The headline “50 Years of Title IX” on the cover of the fall 2022 edition of the Temple University law school magazine Esq. and the lead article entitled “What Has It Accomplished, What Is Next” promised to be authoritative.
Title IX of the Education Amendments of 1972 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 educational program or activity receiving federal financial assistance (emphasis added).
While I was aware that the goal of Title IX was to provide equal financial support for athletes, my reading of those 37 words led my discovering “That’s all folks” — to quote the ending of Bugs Bunny cartoons. Those 37 words made up all of Title IX.
The unanswered question was: Why were the feds involved in education?
The 10th Amendment of the Constitution provides that any powers not specifically given to the feds, such as education, are reserved for the people, meaning the states. Initially, in 1867 (the actions immediately after the Civil War are always interesting), the feds just started to collect information. It appears, as it frequently does, that the leverage for the feds to become involved was their “federal financial assistance,” which always comes with “strings.”
President Jimmy Carter’s Education Department’s Office for Civil Rights regulations in 1979 supported the theory that Title IX was limited to athletic issues by providing that male and female athletes should receive equivalent treatment, benefits and opportunities. Note the standard was “equivalent,” not “equal.”
President Carter in 1980 raised the Education Department to cabinet level.
In theory, I agreed with that objective as I saw the importance of exercise in staying not only healthy, but alive. Sadly, as I watched the obesity rate, and all the accompanying health problems, increase from 1950-2022 from 10% to 42%, schools reduced their emphasis on health and physical education.
It did bother me that an unintended result of Title IX was the cancellations of some men’s sports, such as wrestling, due to budget restraints, despite men’s football and basketball typically paying for the entire athletic budget.
In the above cited article, law Professor Kenneth Jacobson did not mention any of the cancellations, but did cite many of the athletic achievements of women, such as Olympic medals. While these are truly noteworthy, my opinion is the greater benefit is all the women whose lives were improved by their physical activities.
How did Title IX become extended beyond sports?
Enter the Obama-Biden team, whose OCR in 2011 issued guidance, but not regulations, requiring schools to have processes in place to eliminate, prevent and address all issues of sexual harassment. Attorney Gina Smith said that this created “an avalanche of regulatory laws and guidance that spawned a cacophony of social and legal actions.” In other words, confusion and frustration for educators and a great deal of money for lawyers.
Enter President Joseph Biden Jr., a Democrat who not only revoked Republican President Donald Trump’s reduction of federal regulations but in his first year issued the record number of 42,000 pages of new regulations.
Subsequently, Dr. Jacobson indicated that there likely will be litigation under Title IX on allowing transgender athletes to compete. A sign of how far we have come is that in 1972 the drafters did not define “sex.”
The implementation of Title IX requires that institutions must create a system to handle alleged sexual assaults regardless of whether they are reported to law enforcement. Think about that! Since sexual assaults are a crime, they should be handled by the established legal system that has safeguards to protect the rights of everyone.
What happens when Title IX requires schools to create their own mini-legal systems?
Perhaps an unintended, but certainly foreseeable, consequence was that school’s inability, or unwillingness, to ensure the rights of males in “he said-she said’ cases, greatly harmed them as well as the reputations and finances of such schools as Duke University and the University of Virginia.
The article cites attorney Irene Lax, whose firm is suing Brown University for allegedly mishandling complaints of sexual misconduct, saying she hopes to see more applications of Title IX to K-12. If Brown University is being sued for not doing this procedure appropriately, how will other smaller schools, perhaps even K-12, find the money and staff to protect everybody’s rights?
This month, President Biden’s secretary of education, Miguel Cardona, and the OCR are preparing to issue final regulations that attorney Gina Smith said would expand the scope and jurisdiction of sex discrimination to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, gender identity, current, potential, or past family or marital status, and sexual harassment (harassment on the basis above, as well as quid-pro-quo , hostile environment, sexual assault, dating violence, domestic violence and stalking).
Imagine, professors and K-12 teachers trying to teach a subject while protecting themselves from being charged with violating someone’s real, or perceived, stereotype, characteristics (whatever that means), orientation or identity.
Think your responsibility ends at the classroom door? Think again, as attorneys like Smith and Lax will be watching how you handle your students’ “family marital status, dating violence or domestic violence.” How can you know about “stalking” unless you stalk the stalker? Ever thought about malpractice insurance?
Attorney Smith suggested states should create a regional investigation and adjudication centers that will, of course, cost time and money to establish and run.
A much fairer and simpler approach is to put education back into the states by voting out the people who are creating that sink hole of a system.
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. His website is OneheartTwoLivescom.wordpress.com. Formerly, he taught law and business at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer” and “Law for Non-Lawyers.”