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The Dr. Jekyll To Mr. Hyde Transformation Of Title IX

The following language (Title IX) was added to federal law in the Higher Education Amendments of 1972: “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 non-discrimination language was common back in the civil rights era. Just as the 1964 Civil Rights Act sought to prevent discrimination against individuals in the workplace based on race, so Title IX aimed to prevent discrimination against women (or, conceivably, men too) in higher education.

Initially, the main impetus behind the law was the rather blatant imbalance between men’s and women’s sports. Professor William Anderson explains in this article published by the Pope Center for Higher Education Policy, “I was on the University of Tennessee men’s track team in the early 1970s, which received substantially more support than the women’s program. We stayed in nice facilities on road trips, while the women piled numerous athletes into one room. Those not lucky enough to have a bed slept on the floor.”

Complaints about such inequality were widespread and most people regarded the language of Title IX as a reasonable, benign solution.

We still don’t, of course, have equality between men’s and women’s college sports, but one effect of Title IX has been to cause many schools to drop programs for men. That doesn’t help women at all, but it keeps them in compliance with Title IX regulations and avoids the high cost of dealing with bureaucrats who like nothing more than to investigate schools over alleged violations.

If that were the end of the harm wrought by Title IX, we might shrug it off as just another of the numerous minor costs of federal overreach.

Sadly, the loss of some men’s athletics programs is the least of the problem.

Title IX has now become a “juggernaut” in the words of NYU law professor and Forbes contributor Richard Epstein. He explains in this Hoover Institution article that extremely zealous bureaucrats have abused the law (specifically, the Administrative Procedure Act) to impose their own ideas of what the language “be subjected to discrimination” means. They have managed to turn it into a justification for federal intervention into every aspect of college life that somehow involves sex.

Epstein highlights the case of Colorado State – Pueblo student Grant Neal, who was suspended by the school after a consensual sexual relationship. The woman who was supposedly victimized by him actually decries the case and says “He’s a good guy.” But she isn’t the one who made the complaint. Another woman did. Despite the weakness of the case against Neal, the school decided to punish him anyway because, Epstein points out, that’s the way to avoid trouble with the aggressive federal bureaucrats in the Education Department’s Office for Civil Rights (OCR).

For more detail about this case as well as the good news that Neal is suing the government, read this article in Reason.

Epstein also shows how flagrant the OCR’s overreach is, since “Title IX’s prohibition is directed towards the educational institutions themselves, not to their enrolled students.” If Congress wanted to extend control over actions by students to the Department of Education, it could do so, but never has. This is another example of the cost we pay for allowing “administrative law” where bureaucrats get to write and enforce their own laws.

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