Title IX’s Transformation
There’s no better emblem of the complicated evolution of civil rights in America than the implementation of Title IX of the Education Amendments Act of 1972. Originally passed to ensure equal access to educational resources, Title IX reads as follows:
“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.”
Although a libertarian might bristle at Title IX’s financial involvement in education, the statute otherwise seems innocuous — requiring nothing more than equal treatment for students, regardless of gender.
Since the 1970s, however, women have not only achieved parity with men in college admissions, they have surpassed men in graduation rates. Thus, the purpose of Title IX seems largely to have been achieved.
As the cultural landscape has changed, however, the focus of anti-discrimination efforts has also shifted. After omen could no longer claim discrimination at the admissions level, bureaucrats started to advocate in other areas like athletics, where men traditionally received more resources in accord with their greater interest in sports (especially at the elite level). Most people are familiar with Title IX’s equalization of athletics, but in terms of peak controversy, this was a passing phase in the law’s evolution.
Now, educational institutions have become the prime battleground in a larger culture war that includes the debates over sexual harassment, due process, “rape culture,” and transgender rights. In 2016, Republicans argued that Title IX has been perverted “by bureaucrats — and by the [then] President of the United States — to impose a social and cultural revolution upon the American people.”
How did the seemingly uncontroversial notion of non-discrimination has become such a lightning rod in the American culture war?
R. Shep Melnick is a professor of American politics at Boston College, where he focuses on the intersection of law and politics. Melnick argues that the current enforcement of Title IX has transformed the act from its original intention by politically motivated bureaucrats. He recently wrote The Transformation of Title IX [@The Brookings Institution Press (2018)] as a response to the partisan vortex that has swallowed rational discourse about the law. Shep joined the show to discuss the problems of overly-zealous administrative lawmaking in the context of the Title IX debate.
DEAR COLLEAGUE: DUE PROCESS IS DONE
The U.S. Department of Education’s Office for Civil Rights (OCR) has the authority to issue new rules governing non-discrimination. The Administrative Procedure Act specifies that prior to a rule change, there must be a period for “notice-and-comment” by relevant parties in the educational institutions. The modern controversy hinges around a few legally questionable actions taken by the OCR in its administration of Title IX.
In 2011, the Obama administration issued new “guidelines” on sexual harassment to federally-funded universities that bypassed the standard notice-and-comment requirements for such changes. The administration claimed its guidelines constituted mere “clarifications” of earlier policies. In contrast, statements from the administration suggested that it was a sweeping overhaul of the entire campus culture as it relates to sexual harassment complaints. The infamous “Dear Colleague Letter” — directed from the OCR to all universities receiving federal funds — specified that a single sexual harassment complaint could trigger a lengthy investigation of the institution — turning actual victims and the accused into pawns in the larger culture war.
Worse, the letter required schools to use the lowest possible standard of evidence (a mere “preponderance”) in deciding the fate of the accused. While not an official criminal proceeding, these campus tribunals often determined whether a student would be marked for life as a sexual predator — effectively denying him his rights to “life, liberty and property” without due process.
As K.C. Johnson and Stuart Taylor, authors of The Campus Rape Frenzy wrote on the Volokh Conspiracy blog last year:
The letter required universities to allow accusers to appeal not-guilty findings, a form of double jeopardy. It further told schools to accelerate their adjudications, with a recommended 60-day limit. And, perhaps most important, OCR strongly discouraged cross-examination of accusers, given the procedures that most universities employed.
— The path to Obama’s Dear Colleague Letter, Jan. 31, 2017
Perhaps most frighteningly, government publications began to lecture schools on what constitutes a healthy, mutually respectful sexual relationship. Bureaucrats this by redefining sexual harassment as a form of discrimination, but only when the act targets a member of a particular sex. Strangely, a bisexual who is an “equal opportunity” offender — targeting both men and women — does not fall under the purview of Title IX complaints.
Melnick notes that the OCR’s mandated “sea change,” coupled with the threat of losing federal funding, has given rise to a new bureaucracy of Title IX coordinators at every major university.
THE TRANSGENDER TRANSFORMATION AND RULE BY LETTER
The second questionable form of Obama-era administrative rule-making seems to have turned the intent of Title IX on its head. New guidelines redefined the word “sex” as it appears in the act to correspond to the gender identity of a student whose rights are being called into question. This legal maneuvering is particularly suspect since the term “gender identity” entered the lexicon as a way to distinguish one’s identity from their biological sex.
Morever, many Obama-era mandates (e.g., requiring colleges to allow biological males to use women’s locker rooms), not only opened the door for novel claims of harassment and discrimination, but took administrative lawmaking to new heights (or depths) of absurdity.
The Office of Civil Rights cannot reasonably resolve every discrimination and harassment issue in a sane and apolitical manner from its perch in Washington. President Trump has repealed the Obama guidelines, and Education Secretary Betsy DeVos has called for an end of “rule by letter.” Melnick sees this as a rare instance of sound policy and transparency from the Trump administration, but there is always a risk that it will merely flip the script and use the transgender issue to fire up the Republican base’s own culture warriors.
Here’s a preview of my take:
If Trump decides to take a page from Obama’s playbook, he might further polarize some of the most important civil rights concerns of the day. While some on the left have allowed the persecution of innocent men with dubious claims of a campus “rape culture,” others on the right have sometimes found a convenient scapegoat among individuals who don’t map neatly onto either biological sex.
No one is arguing that transgender individuals should be denied equal access to educational facilities, and there are valid civil rights concerns that must to be worked out on a case-by-case basis.
Whenever strings are attached to federal grants, there is erosion of the American system of federalism and policy experimentation at the state and local level. In this way, Title IX has been abused to impose a one-size-fits-all solution across the nation’s universities.
The federal government should leave room for different approaches to be tested, and OCR should focus on the basic of civil rights and clear cut cases of discrimination. The courts remain open to remedy situations where schools fail to render a fair decision.
For a full and nuanced perspective on the most important civil rights issues of the day, look no further than my show with Shep Melnick.
Transcript
Lessons from Title IX
Bob Zadek: Today’s topic is Title IX. At the end of this hour, you will understand so much of what is wrong with the top-down government we have, with the government in Washington, with the regulatory state, with the bullying in Washington, and you will learn the root of it all, which is the income tax. What is Title IX? Why do you care so much about it? To help us understand Title IX and the regulatory state and its bloated influence on life in America, I am proud to welcome to the show Shep Melnick, who is the Thomas P O’Neal Professor of American politics at Boston College. Shep has taught at Harvard and at Brandeis, and he is the author of The Transformation of Title IX. His studies focus on the intersection of law and politics. Shep, welcome to the show this morning.
Shep Melnick: Thanks so much for having me on.
The Roots of Title IX
Bob Zadek: Your book is The Transformation of Title IX. I’m going to start with two questions. Title IX of what, and the transformation from what to what? So first, what is title nine? Why do we care?
Shep Melnick: Title IX is one section of Omnibus Education Amendments passed in 1972. This was really a hodgepodge of changes in education laws. Title IX itself simply says that any educational institution that receives federal funds cannot discriminate on the basis of sex, and what that meant was left unclear. There was very little discussion of it in Congress at the time, and when President Nixon signed that legislation, he didn’t even notice the importance of Title IX, and nor did the New York Times who reviewed the passage of the legislation. So it is a very simple prohibition and very open ended, and we have been arguing about its meaning ever since.
Bob Zadek : An important word is the operative verb of “discrimination.” A recipient of federal financial assistance cannot “discriminate” under “any education program or activity.” So this is a small provision in a large education bill that simply says you can’t discriminate on the basis of sex. Well, that ought to have gotten a big shrug at the time, because everybody who read this in 1972 would say, “of course we can’t discriminate!” So, we start with benign legislation that states the obvious, and it says “discrimination based upon sex.”
Of course, we will learn during the show that the word “sex” becomes a very pernicious word in the context of Title IX. Okay, so if you are a school receiving federal funds you cannot discriminate. I would like to take a slight digression just for a moment. The reason this reception of federal funds is key, is that Congress lacked the power to affect the behavior of private schools in the country. Many of the colleges are of course private colleges. If the statute simply said that a private school can’t discriminate on the basis of sex, that might not be constitutional. Is that a fair guess as to why the reception of federal funds was written into the law?
Shep Melnick: That’s a really good question. Using the hook of federal funds certainly made it far less controversial, so that was an easy thing to add. If they had been more prescriptive and said that whether you receive federal funds or not, it doesn’t matter, then that would have been much more controversial. One thing that happened at same time that Title IX was passed was the Supreme Court was increasingly saying that discriminating on the basis of sex is unconstitutional. This was a big change in constitutional law. It is quite possible that if they had had a blanket prohibition that would have been ruled constitutional by the Supreme Court because constitutional law was changing so rapidly at that time.
But let me just add one caveat here. Most people don’t understand that Title IX does not apply to admissions to private undergraduate schools. So we have a lot of female only schools, and we have a couple of male only schools, and the statute does provide a number of areas in which the strict prohibition on sex discrimination does not apply. It raises the big issue of the way in which we view sex and race quite differently, because Title IX was based on the analogy to similar prohibitions on the racial discrimination in the Civil Rights Act, but we view sex and race discrimination as somewhat different.
Bob Zadek : You mentioned that the statute could have eliminated federal financial assistance and would have been perhaps more controversial, but the constitution doesn’t regulate the behavior of non-federal government, or state and local government. The constitution doesn’t regulate the behavior of private organizations such as a private college. I think the reason we have the link of receiving federal funds is that Congress has the power to not worry about the constitutionality, but just say we are simply telling you that you are not getting any money if you do not follow the constraints of Title IX.
So, the financial assistance is Congress using its power as a disperser of huge amounts of money to influence the behavior of organizations that otherwise are not regulated directly by the constitution. It’s like my parents saying, unless you mow the lawn, we have got to cut your allowance off. So, my parents are not signing a statute. They’re citing the fact that they have financial control over me. They have my dollar a week that they can withhold and therefore I have to do what they say. So Congress is using the economic power they have to bully organizations that are not directly regulated by the constitution to use this influence of that withholding funds to force private colleges to follow the constraints of Title IX.
Shep Melnick: One of the ironies is that they never withhold funds even though they threaten it. It is an empty threat.
Bob Zadek : At least not yet. Your book explains and complains about the transformation of Title IX. Title IX is one sentence. So into what did it transform?
Shep Melnick: That’s the key question. Title IX was originally designed to end institutional barriers to education by women. And in 1972 there were important barriers. Many programs explicitly prohibited women from being part of them. There was rampant sex discrimination in hiring in higher education. So there were real institutional barriers. Those barriers fell very rapidly. And today women are advancing education much more quickly than men. They are really outpacing men in almost all aspects of education. Once those doors of opportunity opened, women really flocked through. The transformation was to go from these institutional barriers to educational opportunity to trying to change stereotypes about sex and gender and sexuality in general, not just amongst students and faculty, but among the public at large. To try to reshape how all of us think about sexual stereotypes and sexuality. So that’s a pretty big change.
Bob Zadek : I should point out that how one thinks about gender identity has nothing to do with discrimination as used in the 1972 statute. So what you have said is that now that the hook is there, focusing on the very real problem of discrimination against women, although it says either sex, but it is women primarily of course, it morphs from a statute regulating or prohibiting discrimination to a statute trying to influence social mores and society in general, and general interaction amongst sexes and transgender issues. So, is the transformation from discrimination to societal influences — i.e. changing how people behave — is that the transformation that you focus on in your book?
Shep Melnick: That’s a pretty good description of it. The underlying argument is that if you really want to have educational equality, you have to change underlying stereotypes and the way people think about sex and sex differences. You have to get to the root causes and the root causes is based in people’s perceptions of these issues, so you have to change how people think about not just sexual stereotypes of what sex is generally, but also gender identity.
Title IX: The Orwellian Transformation
Bob Zadek : What you just said, as you explain profoundly and with great clarity in your book, is that the government wants to change how people think. The founders are moaning and groaning and rolling over in their collective graves. If one thing was sacred during the Founding Era it was freedom of conscious, which means freedom to believe whatever you choose to believe. And if the founders were clear about one principle, it was that people are free to believe and to think whatever they want, and it is not the business of government to affect what people think, even if it’s wrongheaded. Certainly society individually and collectively would have a duty to have people think in a way that is not harmful to society or harmful to each other, but that’s a societal issue. That’s a private, a nongovernmental concern, not a governmental concern. However, as you have explained twice in one sentence, the transformation is into something akin to thought police, which gives me shivers. How is its the business of government to affect what people think and how they behave towards each other?
Shep Melnick: Bob, I should say that, unlike you and many of your listeners, I am not a libertarian. I tend to be more of a Liberal Democrat. But, on this point, I fully agree with you. The founding principle of this country is limited government, which means, above all, that we limit the role of government to try to change behavior and people’s basic thinking about things. This is especially true when you have rules that are made by judges and administrators without really any support whatsoever from elected officials. What bothers me more than anything else about these regulations is how prescriptive they have become, how they have tried to — as guidelines often say, to change the culture — on the basis of a very thin legitimate legislative platform.
Bob Zadek : We start with a statute 1972, which is pretty benign. Nobody would disagree that it’s goal is quite laudatory and it was also pretty effective, as you pointed out a moment ago, in carrying out its goal. It substantially altered discrimination against women on college campuses. Perhaps it would have happened anyway. We’ll never know, nor do we really care. The fact is that the statute accomplished its goal. If this statute were passed today, there would be a shrug. We would ask why we are passing this statute? We don’t need it. There is no discrimination. Everybody would agree with that. I think for the most part there is no discrimination and it is not likely to return even if there was no statutes.
Bob Zadek : The statute has the withholding of substantial federal aid as its tool. This is a serious threat. Shep pointed out has never actually happened. But now the regulators — those faceless, nameless bureaucrats we talk so much about — they have discovered they can use the statute and the threat of withholding assistance to in effect take matters into their own hands. Explain to us and to our friends out there the evolution of these guidelines and regulations. How have the regulators used the power of withholding federal assistance to go well beyond the constraints of the statute?
Shep Melnick: This is a fascinating but complicated question. I’ll try to simplify it. The first thing to note is that there is not one set of actors and administrators, but two sets of actors and administrators, along with judges. Because it was quickly recognized that withholding federal funds was too politically dangerous and cumbersome to use in any but the most extreme circumstances, another enforcement mechanism was needed, and that was a so-called “private right of action,” which means that any private citizen can bring suit against the university or the school system to require them to follow TItle IX. The courts recognize that even though it was not in the statute. It became the fundamental enforcement mechanism of Title IX. That meant that there were these two sets of actors that would build upon each other, and I call this process “institutional leapfrogging.”
Institutional Leapfrogging: The Tyranny of the Bureaucratic State
The administrators would take one step, the courts would take another step, the agency would go beyond that, and each would say, “well, we are just following what the other one did.” So you have got these large sets of changes with little effort to ask what the long term consequences of all the changes were. And on top of that, rather than following the legally prescribed method of establishing rules and regulations by the Administrative Procedure Act, the office for civil rights and the Department of Education, OCR, bypassed that and started to use so-called “interpretations” and the now ubiquitous “dear colleague letters.” So they would just say, well “here is how we interpret the statute or regulations.” And to a large extent, the courts have deferred to those informal guidelines. So you have a whole series of incremental changes that add up to a huge change, and everyone denies that they are doing anything new. It is a uniquely opaque regulatory system.
Bob Zadek : The regulatory state is extraordinary if one thinks about it. So we have, let’s say, the Department of Education, but what I’m going to explain applies to almost every federal and state regulatory agency. We start with the agency which is hired, not elected, to supervise compliance with various statutes. So the regulators have to enforce and police a statute. An executive function. The regulators then promulgate rules — regulations — under that. In many cases the regulations go well beyond the statute itself, and the courts have given broad deference to the regulators.
So the regulators, in effect, pass legislation disguised as regulations. And then if you have a fight with the regulators, you litigate it, often through administrative law judges who are judges, but they are part of the agency itself. So the agency performs lawmaking functions, executive, functions, and judicial functions. And as James Madison observed importantly, “the accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one or few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Madison and others feared all power residing in the same body. That’s why we have the separation of powers. The regulatory state undoes, or combines, all three powers, so there is no separation of powers and thus you have the expansion of the regulatory state.
So, even though there are little or no claims of discrimination on college campuses, the statute doesn’t end. Title IX, that one sentence barring discrimination, has found its way into being used to examine things like sexual harassment and the related issue of harassment and gender identity. So what in the world does sexual harassment on college campuses, which is not so much institutional as a one-off event, have to do with discrimination?
Shep Melnick: There are two important caveats to add first. The first caveat is that this wasn’t done by administrators themselves. Courts are equally culpable and I’ll try to indicate that through the discussion of sexual harassment. The other thing I point out is that this was not administrators operating simply on their own. The sexual harassment initiative had very strong support from the White House and from the office of Vice President. So this was a presidential initiative as well as an administrative effort.
So, here is some background on the sexual harassment argument. It starts with a reasonable position that if there is such rampant sexual harassment in an office or on a campus, that makes it virtually impossible for a student — either male or female — to receive an education, then that is discriminatory.
If it is based on the sex of the student, then that is sexual discrimination.
If you take the extreme view, you can see the origin of this and it is not unreasonable. The problem is that when, as you pointed out, we’re talking not about action by the institution, but the action of hundreds and thousands and tens of thousands of faculty, students and staff. So the big question becomes what the responsibility of the institution is to police the behavior of all of these people. The Supreme Court in 1998 and 1999 came to a reasonable position on this. They said, if the school knows of this harassment and it is serious enough to prevent people from getting an education, then they have a responsibility for addressing it and stopping it. I don’t see anything wrong with that position, but the office for civil rights in 2011 to 2014 went way beyond that by saying the responsibility of the school is to eliminate and to cure all consequences of sexual harassment, which is a much expanded responsibility there. Really no school can adequately comply with this.
Bob Zadek : I agree with you. It is pretty reasonable at its core. It is impossible to object to that. However, that that requires schools to take on the role of law enforcement. We can divide between faculty-student on the one hand and student-student on the other. So, you would not require a university to police larceny when between students or to have its own police force to stop larceny and assault and battery. That is a police function and schools are not necessarily equipped to run a private police force. Often they do. Almost always they do, but they are not really good at it because that is a law enforcement function. Would a school have satisfied the mandates of eliminating sexual harassment if it simply aggressively called local law enforcement every time it happened? Would that have been enough? Would that have kept school out of being a private criminal justice system?
Shep Melnick: Those are two very useful distinctions. First, let us keep in mind that almost all of the worst abuses that have been identified by the me too movement have been misuses of official authority by employers or by faculty. There is clearly a big problem there and schools should have the responsibility for making sure that their employees do not discriminate by harassing, especially female students.
But you raised the bigger question which is the extent to which schools must police the behavior of fellow students. That is where most of the controversy on college campuses has arisen. I think a lot of the concern about sexual assault comes from the fact that most schools basically said that they are not going to police this at all. They decided to do away with parietals. They would have coed dorms. They would not be serious about drinking. So having done a way with all of those norms, now there is a lot of uncertainty about what is allowed and what is not. And so in an odd way, schools are being told to go in and re-establish norms about what is acceptable behavior and what isn’t in very private circumstances. That is a major undertaking and it is a strange thing for a small federal agency to be trying to determine what the norms of sexual behavior are among adolescents and young adults on campuses that are enormously different from one from the other.
Bob Zadek : So, if a school simply had a very efficient way of reporting crimes and of reporting student on student sexual harassment promptly to law enforcement, and it was very easy for a student to report alleged sexual harassment by calling law enforcement, in your opinion, would a school have discharged its responsibility under Title IX as interpreted by the OCR and by the Department of Education?
Shep Melnick: The answer to that is a clear no. That applies not only to the Obama era dear colleague letters, but also to the proposal just put forth by the Trump administration. Both sets of proposals require much more of colleges and universities and primary and elementary schools. The reason is because the definition of sexual harassment and sexual assault is much lower under the Title IX regulations than under most criminal statutes. Schools are required to police is a lot of behavior that would not qualify as criminal in almost any state.
Bob Zadek : So now we are getting to the heart of it. We are getting to the fact where we have this painfully subjective standard which is below the level of criminality. It is just bad behavior but it is not criminal. Bare in mind, the criminal statutes are pretty strong themselves and they basically capture almost all behavior that we would find objectionable. Why aren’t the criminal statutes sufficient? Why isn’t the cure for states — if they choose to do so — to make the criminal statutes conform to societal norms? What is special about the educational environment, which means that not only do you have to obey the law, but you have to, as a student, behave at an even higher level than what is required as ordinary people?
Shep Melnick: That is a good question but let me make a key distinction between what schools might want to do and what they should be federally mandated to do. I think it is entirely reasonable for schools to say that they have certain standards they apply to our students. They are an educational institution and want to educate people about what they consider to be acceptable activity. So, if at Brigham Young University they say you cannot have sex outside of marriage and they enforce that, that is their choice.
Boston college actually has a rule of no sex outside of marriage on campus. Of course they never ever enforce that. There could be norms of conduct that schools want to enforce. The question is whether those norms of conduct should be federally mandated such that they are the same for all universities, or whether schools should have some discretion of how to interpret what is acceptable and not acceptable behavior. What the Obama administration tried to do is establish very detailed rules about what is considered acceptable behavior. I think that they seriously overreached in that effort.
Bob Zadek : I hate to break it to you — you were very clear that you are not a libertarian — but you could sure fool me! You should be coming out, you are a libertarian.
Shep Melnick: believe in academic freedom and I really believe that the strength of the American higher education system is its diversity. So let universities establish a variety of standards, and then we would have a really vibrant market for choosing universities. The market works here.
Laws Cloaked As Letters
Bob Zadek : And the market will dictate if parents like the Brigham Young model, so be it, or if they like Oberlin college model, so be it. There’s a marketplace out there and both will probably survive because the market is quite huge.
I have made reference to the “dear colleague letters.” I first learned about dear colleague letters in 2011 when the Obama Administration wrote their famous, or, if you will, infamous, dear colleague letters about sexual harassment and the rape culture. So, just explain to our audience what a “dear college letter” is and how it is basically a statute disguised as an inter-office communication.
Shep Melnick: One form of rule making authorized by the statute itself is to issue a rule under the Administrative Procedures Act, that requires you to have a proposal, to make it public, to take comments and explain what you did, and ultimately it will be subject to judicial review. Most of the time in recent decades, the office for civil rights has not used that at all, but has merely issued a unilateral letter to all colleges, universities, primary, and secondary schools that receive federal funds and said, “dear colleague, this is how we interpret the statute and this is what you are required to do.” One of the things I love about the dear colleague letter is that they say, “if you have comments about this, give it to us now,” after they have issued the rule. This is just the opposite of what it should be. These are considered by the office of civil rights to be legally binding, so if you don’t comply, you are subject to enforcement action.
Very frequently the courts have deferred to the dear colleague letters in their interpretation of the statute. These letters can be very long and have upwards of 40 pages. Especially when they are combined with other things such as called “questions and answers.” It is an invasion of the Administrative Procedure Act and is a unilateral effort to try to say what the law is. The other thing that I find quite remarkable about these letters is that they all say “we don’t need to issue rules and regulations in the formal sense because there is nothing new here.” The 2011 dear colleague letter that you mentioned claimed there was nothing new in this letter. Meanwhile, the White House said this is a path-breaking policy. So clearly they want to have it both ways.
Bob Zadek :The dear colleague letter, as I said, is like an interoffice communication. It says, “dear colleague, we just want to share some thoughts with you. Here’s what we think the statute means. Here’s what we think the statute requires you to do or not do. And by the way, we are the paying agent and approve the checks you get, so you might care a little bit about what we think.” Any school who gets that is going to behave in accordance the dear colleague letter or else the funding is going to be cut off. It is sort of like the alleyway gun pointed at your head that demands your money or your life. It is not really a choice. However, the author of the letter doesn’t have any statutory authority to share what they think if it is at variance with the statute itself.
Shep Melnick: There is a dispute about the legal status of these letters. A couple of years ago, Senator Lamar Alexander asked Catherine Layman, who was then the head of OCR, whether these legally binding. He asked a couple of other assistant administrators of the Department of Education as well, and they said they were not legally binding. Catherine Layman said, however, that we consider this to be binding law that must be by all schools. She later said, “well, we don’t really consider them legally binding, we just expect everyone to comply with them.” I’m not sure what that difference is. So, basically if you do not comply, you are likely to be investigated and to have various sanctions imposed. To me, that is legally binding.
Bob Zadek : Title IX does not just deal with sexual discrimination. As I mentioned before, Title IX deals with the related concept of gender identity. Now, that mucks up everything quite a bit. How does gender identity and discrimination fit into this mix?
Shep Melnick: That’s the hottest topic these days. You have to start with the fact that there are some areas of education where we allow sex ,segregated facilities and programs most obviously with sports. So we say it would be unfair to women to require them to try out for men’s teams, so we have separate teams, and this allowed by the statute. We also allow, by the statute, separate facility of bathrooms, shower facilities, dormitories, and those things.
So then the question becomes how we should assign people to these sex segregated facilities? When Title IX was enacted in 1972, that seemed obvious. But today, we definitely have a third category of people called “transgender,” and the question becomes to which facility they have access. The obvious answer is that we do that on the basis of biological sex. Starting in 2016, the Obama Administration issued a series of directive saying that assignment to the sex-segregated facilities should be based on gender identity, which means people’s subjective understanding of whether they are male or female. These distinction should be made unrelated to biological sex.
The problem with that argument is that the statute says “sex,” not gender identity, and the term gender identity was created to distinguish it from biological sex. So in order to get to that understanding, you really have to play fast and loose with the reading of the words of the statute itself. But many courts have actually adopted that interpretation of the standard. So, we are at a place where both administrative agencies and courts are going to be arguing about what the meaning of the term “sex” is, and how it relates to gender identity.
Bob Zadek : You mentioned that colleges and universities are permitted to have separate sports programs because of the obvious physical differences between men and women. I wonder whether it is all that obvious. A lot of the battle on the issue of sexual discrimination is based upon the premise that men and women ought not be treated differently. Think back to the battle when women wanted to be given combat roles in the military or to be firefighters. So what would happen if a school, perhaps to save money, or perhaps to test the statute said, okay, we are going to have one sports program, not male and female sports programs. And if women can earn their way onto the varsity basketball team, they get to play, and if not, they don’t get to play. Would not having separate sports teams be itself a violation of the statute? That raise pretty interesting issues.
Shep Melnick: I agree completely. It would really raise interesting intellectual issues. But my guess is that no college would be willing to raise that issue in part because of the great accomplishment of Title IX, other than in eliminating some of those barriers to education in the 1970’s, was encouraging women to be more involved in sports. I think that has been a tremendous accomplishment. It is a symbolic accomplishment above all because it is not required by the act. So, if anyone is brave enough to challenge the strong support for women’s sports, I would welcome the intellectual debate. I don’t think that they would be very wise to do so.
Bob Zadek : We end our discussion embracing separate but equal. How interesting is that? Shep, we are running out of time. How can our friends out there follow your writing? Tell us about the next book you’re working on.
Shep Melnick: You can buy my book, Transformation of Title IX, by Brookings Press. I have an article in National Affairs that summarizes the book. I am now working on a larger project on the civil rights state as well as on race and ethnicity. I hope to get that done within a year. So there are lots of ways to learn more about my position on these issues.
LINKS
- The Transformation of Title IX Brookings Institution Press (2018)
- Education Next: Shep Melnick Archive
- Where Title IX Went Wrong: Review of “The Transformation of Title IX: Regulating Gender Equality in Education”, by Christina Hoff Summers
RELATED SHOWS
- Aren’t Men Entitled to Due Process on Campus?, with Cathy Young, February 2, 2014
- An Intellectual Discussion of Sexual Harassment with Richard Epstein, March 9, 2018
- The New Royal Prerogative: Philip Hamburger on Administrative Law, September 4, 2014
- Jonathan Haidt on *The Coddling of the American Mind*, September 8, 2018
- Sen. James Buckley on How to Save Congress from Itself July 26, 2015
