Dear Colleague Letter Addresses Single-Sex "Voluntary Youth Service Organizations"

Yesterday the Department of Education's Office for Civil Rights released a Dear Colleague Letter aimed at clarifying the relationship that Title IX-covered educational institutions may have with outside organizations that discriminate in their membership on the basis of sex.  Title IX regulations prohibit schools from offering "substantial assistance" to most organizations that engage in the kinds of discrimination that schools themselves would be prohibited from engaging in under Title IX.  Substantial assistance means things like allowing the organization to use school facilities that are not otherwise open to the public, or providing financial support, staff, or other assistance.

However, as the letter explains, Title IX expressly exempts "voluntary youth service organizations" that have "traditionally limited membership to "persons of one sex and persons of less than nineteen years of age." 20 U.S.C. 1681(a)(6). The statute names the YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls as examples of these exempt organizations. I think additional examples that could fit this criteria include Girls Inc., Boys and Girls Clubs, as well as other organizations that are targeting opportunities to boys or girls of a particular race and ethnicity, such as 100 Black Men of America.

This means that schools may offer "substantial assistance" to these organizations without jeopardizing Title IX compliance and, as a result, federal funding.  However, the letter clarifies, in addition to meeting the statutory criteria of being aimed at youth and having a tradition of single sex membership, the organization must provide students with actual opportunities to do public service. Moreover, the letter clarifies that the only discrimination tolerated by such organizations is discrimination in membership. A school cannot provide assistance to organizations that commit other violations of Title IX, such as sexual or gender-based harassment. Moreover, a school must ensure comparable opportunities for boys and girls.