The Ghost of Title IX's Past

Marina Ziemnick

CounterCurrent: Week of 12/18

It’s been fifty years since Congress passed Title IX of the Education Amendments of 1972, the infamous sex discrimination law that still haunts the halls of America’s colleges and universities. Originally intended to provide women with equal opportunities in education, the legislation sought to solve a problem that was already fading away—and the bureaucratic nightmare it created is now used to persecute innocent students and force conformity to radical gender ideology.

The past decade of Title IX escapades has been especially disastrous, in large part thanks to Catherine Lhamon, two-time assistant secretary for civil rights at the Education Department. During her first stint in the position, under the Obama administration, Lhamon enforced the dictates of the infamous Dear Colleague letters, which vastly expanded the scope of Title IX investigations and erased vital due process protections for the accused. Although the Obama-era rules were briefly rescinded by Education Secretary Betsy DeVos during the Trump administration, Lhamon was reappointed shortly after Biden took office and immediately began to reverse DeVos’s reforms. The latest proposed Title IX rule would both finalize this reversal and redefine “sex” to include sexual orientation, expanding the reach of Title IX even further.

But this is not just a story of a good law gone wrong. As National Association of Scholars Policy Director and Title IX expert Teresa Manning argues in this week’s featured article, Title IX’s problems have grown over time, but they were there from the beginning. The mandate of Title IX—that no one should be subject to discrimination on the basis of sex in connection to a federally funded education program—was simple. But the statute’s interpretation and implementation was left up to the whims of the executive branch. Within just a few years of Title IX’s enactment, it became clear that the mandate functioned as little more than a blank check for the federal government to enact its own agenda within American higher education.

The first major reinterpretation of Title IX extended the statute to “requir[e] schools to spend the same amount of money on women’s sports as on men’s sports, regardless of disparities in interest.” Although Title IX’s original advocates had hardly seen athletics as a primary focus of the legislation, the emphasis on sports lasted for several decades. Then, in the 1990s, the attention turned suddenly to the arbitration of subjective claims of “hostile environments” and “unwelcome conduct.” Before long, Title IX had transformed into a “lawless system of coercion that tramples the basic rights of individuals and punishes dissent.”

According to Manning, the only way to reverse this damage is to repeal Title IX altogether. She writes:

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. … The only way to dismantle this perversion of justice and debasement of our educational institutions is to repeal Title IX.

To leave Title IX in place is to accept the never-ending cycle of expansion and revision in which the due process rights of the accused are left in the hands of power-hungry bureaucrats. Rather than hold out hope that the next reform of Title IX will be the one that sticks, we must acknowledge that the statute has been flawed from the beginning and work to repeal it once and for all.

Until next week.

P. S. If you’re looking for something to do over the holidays, consider checking out Civics Fundamentals, a new civics education program created by Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit. Civics Fundamentals is a “free, standards-aligned course based upon the naturalization test for would-be citizens [that] helps all learners develop the foundational civics knowledge that every American should have.”

CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications Associate Marina Ziemnick. To subscribe, update your email preferences here.

Image: Steinar Engeland, Public Domain

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