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June 8 2015

The Transformation of Title IX

Charlotte Hays

Today’s must-read is Jessica Gavora’s piece in the Wall Street Journal on the transformation of Title IX from a law to ban sexual discrimination in schools that receive federal funds to a tool to suppress free speech on college campuses.

Gavora is author of “Tilting the Playing Field: Schools, Sports, Sex and Title IX,”  which came out in 2002 and was the subject of an IWF event to discuss the book that same year. Since then, there have been important developments in the way Title IX is used.

In this morning’s piece, Gavora shows how Title IX has in its 43 years proven to be “a remarkably elastic law.” It was used early on not just to end discrimination, a worthy goal, but to force schools to achieve numerical parity in male and female teams on campus, even if this meant ditching the wrestling team for a women’s team that had a small following. But this seems positively innocent compared to how Title IX has come to be used. Gavora writes:

A tipping point was reached earlier this year when a Northwestern University film professor and feminist, Laura Kipnis, dared to criticize new Title IX regulations governing campus sex. The regulations, promulgated in the name of preventing a “hostile environment” for women, broadly defined sexual harassment as “any unwelcome conduct of a sexual nature.” An unwelcome touch or comment was grounds for a Title IX investigation, with college administers forced to be police, judge and jury in allegations of sexual harassment from offensive speech to rape.

In February Ms. Kipnis wrote in the Chronicle of Higher Education that the new rules infantilize women by encouraging them to “regard themselves as such exquisitely sensitive creatures that an errant classroom remark could impede their education.” Instead of preventing a hostile environment, she wrote, such rules instead have created an atmosphere of “sexual paranoia” that is spinning out of control. “In the post Title IX landscape,” she noted, “sexual panic rules. Slippery slopes abound.”

For her candor about the overreach of Title IX, Ms. Kipnis was hit with . . . a Title IX investigation. In an argument that would have made Joseph Stalin blush, two Northwestern students charged that Ms. Kipnis’s criticism of Title IX violated Title IX. The university launched an investigation and subjected Ms. Kipnis to what she has called an “inquisition.”

Kipnis was acquitted but the case does dramatize what has happened to Title IX. A milestone in the transformation of Title IX  was a “Dear Colleague” letter an official in the Clinton Department of Education wrote to colleges and universities grappling with discrimination in college athletics. The letter set forth quotas as the only safe way to deal with the matter. Anything other than quotas might end up having to be resolved with a lawsuit. Even if the school were to win the DOE suit, it would be expensive.

Brown University learned the hard way how expensive and traumatic such a suit could be in the early 1990s when feminists and trial lawyers sued the university. Brown offered more women’s sports than men’s sports but the plaintiffs claimed that the school had degraded two women’s sports teams.   Brown lost and the outcome was that the university was told that it was not enough to provide men and women equal opportunities in athletics but to educate women about their perhaps heretofore only latent interest in sports. Gavora writes:

With that, Title IX was transformed. It no longer mattered if schools offered equal or more-than-equal opportunities for women in athletics. If colleges couldn’t produce enough actual female bodies on the playing field, the schools were forced to cut male athletes until the participation rates of both sexes were the same. No legislation, let alone public discussion, made this so. When it comes to Title IX, quaint notions of the people’s representatives having anything to do with the law ended when the law passed.

As Gavora writes, the second milestone in the transformation of Title IX is similar to the first—a “Dear Colleagues” letter, this one in 2011 by yet another Department of Education official. This “Dear Colleagues” letter meant that schools would be responsible for sexual transgressions on campus. Instead of handing rape charges to law enforcement, campuses were to deal with them and the Obama administration set up lower standards of evidence that violated the civil right and due process for the accused. Gavora writes:

Title IX investigations of accusations of sexual assault and harassment on campuses exploded. Just as they had with Title IX in sports, activists went in search of victims to be the media face of a rape crisis—and to become plaintiffs in litigation against schools.

The notorious and now-debunked story of the University of Virginia’s “Jackie” gang-rape is a case in point. Rolling Stone reporter Sabrina Rubin Erdely was, in her words, searching for a victim who would show “what it’s like to be on campus now . . . not only where rape is so prevalent but also that there is this pervasive culture of sexual harassment/rape culture.”

The new demands to combat what federal education officials also call a “rape culture” on campus are so excessive that even current and former Harvard Law professors have publicly complained that their school’s attempt to comply has undermined due process and is “overwhelmingly stacked against the accused.” But for Ms. Kipnis, it is the reduction of women to helpless, permanent victim status that has roused her and other feminists to anger.

Feminists might not be so surprised today if they had paid more attention when college women, as a feature of Title IX enforcement, were being treated like impressionable children incapable of choosing to join a sports team. Most of the attention was focused on supposedly sexist men, and when Title IX targeted male athletes, academics like Ms. Kipnis didn’t speak out. Now academics are in the cross hairs. Who will be next?



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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