Sec. 2. Findings

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Congress finds the following: During a decade of civil rights reforms, Congress passed title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq. ) (referred to in this section as “title VI”), which prohibits discrimination based on race, color, or national origin in federally funded programs and activities; title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 et seq. ) (referred to in this section as “title IX”), which prohibits sex discrimination in federally funded education programs and activities; section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794 ) (referred to in this section as “section 504”), which prohibits discrimination based on disability in federally funded programs and activities; and the Age Discrimination Act of 1975 ( 42 U.S.C. 6101 et seq. ), which prohibits discrimination based on age in federally funded programs and activities.

Half a century after their passage, still more needs to be done to ensure that students enjoy protections consistent with the spirit, intent, and promise of these groundbreaking civil rights laws. Schools are still failing to take necessary steps to prevent harassment on the basis of sex, race, national origin, color, and disability and provide survivors of sexual assault and other forms of harassment—especially women and girls, students of color, LGBTQI+ students, and students with disabilities—the support and services they need to feel safe and learn in school, denying them equal educational opportunities.

As the Supreme Court has held in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), covered entities are responsible for preventing and addressing harassment on the basis of sex in their education programs and activities under title IX. Following this principle, courts have similarly required funding recipients to address harassment based on race, color, national origin, and disability in their education programs and activities.

Perpetrators of harassment based on sex, race, color, national origin, or disability at school are not limited to students, nor are the victims of such harassment. Incidents have also involved faculty, administrators, coaches, volunteers, other staff members, and visitors. Sexual harassment of students, especially of women and girls, students of color, students with disabilities, and LGBTQI+ students, is widely prevalent in K–12 and higher education. For example— 1 in 5 girls ages 14 through 18 have been kissed or touched without their consent, 58 percent of LGBTQI+ youth ages 13 through 21 have been sexually harassed, and disabled children are 2.9 times more likely than their peers to be sexually assaulted; women and girls of color are more likely to experience sexual harassment in school than their White peers; and in college— more than 1 in 4 women, more than 1 in 15 men, and nearly 1 in 4 transgender, nonbinary, and gender-nonconforming students are sexually assaulted during their time as undergraduates; 1 in 7 women, 1 in 10 men, and 1 in 5 transgender, nonbinary, and gender-nonconforming students experience dating violence or domestic violence as undergraduates; and 1 in 10 women, 1 in 33 men, and 1 in 7 transgender, nonbinary, and gender-nonconforming students experience stalking as undergraduates.

Students also experience forms of sex-based harassment beyond sexual harassment, such as harassment based on sexual orientation, gender identity, sex characteristics (including intersex status), pregnancy, childbirth, medical conditions related to pregnancy or childbirth, and sex stereotypes. For example, according to one study, 86.3 percent of LGBTQI+ students experienced harassment or assault based on personal characteristics, 77.6 percent reported avoiding school functions, and 71.8 percent reported avoiding extracurricular activities because they felt unsafe or uncomfortable.

According to another study, 64 percent of girls who were pregnant or parenting reported not feeling safe at school as a barrier to attending school compared to 32 percent of girls overall. Like sex-based harassment, harassment based on race, color, national origin, and disability remains a problem at educational institutions. Between 2011 and 2016, the National Center for Education Statistics documented a 40-percent increase in college campus hate incidents. According to the Bureau of Justice Statistics, racial bias is the most common motivation behind these hate incidents.

The Centers for Disease Control and Prevention has agreed that racism has a profound and negative impact on the mental and physical health of people of color. As such, racist incidents can take a serious toll on students’ overall health and well-being, even affecting their academic performance. A 2021 UCLA study found that young adults who experience discrimination are at higher risk for both short and long-term behavioral and mental health problems that are exacerbated with each incident.

According to the Department of Justice, the rate of violence victimization against persons with disabilities is nearly 4 times the rate for nondisabled persons. Nearly 1/3 of children and adolescents with disabilities have experienced violence. Corporal punishment is almost twice as high in schools with a higher proportion of students with disabilities receiving special education services as in other schools. Girls with disabilities are also at higher risk of sexual violence perpetrated by their peers than nondisabled girls.

The Government Accountability Office estimated that about 1 in 4 students aged 12–18 saw hate words or symbols written at schools in 2014–2015, 2016–2017, and 2018–2019. Students also often experience intersectional forms of harassment that, for example, may include sexual harassment that is racialized or harassment based on having a disability and being transgender, among other types of intersectional harassment. Few students report harassment to their schools, often because of shame or self-blame, fear of retaliation, fear of being ignored or disciplined, fear of police or immigration officials, or lack of knowledge of services schools can offer to help.

In particular, women and girls of color, women and girls with disabilities, pregnant and parenting students, and LGBTQI+ students are too often disbelieved and met with unsupportive responses, including retaliation, after reporting sexual harassment because of stereotypes that label them as less credible. Men and boys, too, are often disbelieved or dismissed when they report sexual harassment. Failure of a school to comply with title IX, title VI, and section 504 may limit or deny the ability of students, employees, and others to participate in or benefit from the school’s education programs or activities leading to discrimination by creating a hostile learning environment that impedes educational attainment, damages rights to equal educational opportunities, and undermines learning for all.

When schools fail to protect student victims of harassment, including by failing to offer supportive measures that are designed to preserve and restore the educational opportunities of the victim, students often suffer in the form of emotional distress, mental health consequences, lower academic achievement, lost scholarships and financial aid, poor school attendance, and decreased school completion rates. Moreover, many schools may respond negatively to harassment by creating additional trauma and harm for the student victim (often by, for example, blaming the student for their victimization or by refusing to help them), which is also known as institutional betrayal .

Harm may also be caused by the Title IX coordinators having a conflict of interest, such as serving within school leadership or local educational agency leadership (including serving as a principal, vice principal, headmaster, superintendent, board member, general counsel, athletics director, coach, or dean of students, or on a judicial hearing board or in a position to whom an appeal might be made). The language of title IX is broad and sweeping, making clear that the intent of Congress is to provide avenues of redress for opening the courthouse doors to victims of a wide range of sex discrimination in schools.

However, since the passage of title IX, courts have created barriers that make it extraordinarily difficult for survivors to obtain redress from schools through private litigation. In a 5 to 4 opinion in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court held that students subjected to sex-based harassment by their teachers may receive a damages remedy in private litigation under title IX only when school officials with authority to institute correct measures on the recipient’s behalf have actual notice of the harassment and are deliberately indifferent , or respond in a clearly unreasonable manner, to it.

A year later, in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court held that in order to receive money damages under title IX, students who experience sex-based harassment by their peers, must additionally show that the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. Courts have applied the same standards in requiring funding recipients to address harassment based on race, color, national origin, or disability.

In contrast, in the workplace, under title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq. ) (referred to in this section as “title VII”), a plaintiff experiencing harassment based on sex, race, color, national origin, or religion by a coworker or other non-supervisor need only show their employer reacted negligently in response to severe or pervasive harassment of which the employer knew or should have known. And sometimes—such as when a supervisor fires someone because they refuse to submit to sexual advances—title VII automatically holds an employer liable.

Although they do not affect the relevant standards for individuals to obtain injunctive and equitable relief for harassment on the basis of race, color, sex, national origin, age, or disability under covered programs and activities, the Supreme Court’s decisions in Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education and lower court opinions severely limit the availability of remedies for such individuals by imposing more stringent standards for recovery of damages.

Yet in many cases, damages are the only remedy that would effectively rectify past harassment. Further, in 2022, in Cummings v. Premier Rehab Keller PLLC, 142 S. Ct. 1562 (2022), the Supreme Court limited the ability of plaintiffs bringing disability discrimination claims under the Patient Protection and Affordable Care Act ( Public Law 111–148 ) and section 504 to recover emotional distress damages, which are often the sole or primary remedy for survivors of harassment. The dissenting Justices in Cummings warned that this ruling upset Congressional intent and longstanding precedent under these and other statues, suggesting the possibility that its logic might be extended in the future to other laws such as title IX and title VI.

Some lower courts have added additional onerous barriers, such as one under which a school is liable for its failure to address known sexual harassment only if the victim later experiences further sexual harassment as a result of this failure. These limitations thwart the purpose of Congress to protect students from harassment and ensure non-discriminatory educational environments. They create prohibitively high standards for the lawsuits of students regarding harassment based on sex, race, color, national origin, and disability under title IX, title VI, and section 504 that are more onerous than those applicable to workplace harassment lawsuits under title VII.

As a result, schools may do less to address harassment against their students than to address the same harassment of their employees. This means that students, who are often children and young adults, must suffer worse harassment than adult employees before they are entitled to a remedy in court. Gebser v. Lago Vista Independent School District, Davis v. Monroe County Board of Education, and subsequent opinions create an incentive for covered entities to insulate themselves from knowledge of harassment rather than adopting and enforcing practices that will minimize the danger of such harassment.

These opinions thus undermine the purpose of prohibitions on discrimination in the civil rights laws, which is to induce covered programs or activities to adopt and enforce practices that will minimize the danger that vulnerable students or other persons will be exposed to such odious behavior. Current title IX regulations issued by the Department of Education in 2020 entitled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (part 106 of title 34, Code of Federal Regulations), have made it more difficult for student survivors to report harassment to schools and receive help, including by, for example, only allowing schools to respond to title IX complaints of sexual harassment that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a school program or activity—meaning students will have to endure repeated and escalating levels of harassment before their complaint can even be investigated.

These regulations also pose uniquely burdensome procedures for cases of sexual harassment that are not required for any other type of student or staff misconduct, further sweeping sexual violence under the rug. Department of Education guidance explains the requirement under title VI and section 504 for institutions to respond to harassment based on disability, race, color, or national origin that is sufficiently serious to deny or limit the ability of a student to participate in or benefit from the education programs and activities of the recipient.

Schools with affirming and welcoming environments that provide support and protection against all forms of harassment and discrimination ensure that students have better social, behavioral, academic, and mental health outcomes. Legislative action is necessary and appropriate to restore the access to the courts that was sharply limited by Gebser v. Lago Vista Independent School District, Davis v. Monroe County Board of Education, Cummings v. Premier Rehab, and other court opinions, restore the availability of a full range of remedies for harassment based on sex, race, color, national origin, disability, or age, and prevent discriminatory harassment in schools.

Any action needs to take into full account the intersectionality of incidents of harassment in educational programs or activities. Sex-based violence and harassment often harms those populations already most vulnerable at education institutions. In landmark rulings in Price Waterhouse v. Hopkins 490 U.S. 228

(1989)and Bostock v. Clayton County, Ga. (2020), the Supreme Court correctly interpreted title VII to hold that discrimination on the basis of sex stereotypes, sexual orientation, or gender identity necessarily constitute discrimination because of sex . To date, Federal courts of appeal have held uniformly that these holdings apply equally to title IX. Legislative action is necessary and appropriate to codify these established interpretations of title IX law and ensure support and protection for LGBTQI+ students against severe and widespread discriminatory harassment. Discrimination by State and local governments on the basis of sex, race, color, national origin, age, or disability in education programs and activities receiving Federal financial assistance violates the Equal Protection Clause of the 14th Amendment to the Constitution of the United States. In many circumstances, such discrimination also violates other constitutional rights such as those of liberty and privacy under the Due Process Clause of the 14th Amendment. Congress may validly invoke its powers under the 14th Amendment to provide a full range of remedies in response to discrimination by both private and government actors. In enacting the protections of the amendments made by this Act, Congress is acting pursuant to its authority under section 5 of the 14th Amendment to the Constitution of the United States, the Commerce Clause of section 8 of article I of the Constitution of the United States, and the Spending Clause of section 8 of article I of the Constitution of the United States. Members of Congress have long been advocating for substantive reforms that support student survivors and ensure gender equity in schools, including the HALT on Campus Sexual Violence Act, the Supporting Survivors of Sexual Harassment in Schools Act of 2020, the Patsy T. Mink and Louise M. Slaughter Gender Equity in Education Act, the Stop Sexual Harassment in K–12 Act, and the Exposing Discrimination in Higher Education Act. Provisions from these groundbreaking pieces of legislation serve as the foundation on which any larger comprehensive reform must be built. Restoring the availability of a full range of remedies for harassment will— ensure that students and other persons participating or attempting to participate in federally funded programs and activities have protection from harassment on the basis of sex (including sexual orientation, gender identity, sex characteristics, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and sex stereotypes), race, color, national origin, disability, or age; encourage covered entities to adopt and enforce meaningful policies and procedures to prevent and remedy harassment; deter incidents of harassment; and provide appropriate remedies for harassment. Schools do not harass students on the basis of race, gender, or sex when they teach or incorporate anti-racism principles, diversity, equity and inclusion practices, culturally relevant curriculum and culturally responsive teaching, critical race theory, or otherwise focus the experiences of students of color, women and girls, and LGBTQI+ students. Indeed, such teaching and training, when implemented appropriately, may often further the purposes of the mandate of title VI to prohibit discrimination based on race, color, and national origin and the mandate of title IX to prohibit discrimination based on sex, while also ensuring that schools are advancing equity.

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