Americans have long rejected private delegation as an affront to representative government.
Thanks to Elizabeth Kaufer Busch for giving readers an overview of Title IX, the federal ban on sex discrimination in schools receiving federal funds. Her article, “A Tale of Two Statutes,” describes the law’s origins, its problematic evolution with the Department of Education directives, and, of course, the two camps now at odds on how best to implement this statute—what she calls “Constitutionalists” and “anti-Constitutionalists.” Readers are now up to speed on past and current Title IX disputes and, in particular, the problem of agency over-reach within the Education’s Office for Civil Rights (OCR).
That said, Busch has not scrutinized key premises, and, for that reason, the article’s analysis is limited. The main theme is one of transformation, which explains that Title IX is, practically speaking, two statutes: The original statute enacted in 1972 was a benign guarantee of educational equal opportunity for women; while the law today, 50 years later, is something else, having been in the hands of federal agencies and bureaucrats with an agenda. In this way, Busch suggests that the core problem with Title IX is procedural—the antics used by insiders to change the law’s meaning—rather than the law itself. This explains the emphasis on constitutionalism as the main dividing line between the camps fighting over Title IX today: One is either a constitutionalist who is bound by legally required processes when making policy (such as the provisions of the Constitution or the Administrative Procedure Act, which govern agency action), or one is an anti-Constitutionalist who is not bound and can therefore impose policy preferences by whatever means available, invoking the general aims of the statute as cover.
This position is not wrong as such. However, it does not consider other possibilities as core problems and in this way may be incomplete.
This essay examines educational trends and numbers before and after Title IX was passed in 1972 and then asks if the law was, in fact, needed to remove barriers for women in education, as is claimed. It will further ask if key developments thereafter were, in fact, caused by the law and also if other developments are properly considered successes. Finally, this essay will discuss the more general problem of enacting laws that may not be necessary, why so many government officials engage in “redefinitions” and therefore appear to be “anti-constitutionalists,” to use Busch’s words, and why this means that the problems surrounding Title IX are less about process and more about personnel, including one’s understanding of law—and lawlessness.
Is Title IX about Social Engineering?
Is it possible that Title IX has not so much been transformed as it has been put to a different use than the one presented at the outset, since the original, claimed purpose had already been met at the time it was passed? In fact, might Title IX have always been intended—at least by some—as a vehicle for social engineering, or a reconfiguration of male and female and their relations, rather than a transformed law going in “unanticipated directions,” as Busch claims?
The current 50th anniversary is a good time to ask these and other questions that Busch seems to have overlooked. The article is focused, for example, on Title IX’s application to campus sexual misconduct as “much needed attention to the scourge of campus sexual harassment and violence” that aimed to “correct decades of neglect.” The concern is almost exclusively with how the Education Department improperly used a Dear Colleague Letter to lower evidentiary standards to increase findings of sexual assault, and how the resulting adjudications lacked basic due process protections. And these are, without a doubt, serious and pressing issues, as the many lawsuits against schools attest. But Busch leapfrogs over whether sexual misconduct is, in fact, a form of sex discrimination that lawmakers in 1972 intended Title IX to address. It also fails to question the numbers presented in the campus sexual assault “scourge;” other academics have found them to be intentionally inflated and therefore untrustworthy.
These oversights matter for the same reason the necessity of Title IX matters: If a need for a law does not actually exist, won’t the law and its administrators necessarily move on to other things—such as sexual misconduct—or even create other needs or crises to justify themselves? And is this only a problem of process, or as Busch calls it, anti-constitutionalism?
Was Title IX Necessary?
Busch opens on a celebratory note with reference to Title IX’s successes in the “removal of arbitrary barriers to women in admissions, vocational tracks and educational activities.” The article points out that while women comprised only 39% of undergraduates in 1960, they constitute almost 60% today. And, of course, their participation in sports has likewise increased notably—even exponentially—at both the college and secondary level.
Missing from this celebration, however, is the fact that female enrollment in higher education had already begun to increase since as early as the 1940s—which is to say, well before Title IX was even passed. On this point, the work of Mark Perry has documented that women have outnumbered men in undergraduate programs on campus since as early as the mid-1970s, arguably even before the first Title IX cohort could have graduated from college. These numbers are interesting because they are evidence not only that Title IX cannot be credited with the higher number of women on campus (since the climb began earlier) but also because they undermine the claim that barriers to education and vocational tracks for women existed in the first place. In addition to the steady increase in female matriculation since 1947 (the earliest year in current government documents), most single-sex male colleges began to admit women during the 1960s and, by 1972, the few holdouts were also making plans to do so. Accordingly, another view of conditions at the time holds that:
Women who wanted to go to college in 1972 faced few actual barriers beyond their own aspirations. But in the years that followed 1972, higher education successfully marketed itself as the only practical gateway to a successful career, and the American Women’s movement successfully marketed the idea that all women should pursue careers.
The zeitgeist of the 1960s, not just with the women’s movement but also with the civil rights movement more generally, is relevant since equal opportunity laws banning race discrimination (in housing, employment, and then education) were proliferating in both Congress and the states. Title IX and other bans on discrimination based on sex (rather than race) were an obvious outgrowth of this 1960s civil rights culture and encountered little opposition, as the clear congressional majorities in favor of Title IX attest.
It should be noted, however, that women were already familiar in the education setting: Historically, they had always dominated the teaching profession through the secondary level, for example. At the post-secondary stage, they were professors mostly in women’s colleges though they did also appear as students in co-educational institutions—even in the 1940s through the 1960s—albeit in lower numbers than men. (For example, government documents show that women comprised less than a third—approximately 29%—of those enrolled in degree-granting institutions in 1947.) Those lower numbers do not necessarily reflect adverse discrimination, however. They could just as easily reflect a preference for vocations not requiring a college education, including marriage and family or the religious life, trajectories now discouraged as old-fashioned. That women appear at all in college graduating classes suggests that the barriers so often cited for women in education may have been exaggerated.
Necessary for Athletics?
Title IX as the cause of increased female participation in sports is more clear-cut as the area of athletics was the first to grapple with Title IX implications and represented the first of many controversies to result from the 1972 law (which itself had not seemed that controversial at the time).
Characterizing this development as one of the law’s successes is problematic, however. Busch recognizes this by noting that “schools may eliminate male teams with impunity.” In fact, the upset caused by Title IX’s interpretation to mandate identical numbers of male and female athletes can hardly be overstated, as athletic opportunities for male students plummeted while some reports show that many young women are basically being forced to “pick a sport” so middle-class families can tap Title IX funds and thereby avoid ever-escalating college tuition. As The Atlantic magazine explained: “With more scholarship money available than ever, girls feel pressured to specialize at a young age in the hopes of winning a spot . . . in the increasingly competitive college admissions game.” Space does not allow a detailed study of this aspect; the point, however, is that the increased number of women in sports may not be an unqualified good and therefore its status as a Title IX success can be questioned.
The Risks of Unnecessary Legislation and Government Activism
As the above suggests, passing unnecessary laws poses risks: Lawmakers intend laws to mean and do something. If a law is not needed, it remains on the books waiting to be put to use—and often enough, a use other than what was originally intended. This phenomenon of the body politic has its analogue in the physical body: Cells within the body without a purpose often become cancerous.
That said, one could also point out that, where there’s a will, there’s a way: Those 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 itself as many observers of Supreme Court jurisprudence on abortion or same-sex marriage would argue, pointing to expansions of the word “liberty” through “penumbras” and “emanations” to include acts never contemplated by the Constitution’s drafters. In this vein, Busch notes only in passing the redefinition of “sex” in Title VII of the Civil Rights Act of 1964 (banning employment discrimination) to include gender identification by the United States Supreme Court in Bostock v. Clayton County. But how are redefinitions by the Court for Title VII different from redefinitions imposed by OCR for Title IX? Both involve government actors simply stretching terms beyond the meaning intended by those who first used them, reminding observers of Lewis Carroll’s Alice in Wonderland: “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
Undermining Institutional Legitimacy
The reality of these antics can certainly be labeled “anti-constitutionalism,” but it could also be called, more simply (and perhaps, more harshly) lawlessness. It’s hard to recognize this, however, since such action is always done with the trappings of law by official government actors. And yet the current, much-discussed crisis in confidence in our institutions suggests that just such recognition is growing. For years, skepticism was mostly for politicians; now, a lack of confidence extends to formerly immune areas such as medicine, the courts, and educational institutions. Title IX has certainly played its part in this development.
Perhaps it’s time to ensure that personnel in government—at whatever level—understand that redefinitions do not constitute law in Title IX, or in Title VII, or anywhere else.