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Affluent Investor | April 29, 2017

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

The Strange Case of Dr. Jekyll and Mr. Hyde poster (Photo courtesy of U.S. Library of Congress, by Chicago National Prtg. & Engr. Co.) (CC BY) (Resized/Cropped)

The Strange Case of Dr. Jekyll and Mr. Hyde poster
(Photo courtesy of U.S. Library of Congress, by Chicago National Prtg. & Engr. Co.) (CC BY) (Resized/Cropped)

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.

Not only are college students at risk of severe and completely unjust punishment due to the OCR’s inquisition, the First Amendment rights of everyone on campus are imperiled.

On April 22, officials in the Department of Justice seized upon Title IX as grounds for insisting that the University of New Mexico adopt a speech code that would define any action (including speech) that involves “unwelcome” sexual conduct as “harassment” and thus subject to school sanctions.

Competitive Enterprise Institute attorney (and former OCR lawyer) Hans Bader discusses the implications of the government’s decree in this Liberty Unyielding piece:

“Thus, if a student is offended by a professor’s comment in a lecture about how AIDS is transmitted through anal sex, or by another student’s sexual joke, it would be deemed ‘sexual harassment.’ This definition … is vastly broader than the definitions struck down as unconstitutionally overbroad by federal appeals court rulings in DeJohn v. Temple University (2008) and Saxe v. State College (2001).”

Furthermore, Bader notes, the OCR rules compel universities to devote resources to its offensive against “sexual harassment” by encouraging students to report any “unwanted remarks” and investigating every complaint to see if they have allowed a “hostile environment” to exist.

But how can federal bureaucrats dictate plainly unconstitutional speech codes? It’s because they will never suffer any penalty for their actions. Overreach never boomerangs on them. No bureaucrat is ever fired for the abuse of power.

And why don’t university officials simply tell them that won’t comply? It’s because the cost of fighting Washington is so high. Professor Epstein writes that, given the power the bureaucrats have to withhold funds and the possibility of suits by private individuals in federal court against officials for any alleged breach of their regulatory duties, “the risk/reward calculation is too severe for even the hardiest institution.”

What if, back in 1972, a member of Congress had asked of the proposed new language, “Isn’t there some possibility that regulators will use it to create for themselves a force-field over all our colleges and universities such that they can dictate their own policies regarding speech, and mandate campus offices tasked with preventing what they deem bad behavior?” The reply from supporters would have been, “Oh, that’s just a ridiculous slippery slope argument.”

And yet, that is precisely what has happened.

To stop the juggernaut, Professor Epstein argues that judges should stop giving deference to agencies’ interpretation of their own rules, so-called Chevron Deference. That would be a very good development, and not just with regard to the Department of Education. The problem is that the great majority of judges have been trained to think that they should defer to the supposed expertise of bureaucrats. Therefore, stopping the juggernaut requires a serious change in our legal culture. That won’t be easy.

Of course, the solution that strikes at the root of the problem, getting the federal government out of higher education where it has no constitutional business in the first place, would be even harder.

Professor Anderson’s summary is right on target:

“What started out as a law to give women more opportunities in higher education has morphed in 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.”

 

Originally posted on Forbes.

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