Where Title IX Went Wrong
The equal opportunity law that ran amok
The Transformation of Title IX: Regulating Gender Equality in Education
by R. Shep Melnick
Brookings Institution Press, 2018, $35.99; 336 pages.
As reviewed by Christina Hoff Sommers
Title IX, the 1972 legislation banning sex discrimination in education programs that receive federal financial support, was a reasonable equality-of-opportunity law in its original form. So what explains the scorched-earth campaign against men’s sports carried out in its name? Why has it been used to deny students and professors due process and free speech in sexual harassment cases? When a Massachusetts district court judge reviewed Brandeis University’s Title IX–inspired harassment proceedings, he declared them “closer to Salem 1692, than Boston 2015.”
How did we get here?
I have been reading and writing about weird applications of Title IX for years. Until now, I didn’t fully understand the source of the weirdness. In his new book, The Transformation of Title IX, Boston College political science professor R. Shep Melnick provides the answer: the transformation happened slowly and incrementally and involved a strange symbiosis between government officials, federal judges, and activists. Melnick’s calm, lucid analysis shows how a law once intended to increase educational and athletic opportunities for girls and women came to diminish those opportunities for men and women alike.
Responsibility for administering Title IX falls to the U.S. Department of Education’s Office for Civil Rights (OCR). This small agency has the power to issue rules and regulations and to deny federal funding to schools that fail to meet them. But Congress has placed clear constraints on OCR rule making. New rules must be approved by the president after a “notice-and-comment” proceeding that allows affected parties—colleges and universities, civil liberties organizations, policymakers, activist groups, students, parents—to ask questions, raise objections, and request clarifications and revisions to proposed rules before they become binding policy.
But as Melnick shows, OCR officials found a way to rewrite the rules while sidestepping this process, simply by labeling a modification not as a formal rule change but as a “clarification” or “guidance.” Such changes were then announced as faits accomplis through friendly-but-firm “Dear Colleague” letters. When someone protested, OCR administrators would dig in their heels and insist they had merely clarified what was already in the law.
In a process Melnick calls “leapfrogging,” federal judges would often treat OCR “clarifications” as settled law, deferring to them in their rulings and sometimes even expanding them slightly. OCR could then refer to its clarifications as court-approved—and extend them a bit further. By this method, OCR officials have built an elaborate and aggressive regulatory empire—all the while denying that a single rule has been changed.
Colleges and universities had little choice but to comply with the guidelines and clarifications. After all, as Melnick shows, federal judges often treated the new directives as authoritative. Also, challenging OCR could subject a school to a costly and embarrassing Title IX investigation, with the threat of losing federal funding. Schools fell in line.
What motivated OCR officials to dodge the rules and impose radical new policies on the nation’s schools? And why did major education groups—the National School Boards Association, the American Council on Education, or the American Association of University Professors—have so little influence? Melnick was puzzled by that: “Title IX seemed destined to fall prey to regulatory ‘capture’—that is, domination by the regulated interests—in this case the education establishment,” he writes.
But the education establishment proved to be no match for gender advocacy groups—specifically the National Women’s Law Center and the Women’s Sports Foundation. When it came to regulating equity in college sports, these groups drove the agenda. They were gifted networkers and coalition builders. They were also motivated. In his characteristic understated style, Melnick writes: “Organizations representing schools and school officials have never replicated the intensity of these advocacy groups on Title IX issues.”
There could have been many sensible, non-radical ways to apply Title IX to sports programs. In assessing the fairness of a school’s resource distribution, for example, why not consider the full array of athletic opportunities—from varsity, club, and intramural sports to dance, fitness, and outdoor exploration programs? Or find a way to assess whether an institution’s offerings effectively satisfy the interests and abilities of both male and female students? But the women’s groups wanted more than that. In their view, if women were truly free and equal, they would be just as interested in competitive varsity sports as men. These advocates insisted on “proportionality”—if a college’s student body was 60 percent female, then 60 percent of the varsity athletes should be female. Anything less was proof of continuing discrimination. And rock climbing, yoga, and dance did not count. For the activists, Title IX was not an equal opportunity law; it was a mandate to change conventional understandings of what it means to be a man or a woman. “This was a heady job for government regulators,” writes Melnick.
In 1996, assistant secretary of OCR Norma Cantú sent out a “Letter of Clarification,” which mentioned “proportionality” as a “safe harbor” that would protect schools from investigation. Schools got the message that anything less than statistical parity was risky. Previously, schools had been safe from investigation if they could show they were making good-faith efforts to accommodate student interests and abilities in sports. But Cantú’s letter represented a radical policy change. It was in effect imposing a quota system—even though the original law explicitly forbade quotas. And the change was made by “administrative fiat,” in Melnick’s words, without a notice-and-comment proceeding or the president’s signature. But the OCR labeled the secretary’s decree a “clarification.” Judges deferred.
Melnick describes the chaos and expense that ensued. Colleges and universities generally have far more female than male students, yet far fewer women than men aspire to participate in varsity athletics. To keep their football teams and avoid losing even more male wrestlers, baseball players, and swimmers, most schools have opted to devote a greater share of their athletic budgets to varsity sports. Untold millions now go to a relatively small group of elite male and female athletes inside the increasingly cloistered, commercialized world of college sports. Melnick wonders what the current regulation-driven system has to do with increasing educational opportunities for young women. The average female college student might have benefited from more federal funding for physical fitness programs. Now, she helps foot the bill for the ever-expanding college athletic-industrial complex.
In April 2011, the head of OCR, Assistant Secretary of Education Russlynn Ali, sent out another now-famous Dear Colleague letter to colleges across the nation, outlining the radical steps colleges should take to curb an alleged epidemic of sexual mayhem on campus. Ali’s letter effectively mandated campus sex-crime tribunals. She advised schools to determine guilt by a very low standard—a “preponderance of evidence.” Mediation between accuser and accused was ruled out of order. The letter specified a new definition of sexual harassment: “unwelcome conduct of a sexual nature.” This definition includes casual comments—even jokes.
Ali’s goal, as Melnick explains, was to introduce a “new paradigm” into Title IX regulation. The old paradigm (that is, American law) attributes acts of sexual harassment to misbehaving individuals; the new paradigm (developed by radical legal theorists such as Catharine MacKinnon, professor at Michigan Law), blames systemic misogyny. For MacKinnon, an act of sexual harassment is part of a vast system of subordination—one of the many ways society “perpetuates the interlocked structures by which women have been kept sexually in thrall to men.” What did MacKinnonism entail for schools? To meet the new OCR standards, it was no longer enough for them to identify and punish serious perpetrators—the entire culture of the school had to change.
The letter stunned the education community. First of all, the U.S. Supreme Court had already set standards for what constituted sexual harassment in educational settings. In a 1999 ruling, it defined actionable harassment as behavior “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.” Ali’s letter had effectively overruled the Supreme Court. Colleges and universities were suddenly responsible for policing the everyday interactions of students—not just severe and persistent cases of harassment.
OCR also changed the focus of its investigations. In the past, its practice had been to investigate a particular case and determine whether or not a school had failed to protect the complainant’s right to an equal education. After the Ali letter, a complaint to OCR could trigger a full-scale, multi-year investigation into the school’s “sociocultural” environment. By the summer of 2017, OCR was investigating the sociocultural climate of hundreds of schools. Where did that leave complainants? In many cases, as bureaucratic pawns. Melnick quotes a survivor’s advocate who sums up the OCR response: “Thanks for the complaint, we’ll see you in four years while we do a compliance review.”
Ordinarily, a policy change as aggressive, controversial, and disruptive as the one established by Ali’s Dear Colleague letter would have been preceded by study commissions, congressional hearings, the introduction of amendments, and counter-amendments, and vigorous debate. Instead, as Melnick documents in relentless, meticulous detail, the radical transformation of college campuses was accomplished with little public notice and no open political participation. College administrators, ever fearful of being investigated, rushed to conform with the new policies.
Schools have now developed elaborate “sex bureaucracies” to educate, monitor, train, investigate, and punish. Harvard has 50 full- and part-time Title IX coordinators. Yale has 30. Swarthmore College—with only 1,500 students—has a network of Title IX deputy coordinators, fellows, investigators, and advisers. On campuses throughout the country, students and faculty are now routinely denied due-process rights. Hundreds of students, mostly young men, have been subject to kangaroo courts and expelled from school.
Melnick is calling for a return to the rule of law. He urges administrators, judges, and legislators to preserve and protect the fundamental principles of liberal constitutional democracy: due process, freedom of speech, academic freedom. Most of all, he pleads for returning Title IX to its original purpose—not quirky social engineering but expanded educational opportunities. He ends on a hopeful note. “We might learn that real progress involves going back to basics.”
The current Department of Education is moving in the right direction. Secretary Betsy DeVos has rescinded the April 2011 Dear Colleague letter and promises to replace it with rules developed through the required open process. She has also issued interim guidelines restoring due process to the college campus. “The era of rule-by-letter is over,” said the secretary.
But what if the damage proves to be irreversible? Universities have built up powerful internal bureaucracies devoted to preserving and expanding the dominion of Title IX. So far, most schools are sticking with the old rules and not adopting the secretary’s interim guidelines. U.S. senators Bernie Sanders and Kirsten Gillibrand have denounced DeVos’s reform proposals as “a disgrace” and “shameful.” Congressional Democrats have introduced the Title IX Protection Act to enact Ali’s Dear Colleague letter into law. A similar bill sailed through the California legislature—nearly unopposed.
Melnick’s faith in reform might seem naive except for one unexpected development. When the California Title IX protection bill came to Governor Jerry Brown’s desk last year, he refused to sign it. And his reasons for the veto sounded almost Melnickian. Accused students, the governor said, are owed “the presumption of innocence until the facts speak otherwise.”
The Transformation of Title IX is a disturbing tale of how, even in a rule-of-law nation like ours, bureaucrats and ideologues can subvert the law, wreak havoc on lives and civil liberties, and divert millions of dollars to harmful ends. Melnick’s book is an act of intellectual due process—it is scrupulous and nonpartisan. In these hyperbolic and hyper-partisan times, he has provided a model for how to address complex and contentious issues with reason and restraint.
Christina Hoff Sommers is a resident scholar at the American Enterprise Institute. Her books include Who Stole Feminism? and The War Against Boys.