Title IX for males
The 35 words of Title IX are deceptively simple, but they have often proven to be controversial. They state: “No one in the United States should be excluded or discriminated from participating in educational programs or activities that receive federal funding because of their gender.” The law, passed in 1972, was renamed the Patsy T. Mink Education Equal Opportunities Act in 2002 after the Congressman who drafted it in the House of Representatives.
Because money is fungible, the law has been interpreted to mean that if any part of an institution receives federal funding, none of its institutional programs can discriminate “on the basis of gender”. Institutions are required to regularly certify to the U.S. Department of Education that they are actively enforcing Title IX as a condition for receiving federal funding, and the law is enforced by the Department’s Civil Rights Office (OCR).
Most of the public’s attention to the enforcement of Title IX has centered on the impact on athletics, which has had to reorient institutional policies to create new opportunities for women. Attention is also focused on applying to campus jurisdiction guidelines for alleged sexual offenses committed by students, many alleging they failed to provide due process to the defendants (usually men).
Now there is a completely unexpected enforcement of Title IX – this time in favor of men. The longstanding narrative in higher education has been that women are a marginalized group on campus. Realizing female potential has required investment in special programs and administrative support for women that are not available to men. Sometimes this narrative was based on accurate but outdated statistics. In other cases, it was based on selective data showing an underrepresentation of women in some disciplines while their overrepresentation in other areas was ignored. Another motivator was the strength of the feminist movements on campus, for which there were seldom male colleagues.
As a result, an impressive range of higher education programs for women in public and private locations have been designed and funded over the past four decades. Asking questions about their exclusive nature meant immersing your body in a hornet’s nest, an activity neither administrators nor lawmakers enjoyed. How did such programs weather the requirement of Title IX that “no person … may be excluded from an educational program on the basis of their gender, the benefits of an educational program denied or discriminated against?”
The answer to this question was that the programs for women only in higher education were largely ignored until challenged from very unusual sources. Mark J. Perry is Full Professor of Economics and Finance at the University of Michigan-Flint. His dissertation dealt with “Macroeconomic Applications of Autoregressive Conditional Heteroscedastic Models (ARCH)”, which shows no strong interest in civil rights. However, Perry has also been a Resident Scholar at the American Enterprise Institute (AEI) since 2010 and is a prolific blogger. His efforts to challenge same-sex campus programs have been summed up on his November 6, 2020 AEI blog. He had filed 244 such complaints, which at that time had resulted in 30 successful resolutions, and he expected that another 100 complaints would be successfully resolved by discontinuing the same-sex program or making it available to both men and women.
The empirical basis for Perry’s questioning of the feminist narrative and his later actions in filing complaints with OCR was based on some federal statistics he presented on his AEI blog of October 15, 2020. For example, for every 100 women enrolled in U.S. colleges at any level, there were 75 men enrolled. In graduate schools there were 100 women for every 71 men. For every 100 women who received a master’s degree, there were 65 men; at the Ph.D. The level was the ratio of 100 women to 85 men.
If the policy of silent OCR is abandoned by the Biden administration, it is likely that these Title IX challenges will continue in the form of publicly exposed, expensive litigation.
Perry is also interested in larger societal interventions that place men at a disadvantage or underperforming. For every 100 women with advanced qualifications who were not gainfully employed, there were 233 men. Or darker: for every 100 women who were homeless and unprotected, there were 232 men. The differences in illegal drug and alcohol addictions range from 100 women to 180 men. For every 100 women in state or federal prisons, there were 1,314 men. The sad state of men is also reflected in American families. About 25 percent of all children grow up in fatherless families. for African Americans, it’s 65 percent. The pandemic appears to have exacerbated the educational imbalance between women and men. Hence, any objective proponent of same-sex programs in higher education would have to conclude that they are primarily intended for men, but there are hardly any.
Also on his November 6th blog, Perry wrote about the outcome of his complaints against Duke University in May 2019. Duke rightly promoted his formal policy that “in accordance with federal law, the university would not” include anyone in the protected categories such as ” Gender, sexual orientation, gender expression and gender identity “discriminates. But with his left hand, Duke sponsored a girls science and technology research event, Girls Stem Day @Duke, and Dukes FEMMES (Females Excelling, More in Math, Engineering and Science) that excluded men. Duke has now signed a Voluntary Resolution Agreement (VRA) before completing the OCR scan. In the VRA, Duke has agreed to either discontinue the programs concerned or to make them co-educational.
On December 8, 2020, Adam Kissel, formerly assistant secretary for higher education programs at the U.S. Department of Education, announced in his current private capacity that he had recently filed complaints about sex-exclusive programs at the University of North Carolina at Chapel Hill. the University of North Carolina at Charlotte, North Carolina State University (NCSU), and Wake Forest University. One element of sex-related programs is that they often say they are open to any gender, but only if the participants agree with certain ideological points of view. For example, the NCSU Virtual Women of Color Retreat event on October 28, 2020 was open to people who “identify with a statement,” the “women of color (transgender women, non-binary people, two-minded and others underage genders) have experienced gender-specific marginalization while experiencing the current and historical effects of racist and ethnic marginalization. “The condition of attending a university public event, having regard to a particular historical or political point of view, may raise concerns about the First Amendment as well as Title IX.
Perry, Kissel, and likely other unknown people have filed complaints and received responses from OCR as individuals, but a 501 (c) 3 organization called SAVE, founded in 2008, was also active. In addition to its focus on Title IX disciplinary procedures, SAVE has filed complaints directly with OCR and on campus about gender-specific higher education programs. The website contains a useful list of news about such actions and their results. For example, women-only scholarships have been removed from Illinois State University, Michigan State University, Ohio State University, University of Georgia, and many others. SAVE has also published a list of OCR resolved cases since 2013, involving 24 public and private entities.
The complaints procedure is not complicated. A signed or anonymous complaint can be sent to a regional OCR bureau, which lists the programs in question. OCR will respond as to whether the allegation is timely and whether OCR is competent and will initiate an investigation. Also included is a stern admonition warning universities not to take revenge on the complainant. On January 14, 2021, OCR published a question and answer document summarizing the guidelines for such programs.
Given existing OCR decisions to terminate or change gender-only programs, it is unlikely that this complaints process will be terminated until most of these programs are changed or exonerated. Perhaps in response to this trend, the National Women’s Law Center just released a report entitled “Making the Case: Gender Aware Programs in Higher Education.”
An obvious question is what kind of Title IX enforcement activities will continue in the Biden administration. Changing the language of Title IX is not a novice politically, although Biden pledged in his campaign to repeal Title IX regulatory proceedings enacted during the Trump administration. New political representatives at OCR will now oversee the response to complaints about gender programs. However, regional attorneys have public service status and many of them have already set precedents for ruling on these complaints. Investigation resources can be diverted, but determinations can be slow to complete, even when precedents are clear.
While on the surface some higher education allies in Biden might welcome the reduction in enforcement, it may not be in their long-term interests to do so. Currently, these investigations result in letters of assessment in which the campus does not admit wrongdoing or receive none of the sanctions that other violations of civil rights can generate. The campuses simply agree to discontinue sex-exclusive programs. Sometimes the changes can include deleting a program entirely. Sometimes there are only linguistic changes that mask the old same-sex intent. However, if the policy of silent OCR is abandoned by the Biden Administration, it is likely that Title IX challenges for women-only programs will continue in the form of publicly known litigation that has been subject to significant financial penalties on behalf of the government A class of excluded men can be imposed. A much better solution is for the campus to initiate a review of its programs and policies to open up those who are educationally successful regardless of gender based on individual talent or needs.