Richard Garnett’s lead forum essay highlights a central tendency of antidiscrimination law: to migrate from the original goal of eliminating discriminatory public behavior to attacking objectionable private thoughts. Behind this shift lies the understandable desire to eliminate the “root cause” of inequality. But in the long run, the expanded regulatory project requires a level of government surveillance of private behavior and control over speech and thought that is incompatible with liberalism. Thus the effort, evident in Garnett’s discussion, to set prudential limits on the reach of otherwise admirable legislation.

Searching for “Root Causes”

In the United States, antidiscrimination law aimed first and foremost at ending the second-class citizenship of African Americans. Laws designed to address discrimination on the basis of sex, language, religion, disability, sexual orientation, and age were all modeled on legislation and court rulings prohibiting racial discrimination. 

The first wave of antidiscrimination efforts targeted “state action,” the second “public accommodations.” Although the latter covers facilities owned by private parties, they are open to the public and the behavior in question is on public display. The more intimate the setting, the more likely judges and legislators initially were to limit government regulation: Title VII of the Civil Rights Act does not cover businesses with a handful of employees; the Fair Housing Act did not cover “Mrs. Murphy’s boarding house.” Religious institutions receive similar exemptions from some antidiscrimination rules.

Those determined to eliminate inequalities “root and branch” have long chafed under such limitations. During the 1960s, the Supreme Court came close to reading the “state action” requirement out of the post-war amendments. The Court also reinterpreted Reconstruction statutes to address forms of behavior not covered by more recent laws. 

Two arguments fueled efforts to extend regulation from public to private and from conduct to speech and thought. First, all discriminatory behavior, no matter what the setting, attacks the dignity and affects the life chances of those subject to it. Second, and in the long run more significant, is the argument that since overt discriminatory behavior is so hard to identify and prevent, the government has the responsibility to eliminate the beliefs that lead to such all-too-common behavior. Human beings are adept at hiding their prejudices not only from others, but even from themselves—thus the widespread concern about “implicit bias.” As a result, racism, sexism, able-ism, and other sets of beliefs, assumptions, and traditions became the target of civil rights regulation.

This is most apparent in education. Brown v. Board of Education refused to state the obvious, namely that “separate but equal” had always been a fraud, with vastly unequal resources going to white and black schools. Instead, the Court rested its argument on what became known as “stigma”: since “the policy of separating the races is usually interpreted as denoting the inferiority of the negro group,” it generates “a sense of inferiority [that] affects the motivation of a child to learn.” 

Undoing the effects of segregation thus requires school officials to combat these stereotypes and eliminate the “sense of inferiority” generated by previous school policies. Desegregation, judges were repeatedly assured, would change how white and black students think about each other; contact would produce mutual racial tolerance. In “unitary” school systems, racial prejudice and stereotypes would soon fade away. As Justice Thurgood Marshall put it, “Unless our children begin to learn together, then there is little hope that our people will ever learn to live together.” Ending discrimination means changing the way all of us—black and white alike—think about race. 

As long as this meant counteracting demeaning racial stereotypes, stigmatizing raw racial prejudice, and insisting that students judge others by the “content of their character” rather than the color of their skin, there was little to which a reasonable person could object. Once combatting racial discrimination was redefined to require non-BIPOC students to acknowledge their inner racism and to fight against all manifestations of “white supremacy,” the ease with which an education in tolerance could morph into intolerant indoctrination became evident. 

Eliminating racial prejudice is such a compelling goal that it is not always easy to see the dangers in the shift from public to private and from behavior to belief. But the same shifts occur in other sectors of antidiscrimination law, and there the pitfalls are more evident. 

The Title IX Example

In The Transformation of Title IX, I show how Title IX of the Education Amendments of 1972 changed from a relatively straightforward effort to eliminate institutional barriers to educational opportunity for women into a much broader campaign to change how all of us—teachers, students, administrators, and the public at large—understand all matters related to sex, not just gender roles, but acceptable sexual relations and even whether sex differences are real or mere “social constructs.”

For many years, intercollegiate sports was the most contentious Title IX issue. This is not because sports is so crucial to higher education—in fact, it usually does more harm than good—but because this is one of the few school activities segregated by sex. To preserve athletic opportunities for women, federal regulators embraced the principle of “separate but equal.”

What constitutes “equal” in sports? Gradually, two precepts took hold. The first was that the athletic “opportunities” afforded women must be proportional to the undergraduate enrollment of women, not their relative interest in athletics. The rationale, to put it bluntly, was that female students operate under false consciousness: they do not realize how much they could be attracted to highly competitive sports. 

Federal judges and administrators interpreted Title IX as an instrument for deconstructing gender stereotypes. As the First Circuit explained in the leading case, “Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women’s interests and abilities.” Evidence purporting to indicate that women are less interested in sports than men “provides only a measure of the very discrimination that is and has been the basis for women’s lack of opportunity to participate in sports.” A judge on the Ninth Circuit explained that “women’s attitudes toward sports are socially constructed and have been limited by discrimination and gender stereotypes.” “Build it and they will come” became the motto of those who sought to use federal regulation to change these gender stereotypes. 

A second precept was just as important, but seldom explained: regulators would count “athletic opportunities” by adding up the number of male and female athletes on varsity teams. This was hardly an obvious metric. At most schools, especially those that spend heavily on athletics, varsity athletes are a tiny proportion of the student body. Many, many more participate in club, intermural, recreational, and fitness activities. Yet the vast literature on Title IX and athletics includes few references to the sort of activities that most women (and most men) favor. 

Why have advocacy groups claiming to speak for women put so much emphasis on varsity sports? In part because those athletes, their coaches, and the professional sports leagues that hoped to use colleges as their farm teams are organized. Intermural ultimate frisbee teams and yoga classes are not. In politics, organization counts.

Just as important is the visibility of intercollegiate sports. Those pushing for more admissions slots and scholarships for female athletes see this as a way to change gender expectations among the public at large, especially the self-perceptions of girls not yet of college age. 

Seldom mentioned is the well-documented fact that increasing the number of female varsity athletes imposes a high cost on other female students. At selective schools, it substantially decreased the number of female applicants who are accepted on the basis of academic excellence rather than athletic prowess. All too often it contributes to an anti-intellectual school climate that hurts all undergraduates—especially female students, who tend to be more serious about their studies than their male counterparts.

From the Playing Field to the Bedroom

If Title IX regulation of sports shows how the focus of government efforts moved from behavior to belief, Title IX guidelines on sexual harassment highlight the shift from public to private. In the late 1990s, the Supreme Court held that school officials were legally liable under Title IX if they had “actual knowledge” of sexual misconduct by school employees and remained “deliberately indifferent” to it. A year later it applied this same standard to sexual misconduct perpetuated by a student against a peer. 

Regulators within the federal Department of Education rejected this lenient standard for policing what became known as “sexual harassment.” The Obama administration announced guidelines that placed extensive responsibilities on all schools, from pre-K to post-graduate. The Department’s “new paradigm” stated that once a school has evidence that one or more students have been subjected to “verbal conduct” that creates a “hostile environment,” it must “take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects.” 

Simply disciplining perpetrators of sexual misconduct (which the Department defined to include “unwanted” speech) is not enough. The head of the Office for Civil Rights explained that her purpose was “to change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence on our college campuses across the country.” “Change the culture” became the mantra of sexual harassment law under both Obama and Biden. According to the White House Council on Women and Girls, “Sexual assault is pervasive because our culture still allows it to persist.” Consequently, “violence prevention can’t just focus on the perpetrators and the survivors. It has to involve everyone.” 

Schools were expected to prevent sexual misconduct “through the promotion of positive and healthy behaviors that foster healthy, mutually respectful relationships and sexuality, encourage safe bystander intervention, and seek to change behavior and social norms in healthy and safe directions.” The result, Jacob Gersen and Jeanie Suk Gersen explain, was the creation of a “college sex bureaucracy” that provides “sex instruction reminiscent of guidance provided by sex therapists like Dr. Ruth.” These sex bureaucrats have been “instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire” that govern behavior in the most private settings possible. 

In 2010 the Department of Education issued a “Dear Colleague Letter” on schools’ responsibility to protect students from bullying that results from “hostility based on sex or sex-stereotyping.” According to these guidelines, “It can be sex discrimination if students are harassed either for exhibiting what is perceived as stereotypical characteristics for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.” It is not enough for schools to respond to individual instances of bullying. Their “more comprehensive response” must include “educating the entire school community on civil rights and expectations of tolerance, specifically as they apply to gender stereotypes.” In other words, schools must take steps to disabuse their students of “stereotypical notions of masculinity and femininity.”

This attack on “gender stereotyping” had surprising implications for single-sex sports teams, bathrooms, locker rooms, and dorms. According to the Seventh Circuit, in passing Title IX, Congress “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” “By definition,” the court argued, “a transgender individual does not conform to the sex-based stereotype of the sex that he or she was assigned at birth.” A school policy “that requires an individual to use a bathroom that does not conform with her or his gender identity punishes that individual for his or her gender non-conformity, which in turn violates Title IX.” 

According to this interpretation of antidiscrimination law, schools must not only assign transgender students to facilities that match their gender identity, but also insist that others acknowledge their gender identity. As Assistant Secretary of Education for Civil Rights Catherine Lhamon explained, “The bathroom question was never just about bathrooms. It was about how that child will be perceived and seen.” Schools thus bear responsibility for changing how all their students think about sex and sex differences.

Since 1972, regulation under Title IX has moved from the classroom to the playing field, and then to the bedroom and bathroom. Despite the fact that women and girls now outpace men and boys in virtually every aspect of education, regulation has expanded, migrating from the public to the most private, from institutional policy and student conduct to students’ speech and public beliefs. Starting in the 1960s and 1970s, long-standing beliefs about the role and capacities of women have mercifully crumbled with only a small nudge from government. Yet regulatory efforts to change how we think about all matters sexual have intensified, at times raising the specter of indoctrination and inquisition.

The problem is not the legislation that seeks to prevent various forms of discriminatory behavior. Rather, it is the tendency of those who carry out these statutes to extend their reach into our most private conduct and thoughts. The challenge of antidiscrimination law is to find ways to combine vigorous enforcement of these statutes with prudential barriers that respect the public/private distinction that lies at the heart of modern liberalism.