What is Title IX?
Why is Title IX controversial?
Why should Title IX concern NAS members?
Where does Title IX stand now?
What can or should NAS members do about Title IX?
What news can we expect in the coming weeks or months?
What is Title IX?
Title IX refers to the 1972 Educational Amendments to the federal Higher Education Act of 1965. Title IX prohibits discrimination based on sex at schools receiving federal funds. Such schools include colleges, universities and also many secondary schools (high schools). It 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.
Why is Title IX controversial?
Originally uncontroversial. Title IX was not originally controversial. It was well supported at the time it was enacted and was understood to be simply a guarantee that women should have the same educational opportunities as men. Courts confirmed this understanding by interpreting Title IX as protecting educational access.1
The controversy started with athletics. Title IX became controversial later: During the Clinton Administration, Title IX was interpreted by federal agencies (such as the Office of Civil Rights or “OCR” in the Education Department) to mean proportional funding for college athletics - that is, schools receiving federal funds were required to allocate financial resources to female athletics in proportion to their numbers on campus, instead of in proportion to the number of females participating in sports. Since female students already outnumbered male students, this new proportionality standard resulted in the defunding of many male sports teams – wrestling, baseball, swimming – and the unprecedented proliferation of female sports teams – lacrosse, volleyball, soccer. (In many instances, male football teams consumed inordinate resources, including scholarship money, leaving less for other male athletic programs.)
The controversy escalated when sexual assault was said to be discrimination. In 2011 the OCR under President Obama again caused controversy when it announced in a Dear Colleague Letter (“DCL”) that sexual violence was a form of sex discrimination prohibited by Title IX. That announcement, now referred to simply as “the 2011 DCL,” tasked college Title IX offices with finding and punishing sexual violence or lose federal funds. As a result, college administrators with no experience handling accusations of serious – even criminal - misconduct began acting as police, judge and jury in the politically charged area of sexual assault.2
These controversies represent administrative overreach, not law. In both the Clinton and Obama-era directives, Title IX policy changes were neither by law nor by regulation but instead were advanced in Departmental correspondence, also called “sub-regulatory guidance.” Such initiatives are controversial in and of themselves as they have the trappings of law without actually having been enacted as law by Congress or by an agency via the rule-making process.
Due process protections eroded or absent. Just as concerning, neither the 2011 DCL nor the campus officials acting pursuant to it provided procedural protections to students accused of sexual misconduct such as the presumption of innocence, the right to know and respond to complaints, the right to confront witnesses and accusers, and the right to impartial decision-makers to resolve allegations.
Protections such as these are basic rights in the American justice system; they are referred to as due process of law. They are often called guarantees of fundamental fairness.
In campus Title IX administration, however, such due process rights were largely cast aside in favor of support for those making sexual assault accusations and those wanting to find and punish sexual violence on campus.
Campus kangaroo courts, then lawsuits. Soon after the 2011 DCL, stories of kangaroo court experiences surfaced: Male students reported being summarily ejected from campus based on unproven complaints with no opportunity to respond;3 some recounted that Title IX administrators both investigated and adjudicated allegations (a due process red flag since such roles should be separate) who then found guilt with comments such as, “I bet you do this [assault girls] all the time.”4 Others were subject to complaints about incidents years earlier or subject to gag orders prohibiting them from discussing allegations, or defenses to them, even with family or counsel.
Female students often felt similarly shortchanged: Accusations against star athletes, for example, were allegedly processed more slowly and ended with lighter punishments.
Unsurprisingly, many students and their families became angry with these quasi-criminal tribunals, which seemed to operate lawlessly but with real power: Consequences for those “found responsible” include suspension, expulsion and permanent marks on an academic record. They began to sue in real courts - to date almost 500 lawsuits have been filed - and often prevailed by proving either due process violations, or conduct code violations, or even Title IX violations, showing that the Title IX process itself constituted discrimination against male students on the basis of their sex!
Why should Title IX concern NAS members?
Title IX gives destructive feminist ideology real power over accused students, usually male. Title IX is an area of concern for NAS because Title IX administration, like much of academia today, is dominated by feminist, ideological thinking, responsible for so much of today’s talk of “toxic masculinity.” However, unlike much of academia, the Title IX office has direct power to hurt targeted students. This includes subjecting them to a lawless, quasi-legal process, often instigated by Title IX officers themselves and therefore with a pre-determined outcome; and also punishing them, often arbitrarily, with real damage to reputation as well as to educational and professional careers.
Title IX is too often political correctness – feminist anger at “toxic masculinity” – run amok.
Title IX is seeping into the justice system. Title IX poses risks also outside of campus: Due process denial is seeping into other types of adjudication – not only student conduct hearings but also into the legal profession. For example, many campus nondiscrimination policies utilize the concept of “affirmative consent” when evaluating sexual assault complaints. This concept imposes a legal obligation, mostly on men, to obtain explicit, verbal consent at every stage of sexual intimacy or face the risk of rape charges. This standard inverts the presumption of innocence and has been rejected by most lawyers within the American Bar Association (and especially criminal defense attorneys) but continues to be proposed and advocated there as the new norm for criminal proceedings.
Title IX’s promotion of “hook-up culture” endangers students, especially women. Further, visits to Title IX offices show a deep commitment to sexual promiscuity: Sex-on-demand and abortion-on-demand are all promoted in brochures, pamphlets and condom distribution programs as a way of saying: “Women, just like men, can also have sex without consequences – equal opportunity love ‘em and leave em …”
This mentality is embodied in the term “hook up culture,” and includes the idea, expressed by one Title IX staff member, of “healthy hook ups”- transient and numerous sexual encounters as a healthy way to live.
This, of course, is both false and dangerously misleading to young people and especially to young women. It is precisely the hook-up culture that is giving rise not only to sexual misconduct allegations – including the phenomenon of regretted sex – but also putting students at risk of disease (sexually transmitted infections or STIs), depression, and abortion. All of these problems disproportionately plague women. A good resource on this point is the book Unprotected by Dr. Miriam Grossman.
The arsonist in the firehouse. The normalization and promotion of sex-on-demand by Title IX offices seem to be the phenomenon of the arsonist in the firehouse: Title IX staff help create the fires they claim to put out.
So-called prevention programs ignore the role of alcohol in sexual assault cases in favor of political marches and activities. What’s more, even though Title IX staff recognize the role of alcohol in “over 95% of sexual assault cases” (in the words of one Title IX Coordinator), the so-called prevention programs sponsored by Title IX offices mostly ignore the role of alcohol – or make this subject an optional component – and focus instead on political activism such as women’s marches and Take Back the Night campaigns.5
In short, the prevailing Title IX ideology endangers students – but especially female students.
By teaching sexual indulgence and victimization, Title IX robs students of real freedom. Finally, the hook-up culture that results in so many Title IX complaints (and therefore rationalizes Title IX administrator jobs) also teaches self-indulgence and instant gratification instead of self-restraint and self- discipline. It is the latter, however, that allows students to achieve both academic and professional success and also, ultimately, true freedom enabling a life of the mind and virtuous citizenship – the proper goals of higher education.
Where does Title IX stand now?
2011 DCL rescinded in 2017; new regulations proposed in 2018. In September of 2017, President Trump’s Secretary of Education, Betsy DeVos rescinded the 2011 DCL and in November of 2018, new regulations implementing Title IX were proposed; public comment on those regulations closed in early 2019. The Office of Management and Budget also received comments; those meetings conclude in April of 2020.
New regulations expected in 2020. The new regulations have not yet been formally issued; they are expected to be released some time later this year.
New regulations should restore due process. The new regulations go a long way toward restoring due process protections and clarifying the Title IX obligations of schools receiving federal funds (called “recipients” or “recipient schools”). For example, the proposed regulations require schools: 1) to presume the innocence of those accused; 2) to give accused students the opportunity to learn the specifics of allegations and to respond; and 3) to hold live hearings at the college level, with the opportunity to cross-examine witnesses and accusers.
The proposed regulations also require a more objective definition of sexual misconduct that qualifies as sexual discrimination under Title IX, including that any conduct complained of result in denied access to educational opportunities.
What can or should NAS members do about Title IX?
Title IX is broken. The hundreds of successful lawsuits against campus Title IX offices show that the current Title IX regime is broken. NAS members should be ready to point this out.
Secretary DeVos is trying to fix it. The effort to fix this broken system should also be commended and statements to support the Trump Administration, and Secretary DeVoss in particular, are encouraged.
A teaching moment? Time for a serious conversation about due process and sexual ethics. On campus, Title IX conversations actually present a teaching moment: At issue are two areas of importance both for young people and for the country: First is the rule of law and the critical role of due process protections in any sound legal system involving accusers and those accused; second, is the matter of sexual ethics and the obligations and rights of both men and women when socializing or dating.
Hopefully, discussions can go beyond shallow name-calling and ideology to arrive at a greater understanding and appreciation of both legal and social norms.
What news can we expect in the coming weeks or months?
Lawsuits over new regulations. Groups hostile to the Trump Administration and also invested in the status quo, both ideologically and financially, will certainly challenge the new regulations in court.
Support Equity Projects and point out Title IX violations against men. While public attention is often focused on sexual misconduct toward women, the reality is that most sex discrimination on campus today is against men: For many years female students and graduates have outnumbered males; and yet schools continue to sponsor illegal, single-sex initiatives for women-only – scholarships, faculty awards, summer camps, business programs, and even women’s lounges or women-only gym hours. These all violate Title IX! The nonprofit group SAVE (Stop Abusive and Violent Environments) has started an Equity Project to call these Title IX violations to the attention of the Department of Education and University of Michigan Professor Mark Perry has also been active in filing complaints of this nature with regional Title IX offices. They both need our support.
MATERIALS / TOOL KIT:
FROM CAMPUS TO KAVANAUGH
OMB REMARKS
ABA AFFIRMATIVE CONSENT COMMENT
1 This issue of access is central to Title IX analysis: According to the United States Supreme Court, conduct is prohibited by Title IX only if it denies a person access to educational opportunity. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Many schools ignore this requirement, however, and use Title IX to proscribe behavior unrelated to educational access.
2 The DCL did not focus on access as courts required. Instead, it defined sexual harassment as “unwelcome conduct of a sexual nature,” an obviously subjective – even arbitrary – standard, and announced that a “hostile environment” violates Title IX if it interferes with or limits a student’s ability to participate in a school’s program. The objective standard of “denied access” was therefore replaced with the subjective standard of interfering with or limiting access. (Many schools continue to use the DCL definition.)
3 https://abcnews.go.com/Politics/student-falsely-accused-sexual-harassment-denied-due-process/story?id=58592962
4 https://www.insidehighered.com/news/2018/02/12/title-ix-lawsuit-against-miami-university-has-new-traction
5 https://universitypolicy.gmu.edu/wp-content/uploads/2013/01/Policy-1202-Appendix-E-Training-Prevention-and-Awareness-Programs-12.17.pdf
