June 23 marked the fiftieth anniversary of Title IX of the Education Amendments of 1972. A product of the Civil Rights era and the women’s liberation movement, Title IX bans discrimination on the basis of sex in educational institutions that receive federal funding. But however benign the intentions of its original supporters, Title IX has become a weapon with which left-wing ideologues impose their views and punish dissenters, by means of an entrenched and destructive campus bureaucracy. To restore sanity to American higher education, we must repeal Title IX.
The Civil Rights Act of 1964 prohibited public- and private-sector entities from discriminating on the basis of race, color, and national origin. Title VII of the Act added sex to this list of protected categories for employment discrimination. Then, in 1972, Congress also passed a general education bill banning sex discrimination in schools receiving federal funds—Title IX of the Education Amendments of 1972, or “Title IX” for short. The law was uncontroversial when it passed, especially compared to the contemporaneous Equal Rights Amendment, the feminist attempt to amend the federal Constitution to mandate uniform treatment of men and women. Title IX had comfortable majorities in the House and Senate and was signed into law by Richard Nixon.
For most Americans, extending the principle of anti-discrimination to women seemed reasonable. The text of the statute is short:
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.
But the law soon caused controversy. In practice, Title IX operates as a contract between the federal government and schools: A school agrees not to discriminate, and the government recognizes the school as eligible for federal funding. But within a few years of Title IX’s enactment, the Department of Health, Education, and Welfare, the precursor to today’s Education Department, began to interpret it as requiring schools to spend the same amount of money on women’s sports as on men’s sports, regardless of disparities in interest. In short order, men’s teams in baseball, wrestling, and track were eliminated to make room for women’s teams in lacrosse, basketball, and soccer. Moreover, in 1987, Congress passed the Civil Rights Restoration Act, which defined “federal support” to include government-provided student aid. The effect was to make nearly every college and university in the United States subject to the federal government’s Title IX requirements.
For decades, Title IX news was mostly about this sports angle—a surprising development, given that the law’s original supporters had regarded it as primarily about access to education, not athletics. Then, in 1991, attorney Anita Hill accused Supreme Court nominee Clarence Thomas of having sexually harassed her when she worked for him at the Equal Employment Opportunity Commission. The claims were explosive: She alleged that Thomas had made vulgar remarks in her presence, about pubic hair in his drink and about his sexual prowess. This tawdry episode made “sexual harassment” a household word, though it failed to keep Thomas off the Court.
Hill’s accusations concerned the employment setting, so she could have complained formally under Title VII, the federal ban on sex discrimination in employment. Title VII and Title IX are often discussed together, since both ban sex discrimination; courts interpreting one law often seek guidance from jurisprudence that interprets the other. Sex discrimination was then a relatively new legal area, compared, for example, to constitutional law; precedent was sparse as courts worked to determine what, in fact, constituted an offense. Quid pro quo propositions, in which a superior demands sex in exchange for good grades or a job promotion, were readily recognized as discriminatory acts. But Anita Hill had not alleged this type of sex discrimination. Instead, she pointed to something else—what is now known as a “hostile environment.” By the late 1980s, judges had determined that this more nebulous problem could be a form of sex discrimination.
In accord with evolving legal theories of “hostile environment,” all of which tended to expand the concept, federal officials soon mandated that Title IX coordinators ensure that no “hostile environments” exist in educational settings. Just before the George W. Bush administration took office in January 2001, Clinton officials in the Education Department issued guidance that defined “hostile environment” as including “unwelcome conduct” of a sexual nature. Moreover, what counted as unwelcome was to be “considered from both a subjective and objective perspective.” Bush officials did nothing to alter or rescind this directive, and so it stayed in place for more than a decade.
During the Obama administration, a more ideological feminism gained still greater control over interpretation of Title IX. In 2011, Catherine Lhamon, assistant secretary of the Education Department’s Office for Civil Rights under Barack Obama, enforced a “Dear Colleague” letter that defined “sexual harassment” and hostile environment more expansively. Her OCR also launched investigations of colleges and universities that had been deemed insufficiently zealous in their enforcement of Title IX. The same Dear Colleague letter lowered the burden of proof, discouraged cross-examination, and encouraged a single-investigator process whereby the Title IX coordinators at colleges and universities were called to act as police, judge, and jury—all changes that tended toward more frequent findings of fault.
In 2017, Trump administration Education Secretary Betsy DeVos formally rescinded the 2011 Dear Colleague letter as a first step in promulgating her own regulation. Unlike the education secretaries in the Clinton and Obama Administrations, who used letters of guidance to impose new definitions, DeVos followed the formal rulemaking steps prescribed by the Administrative Procedures Act, which requires opportunity for citizen input through formal public comment periods. Promulgated in 2020, her Title IX Rule requires due process basics in school Title IX adjudications, such as the presumption of innocence, the right to see evidence, and the right to independent decision-makers free of conflicts of interest. It therefore effectively prohibited the single-investigator approach, restoring a modicum of sanity to Title IX implementation.
But the DeVos reform is now under attack from the Biden administration, in which Lhamon serves once again as the assistant secretary running OCR. Its recently proposed Title IX regulation targets most of these protections for removal, including by favoring something like the single-investigator model (now called the “individual meeting” method) to replace a formal hearing. It also echoes Clinton-era expansions of “hostile environment” by introducing the new term “sex-based harassment,” defined as “unwelcome conduct that is severe or pervasive and that, based on the totality of the circumstances and evaluated subjectively and objectively, creates a hostile environment.” This definition illustrates how nebulous, expansive, and unstable the “hostile environment” category can be.
What’s more, Biden’s proposed rule redefines “sex” to include both same-sex orientation and an individual’s “gender identity.” Clearly Biden officials are abusing Title IX, and doing so for ideological purposes. To the degree that a “hostile environment” can be subjective, moral objections to homosexuality and to the latest gender ideology may be deemed sex discrimination. And that is exactly what has happened in many recent Title IX investigations.
In short, Title IX has now become not only a weapon but a blank check for radicals in the federal government and on campus, who see the law as an opportunity to impose the latest progressive politics. As R. Shep Melnick observed in a 2018 survey: “Title IX initially focused on what happens in the classroom. That focus soon shifted to the playing field, then shifted again to bedrooms and bathrooms.” Title IX is now an instrument of “the much more ambitious project of changing the way we think about sex differences, gender roles, and sexuality in general.” And this ambitious project does not rely on persuasion. Dear Colleague letters and other mechanisms of bureaucratic maneuvering create a lawless system of coercion that tramples the basic rights of individuals and punishes dissent.
Some observers hope that the courts will rein in the excesses of Title IX. In the 2021–22 term, the Supreme Court determined that the Environmental Protection Agency had overstepped its bounds and unlawfully made policy in place of Congress with its Clean Power Plan, which was not authorized by the Clean Air Act. Perhaps the Court will restrain other government agencies such as the Education Department as well. But there are grounds for skepticism.
The Supreme Court’s most definitive word on Title IX was in the 1999 case of Davis v. Monroe, which the DeVos team often cited in its comparatively sensible definition of sexual harassment. The case involved a fifth-grade girl in Georgia, LaShonda Davis, who for six months was taunted by a male classmate with comments such as “I want to feel your boobs.” This classmate also accosted LaShonda in gym class and rubbed his body against hers in a school hallway. LaShonda complained to the school, but action was not immediately taken. Eventually, the male student was charged with and pleaded guilty to sexual battery. In the interim, LaShonda’s grades had suffered, and she had stopped going to school. Her mother sued the school for failing to ensure LaShonda’s access to education, citing sex discrimination in violation of Title IX as the cause.
The majority opinion insisted that harmful conduct could give rise to a Title IX violation only if it were “so severe, pervasive and objectively offensive” that it denied access to education. In this way, the Court kept the focus of Title IX on educational access, and sought to ensure that Title IX would not become a broad invitation for students to sue over misunderstandings (occasional off-color language or jokes, for example) or one-time actions. Notably, the Court shut the door on subjective offense by insisting that the conduct be “objectively offensive.”
This restrained understanding of the ambit of Title IX is admirable. But the Davis opinion also authorized student lawsuits against schools for Title IX violations, including in cases of student-on-student conduct, not just for conduct by a school employee. These lawsuits can also seek damage awards. This means that, under Title IX, educational institutions are answerable both to the federal government and to potential complainants—though many observers claim that the former influences Title IX practice more. In recent years, most lawsuits against schools have been filed by victims of the Title IX regime, not by its advocates. Those victims are often male students wrongly accused under Title IX and then wrongly branded as sex offenders because of due process violations.Disturbingly, schools have not been deterred by these lawsuits. They appear to regard them as the price of advancing their ideology.
As the actions of the Clinton, Obama, and Biden administrations make clear, federal bureaucrats have flouted Supreme Court precedent with expansive redefinitions beyond what Davis allows—including, now, redefinitions of “sex” itself. The activity of the Office for Civil Rights, whether in “guidance” or in proposed regulations or in its general oversight of Title IX, will be very difficult to rein in. For this reason, we must not put our trust in jurists.
There is a further barrier to any courtroom strategy for rolling back Title IX excesses. Under Lhamon’s leadership, OCR changed its approach to investigating claims of Title IX violations. In the past, it had made public statements only after completing its investigations. Lhamon inaugurated a policy of publicizing the names of all schools under investigation, some of which remained so for years. This policy has changed the incentives: Schools now need not only to avoid violations, but to avoid being investigated in the first place. Not surprisingly, they have hired more Title IX coordinators and adopted extremely stringent policies, which often echo the ideological agendas of the federal bureaucracy and of activist feminist organizations.
The Office for Civil Rights has also expanded the scope of Title IX investigations. Lhamon explained that the office would treat complaints filed by individuals as opportunities “for a broader assessment of a school’s overall compliance.” The possibility of a single violation in one area occasioned wholesale revisions of school policies. In this way, Title IX offices were able to mandate ideological faculty training and student programs. What’s more, many OCR investigations ended in settlements, one key element of which was the creation of large Title IX compliance offices. As Melnick notes, “It has not been unusual for schools to demonstrate their good faith by hiring former OCR lawyers to run them.” And so a revolving door allows feminist bureaucrats to migrate from government to campus and back again.
A change in administration can bring relief. The DeVos team did a good job of rebalancing requirements toward a more sane understanding of sexual harassment. But, as the Biden administration now shows, such gains can be reversed. More significantly, the entrenchment of ideologues in university administrations, and their empowerment by the tangled web of judicial precedents, administrative lawmaking, and private lawsuits, cannot easily be undone by Supreme Court decisions.
Today, the most extreme cultural ideologues have access to legal and quasi-legal instruments to impose their views on the educational establishment. Title IX coordinators function as veritable commissars. Star Chamber proceedings make a mockery of basic rights. The only way to dismantle this perversion of justice and debasement of our educational institutions is to repeal Title IX.
This measure will sound extreme to many. Must we sacrifice the great good of ensuring women’s equal access to education in order to prevent these abuses? The answer is no. That’s because Title IX is no longer needed to ensure educational opportunity, free of sex discrimination, for women—if it was ever needed in the first place.
The fact that Title IX quickly became about sports rather than education suggests that its ostensible original purpose was specious, or at least misleading.
As University of Michigan–Flint professor Mark Perry and others have documented, women have outnumbered men as undergraduates since the mid-1970s, arguably before the first Title IX cohort could have graduated. More importantly, the number of women in postsecondary education had been growing since 1947, the earliest year in government records on this point. In all likelihood, women became a majority in college in the 1970s because of a trend already underway, with Title IX having nothing or little to do with it.
Even if Title IX played a role in women’s full access to educational opportunities in the past, it is now redundant. Today, women represent nearly 60 percent of undergraduates. Women earn more PhDs than men do. More than 50 percent of medical and law school students are female. From its very first decade, Title IX has been a law in search of a purpose, which is why it has been such a ready tool for mischief.
Title IX’s more moderate defenders cite its success in promoting women’s sports. But it is far from clear that this success has been an unalloyed good. A study led by William Bowen indicates that female college athletes do more poorly in school than do female non-athletes. Data show that before Title IX, however, female athletes did just as well in college as non-athletes. Has Title IX given women the dubious honor of joining male athletes as an exploited class that is brought to campus to win games, in defiance of what is best for them as young people in need of an education? The problems are not only in university athletic departments. Young girls are fed into our society’s mania for sports and its delusional view that everyone should aim to be a major leaguer and Olympic medalist.
Perhaps these fifty years of mission drift were not accidental. Katharine Silbaugh suggests that feminists had long sought a law like Title IX as an end-run around prosecutors, while others saw it as a tool for social engineering to remake male-female relations—not just at work and at home, but in college romance. Silbaugh documents the feminist discontent with the standard of proof in cases of rape, where the “he said, she said” problem means that a tie goes to the accused, since the accused has the presumption of innocence. Absent other evidence, if a man says a woman consented to sex and the woman says she did not, the woman generally doesn’t prevail. Tradition handled this problem by cautioning against time alone for college couples in the evening and curbing visits in dorm rooms, with restrictions known as parietal rules. But because feminists endorsed sex-on-demand as part of the sexual revolution, their solution to this problem was to lower the burden of proof and discard the presumption of innocence—if not in the criminal justice system, then in the parallel system on campus called Title IX. People often wonder why and how the crime of sexual assault became a matter of civil rights under a nondiscrimination law like Title IX. One answer is that Title IX feminists wanted it that way.
Newcomers to these debates often assume that Title IX is necessary to discipline sexual misconduct. On the contrary, schools have always had the means to address sexual misconduct under their general conduct codes and through their disciplinary offices. There was no need to create a parallel disciplinary track, as the Title IX apparatus does. That apparatus answers to the demands of feminist social engineering—and, more recently, the LGBT agenda—not to the standards of decency that any institution ought to maintain when it comes to intimate relations.
Ironically, schools are now showing that they know how little they need Title IX. Samantha Harris is an attorney in private practice, with many Title IX cases. She reports that schools are now choosing to discipline students accused of sexual misconduct under their own student conduct codes, written in accord with the principles that informed the Obama Department of Education, rather than Title IX. They do so in order to evade the DeVos rule’s due process requirements. This is called the “dual track” phenomenon. When it comes to the purported “epidemic” of sexual violence on college campuses, the existence of two tracks proves the point: Title IX was never needed and isn’t needed now.
One last practical point must be made. The weaponization of Title IX is not just a top-down phenomenon by radical federal bureaucrats. Yes, Catherine Lhamon is an unapologetic feminist, happy to abuse Title IX for her political goals. But the problem is also on the ground, in the campus Title IX office. A 2020 National Association of Scholars Report on Title IX found that the overwhelming majority of Title IX staff have backgrounds in women’s studies, gender studies, and similar disciplines. They have virtually no legal experience with due process; sadly, this statement includes the staffers with law degrees. Only one of the fifty-five campus officials surveyed had courtroom experience of defending accused parties and therefore familiarity with due process as a real, and really needed, staple of adjudication.
Purdue University, for example, suspended a “John Doe” for a year after a suicidal female student claimed their sexual relations had been nonconsensual—even though she had neither written down nor filed a formal complaint against him, or shown up at the conduct hearing, where a feminist Title IX coordinator was both fact-finder and final judge. Doe was never allowed to see the charges against him, or to present exculpatory evidence, such as friendly text messages from his accuser after their encounters. He was found to be a sex offender, and in addition to his suspension lost his ROTC scholarship.
Columbia University’s Title IX coordinator similarly found a John Doe guilty of sexual assault and likewise suspended him for a year—having interviewed no witnesses, having found no evidence of coercion, and having ignored friendly contacts after the alleged misconduct.
Hundreds of similar stories have been aired in court, and the majority of federal circuits have not only chastised schools but lamented the campus culture that appears at war with the best of America—its legal practices and level playing field. Perhaps the strongest language comes from Judge José Cabranes in a Cornell University Title IX case decided this past spring: “The day is surely coming—and none too soon—when the United States Supreme Court will be able to assess the various university procedures that undermine the freedom and fairness of the academy in favor of the politics of grievance.” Sober and forceful as this language is, it falls short of what needs to be said (though perhaps not by a federal judge), namely this: Title IX must go.
A system is only as good as the people in it. And the Title IX system is run by ideologues, not professionals. Attempting to get fairness from them is a square-the-circle exercise. If some universities choose to keep their Star Chamber procedures and woke commissars, so be it. But we must eradicate the legal structure that compels them to do so. That means repealing Title IX.
Though Americans support equal opportunity and therefore have supported Title IX in principle, the original necessity for the law is dubious and its record of mischief—even misery—undeniable. Voters were not consulted when Title IX started to address sports, then sex crimes, then student dating, then due process. The history of Title IX has been a signal instance of culture warring by means of bureaucratic power, masked by the prestige of the civil rights movement.
It’s time to talk about repealing Title IX and the feminist-industrial complex it has spawned.
Teresa R. Manning is the policy director at the National Association of Scholars.
Image by Montana Suffragettes via Creative Commons. Image Cropped.