group) in a program or activity that receives Federal financial assistance may file a complaint with OCR under Title IX. The person or organization filing the complaint need not be a victim of the alleged discrimination and therefore may complain on behalf of another person or group. A complaint should be sent to the OCR enforcement office that serves the state in which the alleged discrimination occurred.
When to File
A complaint must be filed within 180 days of the date of the alleged discrimination, unless the time for filing is extended for good cause by the Enforcement Office Director. Prior to filing a complaint with OCR against an institution, a potential complainant may want to use his or her school's institutional grievance process to have the complaint resolved (though a complainant is not required by law to use the institutional grievance procedure before filing a complaint with OCR). If a complainant uses an institutional grievance process, his or her Title IX complaint must be filed with OCR within 60 days after the last act of the institutional grievance process.
What to Include
If you personally have been harmed by gender related discrimination then your complaint letter to OCR should explain the nature of how you were discriminated against; in what way; by whom or by what institution or agency; when the discrimination took place; how you were harmed; who can be contacted for further information; the name, address and telephone number of the complainant(s) and the alleged offending institution or agency; and as much background information as possible about the alleged discriminatory act(s). You will be asked for much identifying information, but remember that OCR keeps the identity of complainants confidential except to the extent necessary to carry out the purposes of the civil rights laws, or unless disclosure is required under the Freedom of Information Act or the Privacy Act (or otherwise required by law).
However, there are instances where an event, educational program (i.e. a single-sex, female-only program), scholarship program, common area (i.e. lounge, study area, etc...), campus club or other forum can and do meet the level of Title IX related discrimination. When this happens on a university campus, it warrants an OCR complaint. Sometimes an OCR caseworker will ask for specific male individuals who have applied to a single-sex, female-only program and who suffered discrimination. We suggest using the following language in your response:
"OCR regulations do not require that a specific, identifiable person has to have suffered an individualized injury before curing facial discrimination and facial violations of Title IX’s prohibition of sex discrimination. Additionally, there is no “legal standing” requirement at OCR to evaluate Title IX violations, and a complainant does not have the burden of “proving a negative” to show that there can be no possible rationale for explicit, facial violations of Title IX’s prohibition of sex discrimination. The burden for Title IX violations should be on the University, which should be required to defend its facial violations of Title IX when sex-specific, female-only programs like the University’s program being challenged."
To clarify, IF a complainant is aware of someone who has suffered discrimination, that information of course should be included. But identifying a specific male individual who has suffered an individualized injury is NOT required, and Title IX complaints do NOT require “legal standing.” CLICK HERE for an editable sample complaint that you can use as a template.
Title IX complaints are generally formal so this should be reflected in the language use. This doesn’t necessarily mean resorting to legalese, but use formal language. Instead of writing a narrative, you should list and describe each discriminatory action separately using as much detail and specifics as possible. We encourage you to work with an attorney or organization to draft and review your complaint. OCR enforcement offices also may be contacted for assistance in preparing complaints.
You can find a pre-prepared complaint form, along with some supplementary information and advice here. The form will ask you for various pieces of information, including:
Your contact information
Contact info for the institution you are filing your complaint against
Whether you have previously tried to resolve your complaint, as through your school’s grievance process, a due process hearing or with another agency
The content of your complaint; i.e. how your school violated your rights
Whether you filed within 180 days and if not, why
What you would like to see your school do as a result of your complaint
You will also be offered the opportunity to submit supplementary written materials that will add to or clarify your complaint.
Note: You do not have to use the form provided, and many successful complaints have been written using different formats.
How to File
Title IX complaints are generally submitted online, either through the electronic submission of the pre-prepared OCR complaint form or by email (OCR@ed.gov). However, you can submit your complaint, whether based on the online form or not, by snail mail.
Whether you file online or by mail, you will need to sign and mail a consent form to allow the OCR to process your complaint. This can be found in the PDF version of the complaint form, or if you are submitting electronically, will be given to you after you complete the form but before you press the final submit button.
If the OCR believes the information you provided is insufficient, they may contact you and ask for further details. Your addendums or answers to their specific questions must be submitted within 20 days of the OCR’s request.
OCR will typically process an investigation through a regional office (see Figure 2 below) covering the state in which the alleged violation occurred and if an investigation indicates there has been a violation of Title IX, will attempt to obtain voluntary compliance and negotiate remedies. Only when it cannot obtain voluntary compliance does OCR initiate enforcement action. Enforcement usually consists of referring a case to the Department of Justice for court action, or initiating proceedings, before an administrative law judge, to terminate Federal funding to the recipient's program or activity in which the prohibited discrimination occurred. Terminations are made only after the recipient has had an opportunity for a hearing before an administrative law judge, and after all other appeals have been exhausted.
Pending Cases Currently Under OCR Investigation
OCR has implemented two new issue codes under Title IX for cases received in or after January 2020: “single sex campus programs” (discrimination on the basis of sex in campus programs) and “single sex scholarships” (discrimination on the basis of sex in scholarship programs). OCR recently launched a webpage to track Pending Cases Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools which you can click on HERE.
How OCR Evaluates a Complaint
OCR evaluates the written information that it receives to determine whether it constitutes a complaint that is subject to further processing. If so, OCR determines whether it can investigate the complaint. OCR makes this determination with respect to each allegation in the complaint. For example, OCR must determine whether OCR has legal authority to investigate the complaint; that is, whether the complaint alleges a violation of one or more of the laws OCR enforces. OCR must also determine whether the complaint is filed on time. Generally, a complaint must be filed with OCR within 180 calendar days of the date of the alleged discrimination. If the complaint is not filed on time, the complainant should provide the reason for the delay and request a waiver of this filing requirement. OCR will decide whether to grant the waiver.
Basis for OCR’s dismissal of a complaint include:
OCR does not have legal authority to investigate the complaint;
The complaint fails to state a violation of one of the laws OCR enforces;
The complaint was not filed timely and a waiver will not be granted;
The complaint is speculative, conclusory, or incoherent, or lacks sufficient detail to infer discrimination and the complainant does not provide the information that OCR requests within 14 calendar days of OCR’s request;
The allegations raised by the complaint have been resolved;
The complaint has been investigated by another Federal, state, or local civil rights agency or through a recipient’s internal grievance procedures, including due process proceedings, and there was a comparable resolution process pursuant to legal standards that are acceptable to OCR or, if still pending, OCR anticipates that there will be a comparable resolution process pursuant to legal standards that are acceptable to OCR;
The same or similar allegations based on the same operative facts has been filed by the complainant against the same recipient in state or Federal court;
The complaint is a continuation of a pattern of complaints against multiple recipients that places an unreasonable burden on OCR’s resources.