EDUCATION

Laws prohibiting discrimination in educational opportunities also apply to any private school or university, if the institution or its students receive funds from the federal government. For example, if students participate in federally-funded student grant programs, or the science department receives federally-funded research grants, then all of the programs and facilities at the institution must provide equal educational opportunities to all students.⁽²⁾

ADMISSIONS AND SCHOOL PROGRAMS

Women who attend public schools or colleges, or a private school or college that receives federal money, are entitled to equal opportunity with respect to school admissions, enrollment in classes, financial aid, and participation in sports and clubs. The rights outlined in this chapter do not generally apply to students at private schools that receive no federal or state money.

Title IX

The United States Education Act Amendments of 1972, Title IX, generally prohibit educational institutions that receive federal financial assistance from excluding or discriminating against a person on the basis of his/her sex in any educational program or activity. (20 U.S.C. §§ 1681 et seq.; and 34 C.F.R. Part 106.) This means that any private school or college that receives money from the federal government must generally be open to both men and women in its admission's policies, and the programs and services offered by the institution may not favor one sex over the other. The disparity in the funding of, and/or the scholarships available for, women's and men's athletic programs may be evidence of a violation of Title IX protections. (Cohen v. Brown university (1st Cir. 1996) 101 F.3d 155.)

However, Title IX provides certain exemptions for educational institutions whose primary purpose is to train individuals for military service or the merchant marines, and for private institutions with a continual tradition of single sex admissions. In addition, educational institutions controlled by religious organizations are exempt from the provisions of Title IX, if providing equal opportunities runs counter to the tenets of the religion. (20 U.S.C. §§ 1681(a)(3).)⁽³⁾ The exemptions for certain institutions may permit those institutions to continue to be eligible for federal funds, even if they discriminate on the basis of sex, but the exemptions will not excuse schools from other laws or regulations prohibiting discrimination in education, such as the Equal Protection Clause or the Civil Rights Act of 1964. (United States v. Virginia (1996) 518 U.S. 515; and United States v. Mass. Maritime Academy (1st Cir. 1985) 762 F.2d 142.)

Educational institutions receiving federal money cannot discriminate in their admissions policies on the basis of marital or parental status. (34 C.F.R. § 106.40(a); 45 C.F.R. § 86.21(c).)

Furthermore, educational institutions receiving federal money cannot discriminate or exclude a woman from admission on the basis of pregnancy, childbirth, termination of pregnancy or recovery therefrom. (34 C.F.R. § 106.40(b); 45 C.F.R. § 86.21(c).)

Civil Rights Act of 1964

The Civil Rights Act of 1964, Title IV, generally prohibits states from discriminating against any person because of his/her sex, including discrimination in the admission to state educational institutions. (42 U.S.C. § 2000-6c.) Therefore, a state cannot decide that only men are permitted into the engineering department of a state university, or that only women may apply to a nursing school. Title IV is not limited to schools that receive federal funding, but generally applies to all public school boards and public colleges. (42 U.S.C. § 2000c(c) and (d).)

Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment generally prohibits states from denying any person within its jurisdiction equal protection of the laws. Excluding women from state-sponsored schools is a denial of equal protection. The state of Mississippi established a nursing school that admitted only women. The U.S. Supreme Court struck down the school's women-only admission's policy because it denied men equal protection of the laws. (Mississippi university for Women v. Hogan (1982) 458 U.S. 718.)

For a public state school to justify gender-based admissions policies, it must show that the discrimination serves an important state objective, and that the exclusion of one sex is "substantially related to the achievement of those objectives." (Mississippi university for Women v. Hogan, supra, 458 U.S. 718, 724.) Schools may not establish discriminatory admissions policies based on the belief that women would not fit into certain types of school programs. The U.S. Supreme Court recently held, in United States v. Virginia, supra, 518 U.S. 515, that the state of Virginia could not exclude women from its prestigious Virginia Military Institute based upon the unproven assertion made by school officials that women would not fit in with the school's atmosphere or teaching goals.⁽⁴⁾ The Supreme Court held that the school denied women equal protection of the laws because its exclusion of women was based upon unproven generalizations about the abilities and roles of men and women.

California Law

It is the policy in California to afford all persons, regardless of their sex, equal rights and opportunities in educational institutions. (Ed. Code, § 200 et seq.)

Affirmative Action Programs

Affirmative action admissions programs have been used by universities and graduate schools to provide an avenue to increase the admission of women, persons of diverse ethnic or racial make-up, and economically disadvantaged students. The U.S. Supreme Court held in university of California Regents v. Bakke (1978) 438 U.S. 265, that the university's special admissions program was invalid under the Equal Protection Clause.⁽⁵⁾ A number of the court's opinions discussed that the goal of achieving a diverse student body was sufficiently compelling to justify consideration of race in admission's policies under certain circumstances.

Preferential affirmative action programs in California may be eliminated or severely restricted in the future. In 1996, California voters passed the California Civil Rights Initiative (Proposition 209) which prohibits the state and any other public entity from discriminating against, or granting preferential treatment to any group or individual on the basis of race, sex, color, ethnicity, or national origin in the areas of public employment, education or contracting.⁽⁶⁾

Since the Ninth Circuit upheld the constitutionality of Proposition 209, preferential affirmative action programs, if any, used by public state colleges and graduate programs are illegal in California. (Coalition for Economic Equity v. Wilson, supra, 110 F.3d 1431.)⁽⁷⁾

Coursework

Classes at public schools and at private schools that receive federal funds, must be open to both sexes. Classes in homemaking, auto mechanics, gardening, and shop must be open to both male and female students. However, sex education classes may be restricted to students of one sex.⁽⁸⁾ (45 C.F.R. § 86.34(e).)

Counselors must not discourage or guide young women away from certain careers such as electronics, medicine, law and police work, just because the counselors believe such jobs to be "unsuitable" for women. Counselors must provide all students, male and female, with available information on all careers.
(45 C.F.R. § 86.36.)

Single Gender Academies

The Single Gender Academies Pilot Program provides an opportunity for school districts in California to establish single gender elementary and secondary schools and programs for students of each sex who would benefit from single gender education. In 1996, the California Legislature passed a law permitting ten school districts to apply for $500,000 grants to establish single gender schools or programs. (The first year's funding may be followed by a second year of funding.) The purpose of the pilot program is to establish diversity in educational opportunities for boys and girls. Enrollment in a single gender academy will be voluntary. (Ed. Code, §§ 58520-58524.) Academy programs have commenced in the Lincoln Unified School District in Stockton, the Butte Valley School District in northern Siskyou County, and the San Francisco Unified School District. Additional single gender academies will be funded in Orange County, San Jose and East Palo Alto.

Gender Equality Review

To ensure that California schools are complying with laws regarding sexual discrimination, the Superintendent of Public Instruction is required to conduct an annual evaluation of twenty schools to determine the number of sexual discrimination complaints received, and to ensure that all programs and services offered provide gender equality. (Ed. Code, §§ 252 and 253.)

Students with Disabilities

The recently enacted Individuals with Disabilities Education Act ensures that students with disabilities are provided a free and appropriate public education, including special education and related services designed to meet the needs of children with disabilities. (20 U.S.C. § 1400 et seq.)⁽⁹⁾

Release Time for Religious and Moral Instruction

Parents may request release time from school attendance for their children to receive moral or religious instruction off campus, for up to four days per month, if the student otherwise meets attendance requirements, and the school gives its consent. (Ed. Code, § 46014.)

Federally-funded education programs for disadvantaged students do not violate the Establishment Clause if the instruction takes place on the grounds of a religious institution. In a recent U.S. Supreme Court decision, the court held that a New York City program that sent public teachers into parochial schools to provide remedial education to disadvantaged students was not a violation of the First Amendment's Establishment Clause. (Agostini v. Felton (1997) ___ U.S. ___; 117 S.Ct. 1997.)

Scholarships

Scholarships and financial aid must be made available to all students on an equal basis. Educational institutions may distribute scholarships or fellowships established pursuant to domestic wills, bequests, trusts, or similar legal instruments, or by acts of a foreign government that require funds be awarded to a particular sex. The overall distribution of such scholarship funds must be made in a manner that does not discriminate on the basis of sex. (34 C.F.R. § 106.37; Ed. Code, §§ 230(b) and 69500.)

Specific scholarships for men or women may be legal. For example, a women's club scholarship for the top woman senior in a high school is allowable, provided that the overall effect of the sex-restricted scholarships and other forms of financial assistance do not discriminate on the basis of sex. (34 C.F.R. § 106.37(b).)

A post-secondary educational institution may provide a scholarship or financial assistance to an individual upon the basis of personal appearance, poise and talent, such as an award in a pageant in which participation is limited to one sex. However, pageants must still comply with other nondiscriminatory provisions of state and federal laws. (Ed. Code, § 226; 20 U.S.C. § 1681(a)(9).)

Sexual Harassment

It is California's policy to promote gender equality and to eliminate sexual discrimination in educational institutions. (Ed. Code, § 212.6) To assist students and parents in knowing their rights and responsibilities, schools are also required to annually provide parents with their written sexual harassment policy. (Ed. Code, § 48980(f).)

Students sexually harassed at school may take legal action against school districts. Sexual harassment in the educational setting is defined as "unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature," made by either a teacher or fellow student. (Ed. Code, § 212.5.) The U.S. Supreme Court has held that school districts may be sued for sexual harassment perpetrated by a teacher against a student under Title IX. (Franklin v. Gwinnett County Public Schools (1992) 503 U.S. 60.) Likewise, students harassed by other students may sue a school district for failing to stop sexual harassment if administrators knew, or should have known, that the student was enduring a hostile educational environment, and failed to take prompt action to remedy the situation. (Doe By and Through Doe v. Petaluma City School Dist. (N.D. Cal. 1996) 949 F.Supp. 1415 (holding that the standards for employer liability in work-related sexual harassment cases based on Title VII apply to school districts in student-on-student harassment situations).)⁽¹⁰⁾

The use of sexually vulgar or obscene speech in college or graduate school courses may be permissible. While Education Code section 212.5 defines sexual harassment to include unwanted verbal conduct of a sexual nature, First Amendment protection for free speech may still permit unwanted sexual speech in the classroom. In a recent case, the Ninth Circuit Court of Appeals held that a professor who used offensive, vulgar or obscene language in his classroom, including discussions of consensual sex with children, could not be disciplined for violating the school's sexual harassment policy, even though a female student was offended by his teaching style. (Cohen v. San Bernardino Valley College (9th Cir. 1996) 92 F.3d 968.)

Students may not be disciplined for engaging in constitutionally protected speech or communication. Colleges and graduate schools may not discipline a student for speech that, if made off-campus, would be protected by the First Amendment. Private religious schools controlled by a religious organization are exempt from this provision. (Ed. Code, § 94367.)

Students in private and public colleges and universities must be made aware of the policies and procedures established for protecting students from violent crimes and sexual assaults. (Ed. Code, §§ 94380(c), 94385, 67380 and 67385.) Colleges and universities with more than 1,000 students must compile and maintain records of crimes, and sexual assaults on campus, and establish safety procedures for students, such as the location of security personnel, and safe routes through campus. In addition, the administration must provide written information setting forth the procedures for reporting crimes and the services available to victims of sexual assaults.

In 1994, the Legislature enacted the California Schools Hate Violence Reduction Act of 1995. This Act requires the State Board of Education, if private funds are available, at the request of the Superintendent of Public Instruction, to do the following:

adopt policies and guidelines to prevent and respond to acts of violence;

revise existing state curriculum, frameworks and guidelines and the moral and civic education curricula to include human relations education;

establish guidelines for use in teacher and administrator in-service training programs: (a) to promote an appreciation of diversity; (b) to discourage discriminatory attitudes and practices among pupils, teachers, administrators, and counselors; and (c) to enable teachers and administrators to prevent and respond to acts of hate violence;

revise guidelines previously adopted by the board to include procedures to prevent and respond to acts of hate violence; and,

encourage teachers to impress upon the minds of pupils the meaning of equality and human dignity, and to foster an environment free from discriminatory attitudes in order to prevent acts of violence. (Ed. Code, §§ 45, 33032.5 and 44806.)

An act of hate violence is grounds for expulsion from school for grades four through twelve. (Ed. Code, §§ 48900.3 and 48915.)

Sports

Men and women/boys and girls must have an equal opportunity to participate in sports offered at schools. (34 C.F.R. § 106.41; 45 C.F.R. § 86.41; and Ed. Code, § 230(c).) Schools may not decide to fund only the men's varsity teams, and yet refuse to fund women's varsity teams because of the expense. (Cook v. Colgate university (N.D. N.Y. 1992) 802 F.Supp. 737.)

Equal opportunity does not mean that men and women/boys and girls must share the same toilets, showers or locker facilities. Men and women are entitled to the same privacy in these facilities that they have always had. However, the facilities and services for men and women must be of equal quality. (Ed. Code, § 231; 45 C.F.R. § 86.33.)

Physical education classes must be coeducational. However, such classes involving contact sports may be segregated by gender. (34 C.F.R. § 106.34(c); 45 C.F.R. § 86.34(c).)

"Equal opportunity" does not mean that all teams must be coed. Separate teams may be offered for males and females where separate teams are necessary to meet the needs and abilities of the students. (Ed. Code, §§ 41, 230(c) and 66016; and 45 C.F.R. § 86.41(b).)

Students of both sexes must generally be allowed to try out for any team in a non-contact sport if the school does not sponsor a team for the excluded sex. This is true only if athletic opportunities for that sex have been limited in the past. (34 C.F.R. § 106.41; 45 C.F.R. § 86.41(b).)

However, girls do not have a right to participate on a boys' contact sports team, whether or not there is a team in that sport just for girls. (34 C.F.R. § 106.41; 45 C.F.R. § 86.41(b).)

Equal opportunity in athletic programs means that schools must provide equivalent equipment, supplies, scheduling of games and practice times, travel and meal allowances, access to locker rooms, coaching, opportunity to receive academic tutoring, provision of medical, housing, dining and training facilities and publicity for girls' and boys'/men's and women's teams. (34 C.F.R. § 106.41, 45 C.F.R. § 86.41(c) and Ed. Code, § 230(c).)

Schools may spend money unequally on sports for each sex, if the quality of the programs for each sex is comparable. (34 C.F.R. § 106.41; 45 C.F.R. § 86.41(c).) A significant difference between the female student population when compared to the percentage of females participating in athletic programs may be an indication of the discriminatory use of funds. (Pederson v. Louisiana State university (M.D. La. 1996) 912 F.Supp. 892, where the female student population made up 49% of the students, but the athletic department had never expanded beyond 29% female participation.)

All coaching positions must be open to candidates of both sexes; the best qualified candidate should be hired. For example, a school cannot require that all of its boys' teams be coached by men and all of its girls' teams be coached by women. (34 C.F.R. § 106.51 et seq.; 45 C.F.R. § 86.51 et seq.)

Housing

Co-educational schools may provide separate living accommodations for each sex. Such accommodations may be separate, but each accommodation must contain equivalent facilities and services. (45 C.F.R. § 86.32.)

Social Organizations and Activities

Most school activities must be open to enrollment by any qualified and interested student, regardless of his or her sex. (Ed. Code, § 200 et seq.; and 20 U.S.C. § 1681(a)(6).)

Private single sex activities and father-son/mother-daughter activities may sometimes be permissible, so long as opportunities for "reasonably comparable" activities are offered to students of both sexes. (Ed. Code, § 225; and 20 U.S.C. § 1681(a)(8).)

Recipients of federal funds may make requirements based on vocal range or quality. For example, a soprano-alto chorus may be effectively limited to only women. (34 C.F.R. § 106.34(f); 45 C.F.R. § 86.34(f).)

Private single sex social organizations, such as sororities and fraternities, may be permissible. (20 U.S.C. § 1681(a)(6); and Ed. Code, § 223.)

GRIEVANCES AND ENFORCEMENT

If you feel that a school or college has discriminated against you because you are a woman, or because of your marital status, or if you believe that a school or college has discriminated against your daughter or son, you may wish to contact the appropriate administrator of the school. School districts are required to have a Title IX coordinator and an established grievance procedure. (45 C.F.R. § 86.8 and Ed. Code, §§ 260-263.)

You may want to contact:

Superintendent of Public Instruction
K-12 Network Planning and Information Center
California Department of Education
721 Capitol Mall
P.O. Box 944272
Sacramento, CA 94244-2720
(916) 657-9662

Universities of California:
Chancellor's Office for each University

California State Colleges and Universities:
Dean of Students for each state college or university

California Community Colleges:
Compliance Officer for each campus
California Attorney General's Office
Public Inquiry Unit
1300 I Street
P. O. Box 944255
Sacramento, CA 94244-2550
(916) 322-3360 (Calling from outside of California)
Toll-free (800) 952-5225 (Calling from inside of California)

U.S. Department of Education
Office of Civil Rights
50 United Nations Plaza, Room 239
San Francisco, CA 94102
(415) 437-7700
(415) 437-7786 (TDY)

1. By executive order, on June 18, 1997, President Clinton ordered all federal agencies to comply with Title IX, even if not technically required to do so. Schools run by the Defense Department and Bureau of Indian Affairs, as well as federally-sponsored fellowships and grants, will be affected.

2. In 1984, the U.S. Supreme Court ruled that Title IX, which prohibits discrimination in educational opportunities, only applied to those programs or services that directly received federal funding. (Grove City College v. Bell (1984) 465 U.S. 555.) In 1987, however, Congress added provisions to Title IX specifying that if an educational institution receives any federal funding, then all of its programs and services must provide equal educational opportunities. (Civil Rights Restoration Act of 1987, Pub.L. No. 100-259; § 908, 102 Stat. 28 (1988).)

3. A private religious college (exempt under Title IX) that practiced racial discrimination in its admission's policy was denied a charitable tax exempt status. The U.S. Supreme Court held that the school's discrimination policy was so out of step with the conscience of the community that it provided no public or charitable benefit. (Bob Jones university v. United States (1983) 461 U.S. 574.)

4. In that case, the Court did not accept the testimony of the school's experts, and held that general categorizations based on the preconceived notions of the nature and abilities of one sex cannot be used to perpetuate or create legal, social or economic inferiority for women.

5. However, the Fifth Circuit Court of Appeal recently held that the lack of diversity in a law school, even if there had been past discrimination against a certain group, could never be a compelling state interest to justify a race-based affirmative action program. (Hopwood v. State of Texas (5th Cir. 1996) 78 F.3d 932, cert. den. ___U.S. ____, 116 S.Ct. 2581 (1996).)

6. In 1995, the Regents for the university of California voted to discontinue affirmative action policies in the admission of students to the UC system. This new policy began with the 1997 school year.

7. A suit has been filed in Alameda County Superior Court alleging that the alumni association and Boalt Hall have created and administer race-based and sex-based scholarship funds in violation of Proposition 209. (Driscoll v. Kay, Case No. 790351-7.)

8. Whenever any part of instruction on health, family life and sex education conflicts with the religious training or beliefs of parents, parents may submit a written request to excuse their children from such instruction. (Ed. Code, § 51240.)

9. For more information on the rights of persons with disabilities see the latest Attorney General handbook on disability rights.

10. But see Rowinsky v. Byran Independent School Dist. (5th Cir. 1996) 80 F.3d 1006, where the court refused to impose liability on a school district pursuant to Title IX unless the student could prove that school administrators intentionally discriminated against the student by failing to remedy the sexual harassment because of her sex. The United States Supreme Court recently asked the U.S. Solicitor General's Office for its views on an 11th Circuit ruling that Title IX does not provide a cause of action against a school system for peer hostile-environment sexual harassment. (Davis v. Monroe County Board of Education, Case No. 97-843.)