But how did we get into such a maze of conflicting guidance and enforcement? Wasn’t Title IX was just supposed to be about ensuring female students’ ability to participate in sports?
A lot of people think so, especially Gen-Xers who left academia upon graduation. It’s the bulk of how it was used throughout most of its existence, and pretty much all of our post-secondary education, but that was not its original purpose.
Title IX of the Education Amendments of 1972 was passed in order to amend previous acts affecting the public education system to bar educational institutions from discriminating against students or student applicants on the basis of sex.
The law was originally proposed as a measure to end discriminatory quotas that limited female college admissions and female participation in certain areas of study. It stipulates that “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.” Most of the text of the original law describes exceptions to the rule, such as for military institutions, fraternities and sororities, and religious institutions. It does not describe an exception specifically for when the sex discriminated against is “male.”
Expansion of Title IX’s original application into today’s mess didn’t all occur at once, nor did it all occur through legislation. In fact, federal departments and agencies have a kind of backdoor process for expanding their reach with little to no legislative oversight. The Congressional Review act of 1996 does require new departmental regulations and policies to be submitted to congress. However, these become enforceable under their associated laws, or as interpretations of, or guidance for enforcement of said laws, not after a vote of approval, but after 60 legislative days have passed without a vote of disapproval. With no requirement for affirmative congressional consent, department regulations affecting a variety of aspects of citizens’ lives, written by unelected officials with their own political biases and their own jobs to preserve, can become equal to the law whether elected officials have considered them or not.
This is how Title IX became slowly twisted, via incremental changes in department policy, from a means to ensure equal access to education into an attack on athletic programs and students’ social interactions, and from a position against discriminatory limitations to a position enforcing them.
By the time Dear Colleague meandered through congress unchallenged… by the time the Campus SaVE act was slipped in using the 2013 Violence Against Women Reauthorization act, Title IX was already being used against male students in a variety of ways, many due to the aforementioned policy changes and administrator biases.
Over the last 30 years, Americans became accustomed to seeing not just access in general, but specific issues of student lifestyles, sensibilities, even personal relationships and other non-academic activities included in Title IX’s areas of enforcement. The law was used extensively during the 90s and early 21st century to attack the availability of men’s athletic programs in women’s name where women’s interest in sports was not being contravened, but was instead simply less than that of men. This has devastated men’s wrestling, gymnastics, and track & field programs on U.S. campuses, the very programs in which our nation’s future olympic competitors hone their skills. Then along came Dear Colleague in 2011, used just as extensively to attack men’s very presence on campuses… followed by the Campus SaVE act, written to bolster that attack by preserving Dear Colleague’s creation of a massive campus kangaroo court system.
Campus SaVE, however, also has the capacity to be used against campuses that violate the due process rights of accused students.
The act does require that any investigation be fair, prompt, and impartial, and it states that “the accuser and the accused are entitled to the same opportunities to have others present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice. The act says nothing about excluding lawyers and therefore does not give universities permission to deny an accused student the right to have an attorney present at his hearing. The act does not confer upon any institution the right to subject any student to an investigation and hearing without informing the student of the process, including the details of the accusation he’s facing, without recognizing an accused’s student’s right to cross-examine his accuser, without permitting the student to present evidence in his own defense, or without considering said evidence during the judicial process. As a result, students denied these basic due process rights have filed and are winning lawsuits against the institutions that have railroaded and wrongly penalized them.
University administrators and employees involved in the application of campus policy related to these issues attend an annual conference on Title IX’s current status, its implications, and its on-campus applications. Over the next few shows, HBR Talk is going to look at some of the presentations that were made at this conference. Hold onto your hats, Badgers. This rabbit hole is deep.