R. Shep Melnick, the Thomas P. O’Neill Professor of American Politics at Boston College and co-chair of Harvard’s Program on Constitutional Government, has produced important books on how courts have expanded welfare rights and environmental regulations, in the process largely removing elected policymakers from policymaking, undermining democratic processes such as bargaining.1 Although liberal, Melnick’s willingness to go where evidence leads often appeals to conservatives. This is certainly the case with Melnick’s latest book, The Transformation of Title IX: Regulating Gender Equality in Education. Unlike his prior books from Brookings Institution Press, however, this book has won no awards and has received little notice save from a few conservative outlets. This is lamentable, because The Transformation of Title IX offers a comprehensive history of Title IX policy with important implications for ongoing debates, or what should be ongoing debates rather than twitter wars. This is a book that all social scientists and policymakers should read.
From Innocuous Beginnings to Expansive Powers
The passage of the Title IX Education Amendments in 1972 met no opposition. Even a half-century ago most agreed with language stating that “[n]o 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.” No one anticipated that Title IX would eventually lead the national government to dictate athletic budgets, courtship rules, and gender choice policies. Yet as formal educational barriers for women fell, regulators shifted focus from overt exclusion to subtle matters which few consider discriminatory. Increasingly, judicial and bureaucratic goals moved from providing equal opportunity to changing beliefs: “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.” (6) These goals fit textbook definitions of social engineering, far exceeding regulations in supposedly big government Europe.
Melnick employs several themes. Since 1964 the administrative state has through interlocking statutes, administrative regulations, and court decisions constructed civil rights rules affecting nearly all organizations, reinforced by supportive interest groups and reporters. Courts and agencies in de facto alliances employed “institutional leapfrogging,” each taking steps beyond the other, using particular cases to expand regulation without seeming to innovate. Likewise the U.S. Office of Civil Rights (OCR) within the U.S. Department of Education built alliances inside higher education among natural allies like psychologists and coaches of women’s teams, and fostered the growth of higher education’s diversity bureaucracies—the latter all too familiar to Academic Questions readers. Further, by using the language of rights, OCR frames issues as moral absolutes, eschewing human complexity. This groupthink has proven antithetical to democratic compromise, and to constitutional rights such as free speech and due process. OCR is entirely leftist, focusing on differential outcomes rather than discriminatory treatment, and on developing bureaucracies to remake whole cultures rather than resolve individual complaints.
As Melnick points out, OCR is an unusually nontransparent agency, seldom making findings public, evading Freedom of Information Act requests, and most importantly, circumventing the 1946 Administrative Procedures Act (APA). Passed in reaction to the New Deal expansion of government, APA dictates transparency in administrative rulemaking, with public comment periods allowing input. This democratic process pushes bureaucrats to consider different values, outside expertise, and the costs of new rules. After 1975 OCR largely evaded APA, replacing rulemaking with “Dear Colleague Letters” (DCLs) clarifying existing rules to guide higher education bureaucracies. Whether DCLs have the force of law is unclear, but in practice judges usually defer to them as representing agency expertise. Colleges normally follow DCLs rather than risk costly litigation or OCR investigations. The Obama administration issued more DCLs (34) than all previous administrations combined. (73)
Remaking College Athletics (and Undermining College Academics)
Before recent applications to sexual harassment and transgenderism, Title IX mainly affected sports. Congress intended the law to address academics and gave little thought to athletics, an incredible irony considering Title Nine sports apparel, the only clothing line named for a federal statute. This is one area where both Title IX skeptics and backers (including those who question the very existence of sex differences in other realms) back segregation. Men are, by and large, faster and stronger, rendering coed sports extremely limiting for women. Given the outsized role of college football, political considerations preclude equalizing spending on men’s and women’s athletics. Accordingly, Title IX backers formed de facto alliances with athletic directors and (male) revenue sports, chiefly football, to insist on equal participation.
Though the trend began earlier, Title IX likely increased the numbers of women playing varsity sports, and they now constitute 43 percent of the total. (86-87) This had costs. Rather than foster discussions about the relative merits of athletics and academics, Title IX increased athletic spending at the expense of academics and student pocketbooks. Attempts to reduce spending on women’s sports, even when men’s teams faced greater cuts, met legal challenges, at which point college presidents nearly always backed down.
Brown University President Vartan Gregorian was a rare exception. Progressive Brown had been a leader in women’s varsity athletic opportunities. Yet to cope with a budget deficit, in 1991 Gregorian imposed a 5 percent cut on each university unit, including women’s athletics. Brown alumna linked gymnasts and volleyball players with activist attorneys, who filed Cohen v. Brown. The case dragged on for six expensive years before the U.S. Supreme Court denied certiorari for Brown’s last appeal. In congressional testimony Gregorian asked how a university could be “free to cut libraries and academic departments, but not athletics.” (112) In contrast, bureaucrats and judges believed that less female participation in sports reflected outmoded stereotypes, reinforced by liberal Brown’s presumably sexist recruitment and admissions. Courts dismissed Brown’s evidence that for students applying, accepted, and attending, men showed more interest in sports than women. Later efforts to use empirical evidence by the George W. Bush administration arising from other court cases met similar fates. Losing the case despite Gregorian’s best efforts signaled to higher education that any reduction in women’s athletics posed financial and reputational risks. When it did not increase athletic spending, Title IX led schools to slash politically weak men’s sports like wrestling and diving, turning away aspiring men while dragooning marginally interested women. In fairness, polls showed bipartisan public approval for cutting men’s athletic spending to increase opportunities for women. (7-9, 119-120).
Title IX killed the Association for Intercollegiate Athletics for Women, a more academic female counterpart to the NCAA. Contrasting NCAA, AIAW forbade athletic scholarships, limited recruiting, scheduled games so as not to interfere with studying, and held inclusive tournaments rather than elite playoffs.2 But by the early 1980s the NCAA lured away most AIAW members, destroying a balanced model for varsity sports. Women came under pressure to win at all costs, just like the men. Athletic spending rose and athletics became more distinct from academics, and more corrupt. A commission examining Title IX included only one college president, Penn State’s Graham Spanier (later indicted on misdemeanor charges related to the Jerry Sandusky scandal).
The Obama OCR expanded Title IX with systematic reviews of both college and high school athletic programs, ordering equivalent spending on facilities and coaches, ballooning athletic budgets, and in one case forcing action to correct a mere 2.45 percent participation gap, a figure within statistical margins of error.
Title IX Gets Intimate
While feminist activists like Catherine MacKinnon had long raised the issue, only in the late 1990s did the U.S. Supreme Court establish Title IX liability standards for sexual harassment by teachers and peers, with thresholds for mandating remedies that include school knowledge of the behavior and that it was objectively offensive. The Clinton administration OCR issued “rules” (by the usual DCLs) going far beyond these limits, rules the Bush administration did not implement. Yet Bush appointees eschewed new rulemaking, likely fearing to enrage activists, reporters, and OCR bureaucrats.
The Obama administration had more ambitious goals and a friendly political environment. In 2009 the Center for Public Integrity partnered with National Public Radio to produce an award winning report and radio series lambasting how colleges handle sexual assault cases, just as victims’ groups organized on social media. Increasingly no politician wanted to seem soft on sexual assault. In the 2011-14 period the Obama administration worked to broaden definitions of sexual harassment to include even speech not aimed at anyone in particular, not meant to cause harm, and only subjectively offensive. Sexual stereotyping, a broad term which might include objective social research findings, could count.3 In 2014 the administration issued a report stating categorically that one in five college women is sexually assaulted, a figure soon questioned by the administration’s own Bureau of Justice Statistics, which measured the crime as nearly 90 percent less frequent. As Matthew Stewart observed in Academic Questions, a 20 percent sexual assault rate would mean that American female college students face greater dangers than women living in the Democratic Republic of the Congo during its civil wars, when it was “the rape capital of the world.”4 In fairness, as Melnick explains, measuring campus sexual assault is daunting. Further, some colleges really do cover up the crime, particularly when committed by powerful people like athletes and coaches.
Committed ideologically and politically to a belief in pervasive sexual assault on campus, the Obama OCR began investigations of fifty-five colleges, a number which soon increased seven-fold. OCR investigations cost colleges enormous time and money: some presidents claimed to spend half their time responding. Campus administrators reported pressure from OCR to develop processes presuming guilt rather than innocence. Colleges complied. Particularly troubling were single investigator models denying the right of the accused to question accusers, or even to hear charges in advance. Accusers could appeal decisions, but the accused could not. When students punished for alleged sexual assault began suing, colleges often lost, something which had never happened before. Rules prohibiting unwelcome verbal sexual advances run afoul of free speech rights. Rules defining “sexual violence” that included such things as discounting a partner’s feelings before or during sex or criticizing their sexual technique, such as existed at the University of Michigan, seem unenforceable, dangerous, and silly.
OCR also made colleges responsible for questionable behavior off campus by non-school employees. All this forced colleges to expand Title IX offices to undertake required investigations and training to protect women from the assumed 20 percent chance of assault. Remedies included extensive training to change “campus rape culture,” even though little evidence finds other forms of diversity training effective.5
Title IX and Trans Students
Melnick next outlines emergent transgender rights issues, which offer tests of two longtime Title IX assumptions: that the original legislation is dynamic so it can apply to new issues, and that its principle purpose is to dismantle all forms of sex stereotyping. Melnick notes obvious distinctions between gender identity and other protected classes. Most students are young; some experiment with gender identities. Second, while certain employers have excluded transgender employees, no public schools or colleges have excluded transgender students. Led by major corporations, support for transgender individuals has grown quickly. Educators have largely taken a pragmatic, case by case approach, balancing deference to biological sex, as in the briefly enacted North Carolina “bathroom bill,” and Obama OCR guidance to consider only a student’s self-proclaimed identity.
As usual, OCR evaded APA. Instead, in January 2015 an acting deputy assistant secretary responded with a letter answering an e-mail inquiry from a transgender advocate. This letter clarified that schools must treat students according to their chosen gender identity. While the letter was never made public, a few months later in G.G. v. Gloucester School Board the Fourth Circuit deferred to it as representing OCR’s expertise. Using institutional leapfrogging, the next month OCR and the Department of Justice used the court case to justify its DCL on the matter. The DCL said trans students must be treated in accord with their gender identity in manifold situations, including assignment to athletic teams. This enabled biological males to win girls’ state championships in wrestling (Texas) and track (Connecticut).6 Uniquely, the U.S. Supreme Court stayed the ruling and a federal judge later found that OCR had violated both APA and the clear meaning of statutory language. The new Trump administration then withdrew the DCL. The saga continues.
Possible Title IX Retrenchment?
Melnick concludes with hopes for reform of Obama administration overreach, though acknowledging that many will cast reformers as sexist. Many on the left support reform, giving the project respectability. Colleges have incentives to change, so long as they keep losing when students convicted in higher education’s kangaroo courts seek redress in real courts. Melnick advises that revising Title IX rules can only succeed by following APA, seeking objective data, and inviting public input and debate (261): This means they must explain how and why they are modifying existing policy, not claim disingenuously to be doing nothing new. They should show respect for Supreme Court interpretations of civil rights law, rather than devise clever end runs around them. They should demonstrate renewed fidelity to due process, freedom of speech, local self-government, and academic freedom—fundamental elements of liberal, constitutional democracy.
This means they must explain how and why they are modifying existing policy, not claim disingenuously to be doing nothing new. They should show respect for Supreme Court interpretations of civil rights law, rather than devise clever end runs around them. They should demonstrate renewed fidelity to due process, freedom of speech, local self-government, and academic freedom—fundamental elements of liberal, constitutional democracy.
In a follow-up essay for the Brookings Institution’s Chalkboard, Melnick praised Education Secretary DeVos for doing all these things in her proposed (and since adopted) modifications of Title IX sexual harassment rules, which would end single investigator models, assure basic rights for the accused, and limit federally imposed training regimes.
Reviews for Melnick’s important book from scholarly journals have been sparse, and the two that are available were hostile. This reflects the difficulty of modifying even those parts of the administrative state which courts have found behaving unconstitutionally. If academia and the media that is supposed to hold it accountable are too fragile to allow competing perspectives, then neither science nor democracy can function: only unconstrained power remains.