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Title IX: What was it meant to do and the nightmare it has become

Congress passed Title IX in 1972. The idea, as I recall, was that Congress wanted to end, to the extent that federal dollars were involved, sex discrimination in education. Here’s what the Department of Justice says about it:

On June 23, 1972, the President signed Title IX of the Education Amendments…into law. Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices. Title IX applies, with a few specific exceptions, to all aspects of federally funded education programs or activities. In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools, Title IX also applies to any education or training program operated by a recipient of federal financial assistance. The Department of Education has issued regulations on the requirements of Title IX….

I recall an emphasis on sports at the time. It sounded like a neat idea to this then 12 year-old girl; my girls track team had to sell candy to buy cleat running shoes and then share the shoes with one another. Needless to say, the shoes did not fit well. The boys track team all got a pair of their own cleats given to them; no candy sales, no sharing.

Where are we 46 years later? Often seemingly good ideas stray far from their original purpose and lead to unforeseen uses, or in this case to terrible abuses of power.

In many ways, we have handled the issue of sports, though there has been clumsy handling (for lack of a better phrase), when, for example, men’s sports at colleges and universities are eliminated to make way for a women’s team. In any event, girls are very much part of sports starting at very young ages so over time perhaps these things will work themselves out with an understanding that men and women do not always like the same sports, that equality is not always the best outcome. (That men and women are fundamentally and wonderfully different but that is another matter for another day.)

But my chief concern, which has been in the news of late, is the way Title IX has evolved into a tool of terrible abuse in the realm of allegations of harassment or sexual assault on college and university campuses. Does the language of the statute support such an extension of power?

Even if Title IX statutory language can reasonably be interpreted to empower colleges and universities to essentially act like police, investigators, judges and juries, is that a good idea?

The nightmare accounts of abusive and biased college administrators are legion. And the victims of over-zealous prosecutions of college students are overwhelmingly college men, though there have been many cases brought against women faculty members who run afoul of the thought police. In these Title IX proceedings you are guilty until proven innocent. Lives have been ruined with false allegations. Remember the Duke LaCrosse Scandal? Those men are still trying to get their reputations back. Relations between men and women get weirder by the day (see consent to touch rules, etc.).

Secretary of Education Betsy DeVos promised to rein in the abuses by requiring basic due process for the accused, as well she should, and she is trying.

With the proposed Title IX rule, Secretary DeVos is seeking to prevent… injustices and court cases. The new rule would mandate that all Title IX hearings include cross-examinations, either in person or by live stream. That would let adjudicators assess the demeanor and credibility of witnesses. Universities would also have to keep the alleged victim and the accused informed about the investigation and any expansions in scope, giving the opportunity to inspect and review all evidence. (WSJ December1, 2018)

That is all good, but I still do not understand why colleges and universities have essentially a separate criminal justice system for matters that ought to be handled by the local police and courts. I understand that safety and student honor code violations, and faculty code violations, fall under the purview of the college administration, but does it not feel like Title IX has turned into a Star Chamber?

Why do colleges and universities have any power beyond providing for the safety of students and enforcement of student honor codes? Colleges and universities have used Title IX to cloak administrators with police-like powers of the state, subjecting citizens to a dual system of criminal and civil justice and putting academic and future careers at great risk without any of the normal protections of due process.

The Department of Education should not be alone in its mission of restoring sanity to our college campuses. Betsy DeVos can make new rules, but the next administration can ignore or change them. Congress should revisit Title IX to pull these corrupting police power from our colleges and universities, and explicitly prohibit any duel justice system. Federal dollars should protect and uplift our students and faculty not subject them to nightmarish prosecutions.

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