Practically everyone has heard or said it: "You can't do that! It's sexual discrimination!" It usually comes up regarding a job, like when a female worker gets fired or demoted in favor of a male worker.

What you may not realize is that it's illegal to discriminate on the basis of sex in schools, too. But only sometimes, as a recent incident at the Virginia Military Institute (VMI) shows.

VMI

VMI is a four-year state college with an all-military undergraduate program. Its students are called "cadets," and in addition to courses offered in almost any other college or university, VMI students receive extensive military training. Up until 1997, VMI was an all-male school. In 1996, the US Department of Justice (DOJ) filed a discrimination lawsuit challenging the all-male admissions policy. Eventually, the US Supreme Court ordered VMI to allow females to apply for admission, and the first female cadets enrolled in 1997.

VMI is again in the legal spotlight, and once again the problem is sexism or sex discrimination. As of November of 2009, the US Department of Education, and specifically its Office for Civil Rights (OCR), is investigating claims that the school's policies are sexist and hostile toward female cadets.

Details of the complaint filed with the OCR haven't been made public, but the claims involve the continued use of derogatory and discriminatory language. OCR is also investigating the sexism in VMI's tenure and promotion policies, and its marriage and parenthood policy, which requires female cadets resign once they marry or conceive a child.

If OCR determines that VMI has broken the law, it may refer the case to the DOJ, which may file a lawsuit.

The Law

Title IX of the Education Amendments of 1972 (Title IX) is the major federal law that makes it illegal to discriminate on the basis of sex when it comes to education. It states in part:

"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."

The key here is federal financial assistance. Title IX only applies to "public schools," meaning schools that get money from the federal government. It may be either directly or through state education programs that receive such money to dole out among the state's public schools. When it applies, though, it applies broadly - it covers every school, from public elementary schools to public colleges and universities.

Right now, Title IX covers about 16,000 local school districts, 3,200 colleges and universities, and 5,000 for-profit schools. As the VMI case illustrates, it's designed to make sure that there's no discrimination in admissions, student treatment and services, and discipline, as well as the hiring, retention, and promotion of teachers and staff.

What about "private" schools? Schools that are truly private and receive no federal money simply aren't covered by Title IX. Good examples are schools that are owned and operated by churches and other religious organizations and operate solely on money received from their congregations or memberships.

That doesn't mean they have carte blanche power to discriminate, though. For instance, some states have anti-discrimination laws that may apply to schools. And laws like Title VII of the Civil Rights Act of 1964 and the laws of many states may make it illegal for the school to discriminate against employees and potential employees on the basis sex, race, and national origin.  

A good example is a recent case from California. The California Lutheran High School, a privately funded religious school, expelled two students because, allegedly, they were lesbians. The students filed a discrimination lawsuit and lost. Title IX didn't apply to the school, and the state's anti-discrimination laws applied only to businesses, not schools.

What to Do

If you (or your child) are being discriminated against at school on the basis of sex, it's a good idea to talk to an attorney immediately. You'll find out if the school is covered by Title IX or some other federal or state anti-discrimination law. Or, if you're certain that the school gets federal funds, you can file a complaint with the OCR. You can try to talk school officials and hope to have the incident investigated and resolved.

In any event, don't sit still and do nothing. Protect your rights, and may be helping another student.

Questions for Your Attorney

  • Is a private Catholic school that gets a little state funding for books and bus transportation covered Title IX?
  • Does it cost anything to file a complaint with the OCR? How long will it take for OCR to investigate the complaint?
  • Is it illegal discrimination for a public high school to have drastically different dress codes for male and female students? Can it legally enforce a dress code to begin with?