Case 7:16-cv-00108-O Document 25 Filed 10/21/16 Page 33 of 64 PageID 435 22 their insurance plans.21 More importantly, HHS’s refusal to follow the plain text of Title IX exceeds its statutory authority. Congress incorporated “title IX of the Educa- tion Amendments of 1972 (20 U.S.C. 1681 et seq.),” 42 U.S.C. § 18116(a)—which in- cludes the abortion exemption—and it is not for the agency to cherry-pick which parts it will follow. C. HHS’s failure to allow employers to accommodate employees’ reli- gious beliefs is contrary to Title VII.

An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that the law’s requirements conflict with the organization’s religious tenets. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a).

Under Title IX, “[s]tudents are not only protected from discrimination, but also specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits of’ any ‘education program or activity receiving Federal financial assistance.’” Davis, 526 U.S. at 650 (quoting 20 U.S.C. § 1681(a)); see also 34 C.F.R. § 106.31(b).

es not assert a Title IX claim against any other Defendant, but to the extent that her complaint could be read to do so, such a claim would be subject to dismissal for the same reason. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 19 of 27 Page 14 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 (quoting Mitchum v. Foster, 407 US 225, 239, 92 S Ct 2151, 32 L Ed 2d 705 (1972)). Section 1983 is qualitatively different from Title IX (and Title VI). For example, Section 1983 claims may be brought against a government official who inflicted personal injury on a plaintiff (e.g., excessive force by a police officer), but Title IX claims may be brought only against institutions, not individuals, and Title IX's charge is preventing recipients of federal funding from discriminating in educational programs. 20 USC § 1681(a). At the time Title IX was enacted in 1972, Oregon already had a state law prohibiting discrimination in employment on the basis of sex.

Importantly, Title IX also specifies that its prohibition against gender discrimination shall not “be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist” between the total number or percentage of persons of that sex participating in any federally supported program or activity, and “the total number or percentage of persons of that sex in any community, State, section, or other area.” 20 U.S.C.A. § 1681(b). Subsection (b) also provides, however, that it “shall not be construed to prevent the consideration in any ... proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.”

The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime. Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.

at 31,379 & n.14. Indeed, while Title IX contains a religious exemption, see 20 U.S.C. § 1681(a)(3) (exempting an “educational institution which is controlled by a religious organization” under certain circumstances), and a provision ensuring “[n]eutrality with respect to abortion,” see id. § 1688, Section 1557 does not, see 42 U.S.C. § 18116.

Title IX defines “sex” in a binary way. See 20 U.S.C. § 1681 (referring to “students of one sex,” “both sexes,” “students of the other sex”). It also maintains neutrality on the topic of abortion.

Student Plaintiffs thus belong to a protected group. 20 U.S.C. § 1681(a). b. Student Plaintiffs Are Subjected to Unwelcome Sexual Harassment.

Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 24 of 55 23 B. Plaintiff Fails to Establish Proof Required for Title IX Liability for Claims of Student-On-Student Sexual Harassment Title IX of the Education Act, 20 U.S.C. § 1681(a) provides that "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" except for limited exceptions, none of which apply in this case. 20 U.S.C. § 1681(a). In Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court recognized an implied private cause of action under Title IX. The court has also recognized that money damages are available in this type of action.