Title IX, the 1972 legislation banning sex discrimination in education programs that receive federal financial support, was a reasonable equality-of-opportunity law in its original form. So what explains the scorched-earth campaign against men’s sports carried out in its name? Why has it been used to deny students and professors due process and free speech in sexual harassment cases? When a Massachusetts district court judge reviewed Brandeis University’s Title IX–inspired harassment proceedings, he declared them “closer to Salem 1692, than Boston 2015.”
How did we get here?
I have been reading and writing about weird applications of Title IX for years. Until now, I didn’t fully understand the source of the weirdness. In his new book, The Transformation of Title IX, Boston College political science professor R. Shep Melnick provides the answer: the transformation happened slowly and incrementally and involved a strange symbiosis between government officials, federal judges, and activists. Melnick’s calm, lucid analysis shows how a law once intended to increase educational and athletic opportunities for girls and women came to diminish those opportunities for men and women alike.
Responsibility for administering Title IX falls to the U.S. Department of Education’s Office for Civil Rights (OCR). This small agency has the power to issue rules and regulations and to deny federal funding to schools that fail to meet them. But Congress has placed clear constraints on OCR rule making. New rules must be approved by the president after a “notice-and-comment” proceeding that allows affected parties—colleges and universities, civil liberties organizations, policymakers, activist groups, students, parents—to ask questions, raise objections, and request clarifications and revisions to proposed rules before they become binding policy.