Title IX: How a Good Idea Became Higher Education’s Worst Nightmare

When Congress passed the Higher Education Amendments of 1972, the new law included Title IX, which reads:

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 law was not controversial at first. Female college enrollment grew (today, the female-male undergraduate ratio is 57 percent to 43) and women’s collegiate sports were just catching on. Title IX helped increase female participation in college sports, which became the law’s main focus for more than 30 years.

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.

After the U.S. women’s soccer team defeated China in the 1999 world championships, broadcaster Robin Roberts claimed Title IX was largely responsible for the team’s success, and most people agreed. 

But despite its apparent successes, Title IX—or, more specifically, the government’s interpretation of Title IX—has helped turn college campuses into battlegrounds.

Title IX causes strife because presidential administrations used it to promote controversial, egalitarian, feminist agendas. That began in 1979, when the Carter administration’s Department of Health and Human Services declared that colleges would only comply with the law if “intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.”

While it was theoretically possible for a school to escape trouble by showing that it didn’t have perfect equality of athletic programs, but that inequality was not due to overt discrimination in practice—as Alison Somin explained in this Federalist Society article—that argument rarely worked. In effect the only safe thing for schools to do was to move toward perfect numerical equality in men’s and women’s sports.

Not surprisingly, “proportionate to their respective enrollments” morphed into a bureaucratic quota system that the Clinton administration put permanently in place. For example, if State University had an even ratio of males and females on campus, then there must be a 50-50 ratio of male and female athletes, or the university was “out of compliance.”

Because collegiate football teams often have 100 or more players, athletic departments must either provide more athletic opportunities for women in other sports, or eliminate some men’s teams. For example, the University of Tennessee-Chattanooga recently disbanded its men’s track team because the university could not afford to add more women’s sports in order to reach compliance.

Many colleges and universities have eliminated men’s wrestling, track, swimming, and volleyball teams to meet their Title IX quotas. As Carrie Lukas pointed out in this piece, men’s gymnastics programs have been especially hard hit, falling from 80 programs to fewer than 20.

Male-female sports controversies, unfortunately, are mild compared to the firestorm generated by the Obama administration’s recent interpretation of Title IX.

Citing a discredited study that claimed one in five women on college campuses are sexually assaulted (making campuses allegedly the most dangerous places on earth for females), in 2011 the U.S. Department of Education’s Office of Civil Rights demanded that institutions of higher education adjudicate all claims of sexual assault, sexual harassment, and rape using the “preponderance of the evidence” standard that prevails in civil cases. Failure to do so could result in loss of federal funds to that institution—including the federal loans many students use to pay college expenses. 

(The actual number of sexual assaults on campus, according to the U.S. Department of Justice, is about 6.1 to 1,000, or 0.61 percent.)

Because sexual assault and rape also are crimes, students or college officials report the allegations to police, which then investigate and determine whether or not to bring charges against the accused. The new Title IX standards require colleges to rule on these cases no matter what the police do. In a number of cases, college authorities found students guilty of sexual assault even when the police cleared the accused of any wrongdoing.

One of the most bizarre cases occurred when a male University of North Dakota student was expelled after a female student accused him of sexual assault. After police investigated, however, not only did authorities not find evidence of sexual assault, but they charged his accuser with lying to police. When faced with that set of facts, however, UND officials still refused to reconsider their expulsion decision.

In another example, shortly before Yale’s basketball team advanced to the second round of the NCAA Basketball Tournament in March, Yale officials expelled co-captain Jack Montague for sexual assault. Montague and a female student had sex four times during a relationship that ended in 2014. A year later, the woman told a Yale official that she believed she did not give consent to one of those encounters. Although the student did not launch a formal complaint, the Yale Title IX administrator filed a charge, leading to Montague’s expulsion in what only can be called a Kafkaesque proceeding. 

College administrators understand the new federal standards come with the expectation that officials convict male students who are accused of sexual assault, regardless of their guilt or innocence. If they don’t, they face the possible loss of federal funds for failing to adhere to rules that are nothing but “interpretations” of Title IX by officials in the Department of Education. 

Bad as the rules imposed under Title IX are, we haven’t seen the end of it. In a forthcoming California Law Review article, Harvard professors Jacob Gersen and Jeannie Suk point out that Title IX (as well as some other federal laws) has led to “an elaborate and growing federal bureaucratic structure that, in effect, regulates sex…. Colleges and universities are particularly important loci of the sex bureaucracy.” 

Among other results of this bureaucratic creep, colleges and universities are now under pressure to set up programs to deal with “potentially problematic conduct.” That is, it isn’t enough to punish students who sexually assault or harass others, but it is also necessary to regulate campuses so as to prevent bad conduct. One way to comply is to establish “bystander intervention training” programs.

What started out as a law to give women more opportunities in higher education has morphed into a bureaucratic monster that destroys due process of law, sets students against each other, and encourages bureaucrats to search for new ways to expand their authority.