The anti-discrimination law known as Title IX is meant to protect students from gender-based discrimination, but it has been used over the years to perpetuate it.
“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,” states the law’s preamble.
Originally passed as part of the Education Amendments of 1972, Title IX was mostly used to increase opportunities for women to participate in sports. It quickly became used as a tool not for gender equity but for gender parity. This has been done through bureaucratic “clarifications” issued by the Department of Education — which are not subject to congressional approval, even though they impose new requirements for federally funded higher learning institutions.
In the early 1990s, Brown University was sued under Title IX because it downgraded two of its women’s sports teams. Activists sued, even though Brown actually provided more opportunities for female athletes at the time than for male athletes. Jessica Gavora recently wrote about the case in the Wall Street Journal. The courts were unmoved by Brown’s defense that it was providing more opportunities than female interest in sports could sustain.
“The responsibility of the school wasn’t to provide equal opportunity to participate in sports — it was to educate women to be interested in sports,” Gavora wrote. “In effect the ruling said that Brown women didn’t know what they wanted. They only thought they were dancers or actors or musicians. They had to be taught that they were really athletes. They didn’t know what was good for them but the government did.”
Following that ruling, the Education Department’s Office for Civil Rights released a “clarification” that sent the message to colleges that men and women’s involvement in sports had to be equal, not just their opportunities to participate. This led to many male athletes being cut from teams in order to pare down men’s involvement to match women’s.
That clarification paled in comparison to OCR’s 2011 “Dear Colleague Letter,” which again reinterpreted Title IX to force schools to adjudicate campus sexual assaults. This letter, again, was not approved by Congress, even though it vastly expands the role colleges and universities must play in this area, under threat of losing precious funding.
That letter has been widely criticized as eviscerating due process rights, including the requirement to use a “preponderance of evidence” standard, which requires campus administrators to be just 50.01 percent sure an accuser is telling the truth. The letter does require schools to provide accusers and accused students with the same rights at trial, but the school is mostly free to determine those rights, such as allowing representation or witnesses.
But the letter also “strongly discourages” schools to allow accused students to cross-examine their accusers, a basic due process right. OCR discourages this because it “may be traumatic or intimidating.” This limits accused students’ ability to effectively defend themselves from false “testimony” (students are not under oath during these hearings).
Beyond that, the letter couldn’t provide students with subpoena power in order to secure evidence that could sway a hearing board one way or the other. That deficiency came to light at Amherst College recently, when an accused student was expelled, then later acquired text messages from the accuser showing their encounter had not been a sexual assault at all. He only saw those text messages after hiring a lawyer to sue the school for his expulsion. When the student presented Amherst with the newly-discovered text messages, the school refused to reopen his case, claiming they had a fair process.
That “fair” process did not allow the accused student to cross-examine his accuser except for pre-approved questions that he couldn’t follow up on. He was also assigned an “adviser” who was clearly not on his side.
This “fairness” prompted Fox News analyst Brit Hume to opine Tuesday night: “Why would Amherst say after this travesty … that the proceedings were fair under government regulations? Because under the government regulations, they may have been fair.”
And therein lies the problem. The process schools must follow under Title IX is fundamentally unfair and needs to be changed to provide students with the same due process rights they would have in a criminal trial. After all, sexual assault is a crime.
It is more realistic to reform Title IX than it is to repeal it, or even — at this point, anyway — to require schools to hand such investigations over to the police. Sexual assault is a serious matter, and it needs to be treated as such — that means treating it like the crime that it is, and that means both taking accusers seriously and providing protections for accused students who stand to have their lives ruined by a process that is currently designed to do just that.
