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Legal Obligations to Online Students Under Title IX: Threshold Issues and Practical Considerations

keyboard_gavel_2Title IX compliance is an important issue that must not be overlooked by providers of distance education courses, programs and other online learning environments. DEAC thanks Gregory Ferenbach, Paul Thompson, and Naomi Harralson May from Cooley for graciously granting their permission to provide our Compass readers with their policy brief first published in Unbound.

Innovators in online education are hardly strangers to the legal uncertainty that often accompanies efforts to interpret and apply old laws to new realities. This post and the policy brief linked herein discusses one such area: legal obligations to online students under the federal statutory provision referred to as “Title IX,” which prohibits discrimination on the basis of sex in most educational programs and activities that receive federal funds. Specifically, 20 U.S.C. § 1681(a) 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.”

Since Title IX was adopted in 1972, federal agencies have developed regulations and policy guidance that are both copious and far-reaching. In addition, recent incidents of sexual assault at many high-profile institutions have moved Title IX compliance into the national spotlight. Institutions that fail to comply with Title IX may face federal agency compliance reviews as well as individual lawsuits from victims and alleged offenders, both of which can be costly and may result in reputational damage.

If an institution receives federal funds in any form, then the institution’s “education programs and activities” (not just those that actually use the funds) are covered under Title IX, regardless of whether the entity is public, private, or proprietary. Even entities that do not qualify as an institution of higher education may be subject to Title IX. There is no exception under Title IX for online courses or programs. Furthermore, “education programs and activities” are not limited to credit-bearing courses but include activities that are extracurricular, research-oriented, or occupational in nature. They include programs and activities that are not directly operated by a recipient entity, but that the recipient entity requires or considers equivalent to an education program or activity, such as clinical experiences, internships, and participation in online discussion boards.

Thus, Title IX applies equally to adult learners enrolled in one online class a week and to full-time students living on campus, and regardless of whether you provide online courses as an extension of a large research university or as a corporation that has received a federal grant for workforce training that is offered online.

To learn more about this topic and the threshold issues for assessing compliance in distance education courses and other online environments, read the policy brief in its entirety here.