I am grateful for the thoughtful responses to my essay by respected scholars Julia D. Mahoney, Teresa R. Manning, and R. Shep Melnick. In their pieces, the authors address, respectively, the need for an educational overhaul, the consequences of unnecessary laws, and the need to preserve the constitutional integrity of laws like Title IX. While the focus of each essay is different, I see significant agreement among us in our adoption of the Constitutionalist paradigm that I have suggested is necessary for preserving the integrity of the rule of law in our constitutional republic. For this reason, I find very little with which to disagree in their accounts.
However, there are mild differences among us that should be highlighted in order to clarify the problems caused by the transformation of Title IX’s initial goals, as well as the necessity of the Constitutionalist paradigm that my co-author William E. Thro and I are developing. Our minor disputes result primarily from the fact that my account focused on the Anti-Constitutionalist transformation of Title IX, which is only one aspect of the law’s history, uses, and abuses. Title IX controversies can loosely be grouped into two categories—ideological disputes over the statute’s end goals and their compliance with constitutional theory, and second, the constitutional means and processes by which Title IX should be enforced. My essay focused on the latter. In what follows, I will address the concern that my recommendations are too general, the extent to which Title IX was even needed, and the question of whether it is an exaggeration to call administrative lawmaking by unelected bureaucrats “Anti-Constitutionalist.”
Julia D. Mahoney suggests that my “generic” remedies to the “administrative state” are inadequate for ensuring that “our education system is one in which both women and men will thrive.” In response to education’s “rampant dysfunction,” she suggests the need for an educational overhaul, including the rejection of federal funding and rethinking the constitutionality of federal spending. While I agree with most of her observations, I question the feasibility of private schools rejecting federal funding altogether.
To be sure, we agree that rolling back the administrative state, while necessary, is not sufficient to correct all that ails Title IX or education more broadly. My intent is to emphasize the basic fact that the enforcement of Title IX has been a particularly egregious instance of administrative overreach, and that there are risks of continuing in this direction under the current and future administrations. Moreover, I stress the need to label this enforcement paradigm appropriately—as Anti-Constitutionalist—in order to challenge the status quo. If this lawlessness, as Teresa R. Manning correctly terms it, is not rooted out, political polarization, cynicism, lack of confidence in our institutions, and vitriol in disputes over Title IX, education, and throughout public policy will not only grow, but could become the permanently divisive norm.
Mahoney provides two recommendations to directly “overhaul” the educational system—releasing schools from the hold of federal funding and modifying the constitutional doctrine relating to federal spending, as recommended by Philip Hamburger. While I may quibble about the bleakness of my characterization, Mahoney is on target in contemplating ways in which educational institutions might break free from their federal shackles. However, Mahoney’s first solution may not be feasible for most schools because it means preventing students from accepting federal grants and loans, which could significantly limit financial aid to that institution’s students. It is not incidental that fewer than 20 colleges and universities have taken this path. The Civil Rights Restoration Act of 1987, passed by overwhelming majorities in the House and the Senate, extended the reach of Title IX to every aspect of college and university life, which means that if a single student receives a single dollar via a federal grant or loan, the university must adhere to the entirety Title IX’s requirements. Given the astronomical costs of higher education, this path simply may not be feasible without a radical restructuring of higher education financing.
Mahoney is correct to have us ask what the benefits conferred by federal involvement in higher education actually are. This leads her to Philip Hamburger’s thoughtful analysis of how the federal government regulates the states and the people through the purchase of compliance. The federal government provides money to the states for education, health care, highways, or any myriad of services, but requires that the recipients adopt certain rules in exchange. Hamburger describes the maliciousness of this “new irregular pathway of power”:
The government, when it cannot get something through Congress, or doesn’t think it will, and cannot get an administrative rule because it might be unconstitutional or politically unpalatable, it then will turn to another irregular path, not an agency rule that purports to bind, but rather a condition on the receipt of money. And what’s interesting about these conditions is they do not purport to bind. In fact, the whole point is they’re not binding. They don’t really restrict one, so theory goes because they’re just conditions on the money and that liberates the government to do all sorts of things that never otherwise could have done, things that would have been impossible even to administrative power. So it’s an additional irregular path and therefore profoundly dangerous. Because if you think about this evasion as a cascade of evasions, you first evade the Constitution through administrative power, and then you evade it yet again through purchasing submission. So it’s moving even further away from law.
Interestingly, this latter solution is quite similar to mine. Cut off the so-called “irregular paths” to lawmaking, which Thro and I call “Anti-Constitutionalist” paths.
Perhaps the first essential step in returning constitutional integrity to Title IX would be to drive home that federal appointees in the Office for Civil Rights are required to follow the laws and procedures that they are tasked with enforcing, and that they will be held accountable if they do not do so. And, the painstaking rulemaking process that Betsy DeVos employed was an essential first step in returning the OCR to the legally mandated approach. The challenge is in ensuring those changes, which in fact were adopted in a constitutional and legal manner, and which comport with due process rights of the accused, do not get undone by executive or judicial fiat by the current or future administrations.
Both Teresa R. Manning and R. Shep Melnick emphasize the significant alterations of Title IX and the resulting controversies that occurred through administrative lawmaking after the law had achieved its initial purpose. Like me, they are both troubled by Title IX’s “transformation,” that is, unelected federal bureaucrats’ alterations of the trajectory of the law to become something entirely different. However, Manning questions whether the law was needed in the first place, stressing the dangers created by unnecessary laws. Notwithstanding this critique, Manning and I arrive at the same conclusion: Anti-Constitutionalist antics, or simple lawlessness, by federal appointees must end.
It is worth noting that there is nothing constitutionally problematic with Congress passing an unnecessary, or even a bad law, but the Constitution tries to make the creation of these less likely through processes intending to prevent unconstitutional laws and to promote consensus. The Constitution does not and cannot prevent Congress from doing something short-sighted or unwise in pursuit of a policy goal. Article I of the U.S. Constitution vests “[a]ll legislative Powers” in a Congress divided into a House and a Senate to ensure that lawmaking would be slow-moving, often painstaking, and frustrating. The requirement of securing majorities in both the House and the Senate makes it more difficult to pass any kind of legislation—good or bad, wise or unwise. This process aims to discourage bad laws from being passed and ideally to build consensus for needed laws. Legislation built on debate, compromise, and consensus tends to be more stable, reliable, and respected. In Title IX’s case, there was bipartisan support in the House and the Senate.
That being said, however, it is a viable question to ask whether Title IX was actually needed or not. Manning and Mark J. Perry provide statistics demonstrating women’s increasing share of Associate and Bachelor’s degrees prior to the adoption of Title IX and therefore suggest that the law was not needed and should not receive credit for these increases. Manning may be correct that the obstacles to women’s entry into higher education “may have been exaggerated,” but Title IX still seems to have hastened the entry of women into post-graduate Ph.D., M.D., and J.D. programs, and, as she mentions, athletics. A multitude of factors including whether discrimination, self-selection, lifestyle choices, or some other factors may account for the small number of women in postgraduate students prior to Title IX’s implementation, so it will not be possible here to determine whether or not it was necessary to speed up this process. Manning appropriately prompts us to consider whether non-discrimination or social engineering was indeed the goal of Title IX advocates.
Regardless of its necessity, Title IX remains and will remain in place. The final question is how to ensure such laws, whether good, bad, necessary, or unnecessary, are not hijacked via Anti-Constitutionalist means, nor used as a vehicle to achieve policies unrelated to a law’s original and constitutional purpose. Our conclusions are virtually the same in recognizing that unelected bureaucrats “intent on imposing policy preferences by whatever means available don’t actually need a new or unnecessary law as a vehicle. Any cover will do, including from the Constitution.” This is why I think it is so important to draw attention to such antics by labeling them for what they are, “Anti-Constitutional” tactics that should be prohibited.
Who is Anti-Constitutionalist?
Finally, R. Shep Melnick mentions a “mild disagreement with my characterization of Catherine Llamon and Vanita Gupta as ‘Anti-Constitutionalists,‘” because he recognizes that they “do have an implicit constitutional understanding that is widely shared among the educated elite.” This is a crucial point that requires elaboration. William Thro and I argue that a true Constitutionalist must adopt both constitutional end goals and constitutional means and procedures. By contrast, an Anti-Constitutionalist, whether left, right, nonpartisan, or center, fails to strive towards constitutional goals and/or fails to utilize the appropriate means required by law. Below I use the example of Catherine Llamon to illustrate the Anti-Constitutionalist position.
A Constitutionalist must employ a proper understanding both of constitutional means and ends. Constitutional end goals include the goals articulated in the Constitution’s Preamble and alluded to in the Declaration of Independence. Such ends include the federal government’s duty to protect the People’s rights to life, liberty, and property, to provide the equal protection under the law, to allow a writ of habeas corpus, and to refrain from making laws that threaten the essential liberties enumerated in the Bill of Rights and Amendments 13, 14, 15, 19, and 26.
Even if one pursues constitutional end goals, they must also utilize constitutional means, or the legitimate means of pursuing these ends. Merely asserting that one has a constitutional theory, or bending the language of the Constitution to fit one’s policy goals is not adequate to qualify as “Constitutionalist.” Lawmakers must adhere to the constitutionally mandated separation of powers, sharing of powers, enumeration of limited powers, and the prohibitions imposed in the body of the Constitution, the Bill of Rights, and the other Amendments. Appointees must also follow laws passed by Congress to clarify the processes and procedures that must be used, like the Administrative Procedure Act (APA). These procedures do not exist to annoy or frustrate lawmakers or individuals seeking justice or protections, rather, they exist to ensure fair treatment under the law. Health Freedom Defense Fund Inc., v. Biden (2022) explains that “more than outcomes are at stake. Process matters too.” For example, the APA’s required “notice and comment” procedures enable public participation by stakeholders who share concerns that might ultimately strengthen or limit a law.
Consider the case of Catherine Lhamon. As Assistant Secretary for Civil Rights, she issued the 2014 Dear Colleague Letter on sexual violence to clarify the 2011 Dear Colleague Letter and to require schools to implement parallel justice systems that ensured a greater likelihood of conviction for those accused of sexual misconduct. These ends were Anti-Constitutionalist in violating due process rights of the accused. The means was a Dear Colleague Letter that was implemented in violation of the APA. One could question the constitutionality of both her end goals and her tactics during her tenure in the Office for Civil Rights.
As noted in my original essay, the 2011 Dear Colleague Letter promulgated requirements that “subordinat[ed] so many protections long deemed necessary” to protect those accused of serious offenses from injustice. Moreover, when Llamon’s policies led to over 700 cases with numerous courts rejecting the OCR’s questionable regulations, she did not recant. To date, Lhamon has refused to acknowledge that the Title IX guidelines promulgated under her leadership included serious due process violations. Instead, she doubled down, insisting on the necessity of her measures. Lhamon also failed to comply with the APA’s notice-and-comment process required for new rulemaking, but refused to acknowledge this error. While she may claim or even believe that she holds some sort of “implicit constitutional understanding,” she is clearly Anti-Constitutionalist in both her creation of policy that violated longstanding due process rights of the accused and in her refusal to follow mandated procedures. Moreover, it has been noted, that Lhamon may not even recognize the limits of her authority as Assistant Secretary for Civil Rights. Melnick elaborates the gulf between our written Constitution and Title IX administrators’ like Lhamon’s “constitutional vision” aiming to “bend the arc of history itself.” We can and must begin the bend the arc of Title IX and administrative fiat back.
Sadly, this Anti-Constitutionalist behavior has yet to be denounced in a bipartisan way, for despite her dereliction of duty, Catherine Llamon was reappointed to her previous position as Assistant Secretary for Civil Rights by a 50-51 vote completely along party lines, with Kamala Harris casting the tie-breaking vote. Thro and I hope that eventually, and hopefully soon, individuals on both sides of the political aisle can agree with the simple premise that the laws must be followed—that process matters. In other words, can we first work towards a bipartisan recognition that Anti-Constitutionalist means must be abandoned? Then, we can get to the business of debating the content of our policies to ensure Constitutionalist ends are consistently sought.