A Brief History of Title IX
“Title IX” was never intended to regulate romantic relationships on campus. So how did we get here? Robert Shibley, Executive Director of the Foundation for Individual Rights in Education, explains.
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[Robert Shibley] – Since I’m going first, let me give a little bit of a very abbreviated and probably overly simplified history of Title IX and how we got here. And one thing I should start out with is when you talk about Title IX, generally speaking people think of it in athletics, has generally been the history of it and in fact when it was put into place in 1972, that was actually one of the main concerns was the low level of women’s participation in college sports and from that perspective, Title IX has actually been a really smashing success, by about, I saw a graph talk about it in my book, by 1985, the representation of women in college sports had shot up so much and it really hasn’t moved a lot since so in that fairly short span of years, we really got to the representation level we have now. So when it comes to athletics, Title IX, there’s still controversy, obviously that has to do with it but that part of the controversy doesn’t have a lot to do with what we’re here today to talk about. What Title IX says, it’s a pretty short law, and the part of it that is actually operational is I think 29 words, and these are the words, 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. That sort of makes it sounds like it only applies to public schools. It does not because federal financial assistance includes just about every government grant obviously you get and also Pell grants and Stafford Loans, so there’re only a handful of schools in the country, all private schools, to which Title IX does not apply. So for all practical purposes it applies at every school in the country. It wasn’t long after it’s passage that feminist scholars realized that Title IX could be used for more than athletics and another big aspect of it was that it started to, it was a big part of the reason that we don’t have so many single sex colleges anymore. It started to really close the door on the ability to run single sex higher education programs easily. And the most prominent is somebody who is known to anybody who knows anything about feminism, Catherine McKinnen, who as a student and an early on advocate, this is her thing, pushed at Yale for people to bring a case that would start to use Title IX as a way to address sexual harassment on campuses, the idea being that Title IX bans sex discrimination, that’s the words it uses, it wasn’t clearly established at the time although it was an idea that was out there, it wasn’t clearly established that sexual harassment was a form of discrimination. But through a case, Alexander V Yale, 1977, even though it was a loss in court, they weren’t able to demonstrate any sexual harassment had taken place, they were able to establish the principle that sexual harassment is a form of sex discrimination under Title IX. Since then, as Tom was talking about, it has expanded from there, because there are a lot of different categories, things you can put into the rubric of sex discrimination. You can add in things like obviously sexual harassment, sexual assault is not considered to be part of it because it is considered to be, interestingly enough, it’s not in there cause it’s a crime, it’s in there because it is considered to be an extremely severe form of sexual harassment and therefore a form of sexual discrimination. That’s the reach that Title IX has onto it. We’re also seeing it being read into issues of gender, and to the extent that sex and gender are not coterminous which is not a debate we need to get into, there’s also debate over to what extent did the authors of Title IX be interpreted to cover gender identity as opposed to just sex, so there’s a lot of different complicated things and the Obama administration made what Fire thinks was a bad decision back in 2011 on April 4th, they released this now infamous Dear Colleague letter which has the most boring title possible but it was actually very exciting in a bad way for both Fire and civil libertarians and for colleges and universities. It was the administration’s attempt to edit what we think and what I think, I think we’re right on this, is a new interpretation of Title IX and basically saying that the law required, in order for you to be compliant with the law, you needed to have campus tribunals to determine whether or not sexual assault or sexual misconduct had happened, and those tribunals, whatever they are and they could be a single investigator, they could basically be an inquisitor, and I’m using that in a non pejorative way. There’s a reason why it has a pejorative term and I’m sure we’ll get into that, it has a connotation of that, you need to use the preponderance of evidence standard which is this 50.01%, there’s a lot of different ways of putting it, 50% plus a feather. Basically how certain do you have to be that it happened, you have to be, in order to declare that somebody’s responsible for sexual misconduct, 50% sure plus a tiny tiny bit. A lot of schools were already using that, some were not, and it was a new regulation, effectively from the government that said now all schools have to use it to be compliant with Title IX. They also discouraged cross examination, and particularly of the direct kind. And there’s some understanding for that. Obviously when you have a rape case on campus, it is extremely awkward and uncomfortable to have somebody questioning the person that they are accused of victimizing and vice versa. So that was discouraged, unfortunately what ended up happening is the opportunity for anybody to cross examine them or for you to ask questions that got to credibility was also being curtailed. So this became a pretty big issue and sort of got swept up in the fervor for regulatory reform as well because it was such a step past what the traditional roles of regulation were. Fire actually sponsored a lawsuit by a John Doe plaintiff and also Oklahoma Wesleyen University, challenging the preponderance mandate and that lawsuit was in the pipeline, and is still actually in court right now but it was just last week that secretary DeVos and the department of Education officially announced that they would be rescinding the 2011 Dear Colleague letter and this even longer I think 39 page long 2014 guidance that was trying to clear up a bunch of the confusion that had happened from the letter. And so that’s where we are now. We are going to be looking forward to, this seems weird to say it, particularly in a libertarian venue like this but we’re looking forward to the regulatory process where believe it or not, people have more of a say than they did last time. So sorry, I think I’ve gone overtime but hopefully that gives you an idea of where we are now.