The new issue of the BYU Education and Law Journal includes an article by Professors Julie Davies (McGeorge School of Law) and Lisa Bohon (Cal State Sacramento) called Re-Imagining Public Enforcement of Title IX. Their piece is an important contribution to the scholarship on Title IX, very little of which analyzes enforcement and evaluates its efficacy.
The authors maintain that we should not view private enforcement (i.e., lawsuits) as a substitute for government's efforts to enforce Title IX. Even though lawsuits are effective and remedying and deterring noncompliance, there are more instances of noncompliance than plaintiffs and attorneys have the financial incentive to litigate. Private enforcement, therefore, fails to fully enforce the statute, so public enforcement must be effective.
To this end, the authors recommend that OCR do more to help funding recipients prevent instances of noncompliance, and recommend specifically, for example, disseminating practical, useful materials like "sample policies, checklists or guidelines, research on issues or alternate procedures." OCR could provide this kind of service effectively if it partnered with and capitalized on the expertise of state and local officials who already serve as the "front lines of enforcement."
The authors also recommend that OCR employ "intermediate" sanctions. OCR's enforcement currently is aimed at determining whether or not to cut of an educational institution's federal funds -- a sanction so "draconian...that the enforcing agencies are reluctant to use it." OCR could, they argue, initiate litigation, take on litigation on behalf of a party, or intervene in ongoing private litigation. This type of enforcement action might help dispell the widespread perception, which the authors confirmed in interviews with educational institutions subject to Title IX, that OCR is a paper tiger.
Citation: Julie A. Davies & Lisa M. Bohon, Re-Imagining Public Enforcement of Title IX, 2007 BYU Educ. & L.J. 25 (2007).