Title IX turns 43 this month, and is no stranger to controversy. The federal law prohibiting gender discrimination on college campuses has taken fire over the decades for its role in eliminating male sports in order to achieve gender balance in athletics. But it’s recently gone from bad to worse. Regulators and gender activists have conspired in recent years to turn Title IX into an abomination that is subverting free speech, due process, and the individual rights of students and teachers alike.
Although it contained various definitions, qualifications and the standard helping of incomprehensible legalese, the core of Title IX was fairly straight forward. It says: “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.”
The language was actually borrowed from the Equal Rights Amendment, a Constitutional amendment then, and still now, under consideration that would explicitly prohibit discrimination based on gender. Ironically, many feminists opposed the amendment when it was made known that it would require an end to preferential treatment then codified into law, such as shorter work hours for women. Even today some still oppose finally ratifying the amendment because it would mean that equal would actually mean equal, and thus deny women “special protections.”
Regardless, when the Equal Rights Amendment was struggling to move forward, one of its chief architects took the opportunity to attach similar language to an education bill then under consideration. To illustrate the rather straight forward intent of its inclusion to prohibit explicit discrimination against women, he said on the floor, “We are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again. The desire of many schools not to waste a ‘man’s place’ on a woman stems from such stereotyped notions. But the facts absolutely contradict these myths about the ‘weaker sex’ and it is time to change our operating assumptions.”
Most importantly, he said Title IX was “an important first step in the effort to provide for the women of America something that is rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills…”
But while it may have opened doors for women, Title IX also certainly closed many for men.
As often happens, the law Congress passed left much of the details open for regulators to flesh out. And despite specific prohibitions in the law against using statistical imbalances as de facto evidence of discrimination, that’s exactly what regulators interpreted it to do.
Today it’s widely acknowledged that Title IX has harmed men’s athletics. As schools struggled to convince women to participate to the same degree as men – reflecting perfectly valid differences in individual preferences – they were left with no choice but to cut men’s programs or suffer penalties. Low revenue men’s programs like wresting, swimming, and track and field have suffered the most cuts.
At issue is not the language of the law itself but how federal bureaucrats at the Department of Education have enforced it. They invented the requirement that participation in athletics must mirror the demographics of the general student body, regardless of student interest.
As bad as Title IX has been for men denied athletic opportunity in the name of equality, creative new re-interpretations by the Obama administration has made it something much, much worse. Not only do these wish to apply the same mindless quota system to the sciences as has so victimized men’s athletics, but they are also using it to persecute male students in the name of ending a non-existent college rape epidemic.
Responding to “rape culture” hysteria, Obama administration activists decided in 2011 that Title IX was the perfect vehicle to advance a troubling feminist crusade against due process.
The Department of Education’s ironically named Office for Civil Rights issued a memo directing that college men accused of rape should not be afforded the usual protections of the criminal justice system: the right to counsel, to confront their accusers or the presumption of innocence. Instead, they demanded that all colleges and universities that receive federal funds – the legal justification by which they assert jurisdiction – should not only adjudicate sexual harassment claims instead of leaving them to the existing criminal justice system, but that they must do so under the much less rigorous “preponderance of the evidence” standard.
Every American knows about the self-explanatory “beyond a reasonable doubt” standard used in real criminal cases. It exists to minimize as much as possible the likelihood of convicting the innocent. And even then it frequently fails. The “preponderance of the evidence” standard drastically lowers the burden of proof, to the point that a student should be considered guilty if it is “more likely than not,” or 50.01% likely, that they committed an infraction.
As if that is not enough, the policy also took the novel stance that both parties should be able to appeal a ruling. Where real courts protect individuals from double jeopardy – or being tried over and over for the same crime – the Department of Education says accusers should be able to appeal even when the target of their accusations has already been cleared of wrongdoing.
The tables have clearly been turned against defendants in a way that must please the “listen and believe” fanatics of modern feminism. And the results have been every bit as destructive as many (myself included) predicted they would be.
Under financial threat from regulators, administrators have created a presumption of male guilt on college campuses. But now, many are fighting back, leading to a slew of lawsuits as victimized men turn to the legal system sidelined by feminists and activist regulators in search of protection against arbitrary and impartial panels that hold vast power over their entire futures.
Title IX absurdity reached a nadir recently when Professor Laura Kipnis spoke out against the application of Title IX in another case, only to then face Title IX complaints from two students who merely objected to her arguments. Her subsequent tale of the kangaroo proceedings that followed have sparked a discussion about the decline of academic freedom in the face of a growing totalitarian movement that demands the emotional bubbles of students be protected by safe spaces, trigger warnings and strict prohibitions against any uncomfortable ideas.
That a law once sought to ensure equal access to higher education among genders is now being used to try and silence a female professor for criticizing the use of that very law just goes to illustrate the dangers of blindly following good intentions down the path to hell. The use of Title IX accusations in lieu of debate further goes to show how corrosive a presence it has become. And while it’s hardly responsible for the current trend against free speech, it’s malleability makes the law too dangerous to leave on the books in such a repressive environment.
Women now outnumber men among college students, so we can safely say that access is not being restricted along gender lines. Title IX should be repealed before unelected bureaucrats expand it further in the advance of a radical agenda with no respect for basic rights.
Brian Garst is an advocate for economic and individual liberty. He works as Director of Policy and Communications at the Center for Freedom & Prosperity, a free market think-tank dedicated to preserving tax competition. His writings have been published in major domestic and international papers, and he is a regular contributor for Cayman Financial Review. He also blogs at BrianGarst.com and you can find him on Twitter @BrianGarst.
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