The transformation of Title IX
By: R. Shep Melnick
The following is an excerpt from R. Shep Melnick’s new book, “The Transformation of Title IX: Regulating Gender Equality in Education”. If you would like to read more about the history of Title IX and how its application has evolved over the years, the book is available for purchase from the Brookings Insitution Press.
At the heart of Title IX lies this simple prohibition: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving Federal financial assistance.” Since every public elementary, middle, and high school in the country and virtually every college and university — private as well as public — receives federal money, these thousands of institutions are all subject to the rules established by the courts and by the Department of Education’s Office for Civil Rights (OCR) under Title IX. Although Title IX has long been associated in the public mind primarily with intercollegiate athletics, it covers all aspects of education, from English and math courses to sex education and intramural sports, from schools’ treatment of pregnant students to first-graders’ interaction on the playground, from sexual relations between college students to the pronouns used by transgender students. Over the past half century, judges and administrators have produced hundreds of pages of rules, guidelines, and interpretations to explain what educational institutions must do to stay on what one judge described as the “sunny side” of Title IX.
Despite the stunning changes described above, Title IX has become more controversial than ever. Starting in 2011 the Obama administration issued detailed and demanding rules on what schools must do to combat sexual violence and other forms of sexual harassment. In 2016 it announced guidelines — soon revoked by the Trump administration — on the rights of transgender students. These Title IX initiatives were part of the Obama administration’s We Can’t Wait campaign. “We can’t wait for an increasingly dysfunctional Congress to do its job,” the president told a crowd in Nevada. “When they won’t act, I will.” Not surprisingly, this drew a heated response from the Republican Party. Its 2016 platform devoted a separate section to Title IX, charging that the original purpose of Title IX had been perverted “by bureaucrats — and by the current President of the United States — to impose a social and cultural revolution upon the American people.” A year later Secretary of Education Betsy DeVos announced that her department would review and revise the controversial guidelines on sexual harassment and assault issued during the Obama years.
Title IX is both a powerful symbol of our broad national commitment to gender equality in education and a complex, controversial regulatory regime. Most of the advances in opportunities for female students occurred not because the law demanded them, but because our culture had profoundly shifted. In the late 1960s and early 1970s — before Title IX was enacted or enforced — the doors of educational opportunity began to swing open for women, and they quickly rushed through. Colleges and universities that had previously accepted only men started to admit women, including Yale, Princeton, Johns Hopkins, the University of Virginia, Williams, Bowdoin, Brown, Dartmouth, and Duke. Despite the fact that Title IX does not apply to admissions policy at private undergraduate schools, there are almost no all-male colleges left in the United States.
Title IX was itself the product of this cultural shift. It passed with little debate in 1972 because no one was left to defend (at least in public) practices that limited the educational and employment opportunities of women. In that year both houses of Congress also approved by wide margins the Equal Rights Amendment (ERA) to the Constitution, and sent it to the states for what at the time looked like quick ratification. As Congresswoman Bella Abzug (D-N.Y.) put it, “1972 was a watershed year. We put sex discrimination provisions into everything. There was no opposition. Who’d be against equal rights for women?” Birch Bayh, the primary sponsor of both the ERA and Title IX in the Senate, explained, “Once you get by the ERA, Title IX is a piece of cake.” The previous year the Supreme Court had for the first time ruled that a sex-based classification violated the Equal Protection clause of the Fourteenth Amendment. Two years later the Court suggested that gender-based classifications might be subject to the “strict scrutiny” previously reserved for judging racial classifications. In light of these changes, passage of Title IX seemed inconsequential. President Nixon did not even mention the mandate when he signed the omnibus legislation that contained it, nor was it covered in the next day’s New York Times.
In fact, DiPrete and Buchmann’s data show that there is hardly a country in the developed world that has not experienced this remarkable cultural transformation. The “reversal from a male advantage to a female advantage in educational attainment,” they conclude, “has unfolded not only in the United States but also in most industrialized societies.” Hanna Rosin, author of the provocatively titled The End of Men and the Rise of Women, claims that “women’s dominance on college campuses is possibly the strangest and most profound change of the century, even more so because it is unfolding in a similar way pretty much all over the world.” Few of these countries have a Title IX equivalent.
Initially this made the job of enforcing Title IX far easier than enforcing prohibitions of racial discrimination. Nowhere did enraged alumni of men’s colleges stand in the doorway of the admissions office vowing, “Gender Segregation Now, Gender Segregation Forever.” Instead they flooded admissions offices with requests for interviews for their daughters. Despite the frequency with which sex discrimination and racial discrimination are equated (a central theme of subsequent chapters), the differences are huge and obvious.
Because so many barriers to educational opportunity for women fell so quickly in the 1960s and 1970s, the focus of the regulatory regime shifted from overt exclusion and discrimination to more subtle educational practices. Federal regulators paid less and less attention to what goes on in the classroom, and more attention to what happens on the playing fields, in the bedroom, and in restrooms and locker rooms. Their focus shifted from the policies and practices of educational institutions to the beliefs of students and their teachers. No longer was the goal simply to provide equal opportunity to female students. Now it was to break down a wide array of stereotypes — those held by women as well as men; those common outside schools as well as inside; and those related to the meaning of masculinity, femininity, sexual orientation, and gender identity. In 1972 few would have predicted that sports, sexual harassment, and transgender rights would become the major elements of Title IX regulation. Indeed, it took OCR nearly a quarter of a century to issue its first regulations on sexual harassment, and two decades more to announce guidelines on transgender rights. Certainly no one who voted for Title IX in 1972 thought that OCR would eventually write rules allowing students to choose for themselves whether to be treated as male or female.
This book traces the slow transformation of Title IX from its original focus on ending exclusionary institutional practices to its current emphasis on deconstructing stereotypes about sex and gender. Much of it is devoted to understanding Title IX policy on athletics (part II) and sexual harassment (part III). The shorter transgender story is examined in the penultimate chapter. Parts II and III both begin with a discussion of the issues addressed by regulators (chapter 5 on athletics, chapter 9 on sexual harassment), and then offer a detailed look at the evolution of regulatory policy in OCR and the courts. These stories are long and complicated. Policymaking has usually occurred in fits and starts (to use the title of chapter 6), featuring incremental expansion and what I describe as institutional “leapfrogging.” Such complexity and incrementalism often make the story hard to follow, but are essential elements of the politics of Title IX. They hide the significance of policy innovations not just from regulated institutions and the public, but at times from the regulators themselves.
Part I of the book provides the context for these detailed case studies by presenting an overview of the broader civil rights state (chapter 2), explaining the key features of Title IX (chapter 3), and offering a first look at the Department of Education’s Office for Civil Rights (chapter 4). The final two chapters of the book examine the logic behind the expansion of Title IX regulation and the prospects for significant retrenchment in coming years.
