Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate
2018-12-01 · Guest: R. Shep Melnick (Professor of American Politics at Boston College) · 51:06
The Transformation and Evolution of Title IX
Bob Zadek interviews Professor R. Shep Melnick about the dramatic evolution of Title IX from a simple anti-discrimination statute into a tool for broad social engineering on college campuses. They discuss how the administrative state uses “Dear Colleague” letters to bypass legislative processes and how the definition of “sex” has been expanded to include gender identity, impacting campus life and academic freedom.
Topics: Title IX, Civil Rights, Administrative State, Higher Education, Gender Identity, Sexual Harassment, Department of Education, Dear Colleague Letters, Constitutional Law
Speakers:
- Bob Zadek: Host
- R. Shep Melnick: Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX
- Caller (Jacob): Listener
Introduction to Title IX [00:18]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running and longest-running by far libertarian live talk radio show on all of radio. Thank you so much for listening this wonderful Sunday morning in the fall.
Today’s topic is Title IX, or more precisely, Title IX. At the end of this hour, you will understand—all of my friends out there will understand—so much of what is wrong with the top-down government we have, with the government in Washington, with the regulatory state, with the bullying in Washington, and you will learn the root of it all is, as it always is or often is, the income tax.
What is Title IX? Why do you care so much about it? To help us understand Title IX and the regulatory state and its bloated influence on life in America, I am happy and proud to welcome to the show Shep Melnick. Shep is the Thomas P. O’Neill Professor of American Politics at Boston College. Shep has taught at Harvard and at Brandeis. He is the author of The Transformation of Title IX. Shep’s studies focus on the intersection of law and of politics. Shep, welcome to the show this morning.
R. Shep Melnick: Thanks so much for having me on.
Bob Zadek: Now Shep, your book is The Transformation of Title IX. I’m going to start to get our audience into the game. I’m going to start with two questions: Title IX of what, and the transformation from what to what? So first, Shep, what is Title IX? Title IX of what and why do we care?
R. Shep Melnick: Good questions. Title IX is one section of omnibus education amendments passed in 1972. This was really a hodgepodge of changes in education laws. Title IX itself simply says that any educational institution that receives federal funds cannot discriminate on the basis of sex. What that meant was left unclear. There was very little discussion of it in Congress at the time. When President Nixon signed that legislation, he didn’t even notice the importance of Title IX, nor did the New York Times when it reviewed its story on the passage of the legislation. So it’s a very simple prohibition, open-ended, and we’ve been arguing about its meaning ever since.
The Hook of Federal Funding [02:59]
Bob Zadek: Now, an important word, Shep—and I want to highlight this for our audience—a word we will be coming back to a lot is the operative verb, which is “discrimination.” A recipient of federal financial assistance cannot discriminate. And the other important phrase is “under any education program or activity.” So this is a provision, one small provision in terms of number of words, a small provision in a large education bill that simply says you can’t discriminate on the basis of sex. Well, that ought to have gotten at the time—and I think you said that it did—a big shrug, because everybody who reads this in 1972 would say, “Well, of course we can’t discriminate, and we have no intention of discriminating, and we don’t think we do discriminate.”
So we start with benign legislation that sort of states the obvious. And it says discrimination based upon sex. Of course, we will learn during this show—and I want to give the audience coming attractions—the word “discrimination on the basis of sex,” the word “sex” becomes a very pernicious word in the context of Title IX.
Okay, Shep, so we start with Title IX, pretty basic stuff. You can’t discriminate if you’re a school, of course, and you are receiving federal financial assistance. Now Shep, I’d like to take a slight digression just for a moment. This “can’t discriminate if you receive federal funds”—now the reason it is keyed to receiving federal funds is, I think it’s true but we can discuss this for a moment, that Congress lacked the power to affect the behavior of private schools in the country, and many of the colleges are of course private colleges. And if the statute simply said a private school can’t discriminate on the basis of sex, that might not be constitutional. Is that a fair guess, and why is the hook of receiving federal assistance so important?
R. Shep Melnick: That’s a really good question. What I would say is using the hook of federal funds certainly made it far less controversial. So that was an easy thing to add. If they had been more prescriptive and saying whether you receive federal funds or not doesn’t matter, that would have been much more controversial. Now, one thing that happened at the same time as Title IX was passed was the Supreme Court was increasingly saying that discriminating on the basis of sex is unconstitutional. So there was a big change in constitutional law. So it is quite possible that if they had had a blanket prohibition, that would have been ruled constitutional by the Supreme Court because constitutional law was changing so rapidly at that time.
But let me just add one caveat here, which is most people don’t understand that Title IX does not apply to admissions to private undergraduate schools. So we have a lot of female-only schools—Wellesley, Mount Holyoke, Smith—we have a couple of male-only schools. And the statute does provide a number of areas in which the strict prohibition on sex discrimination does not apply. It raises the big issue of the way in which we view sex and race quite differently, because Title IX was based on the analogy to similar prohibitions on racial discrimination in the Civil Rights Act, but we view sex and race discrimination as somewhat different.
From Discrimination to Social Engineering [09:28]
Bob Zadek: You mentioned that the statute could have eliminated federal financial assistance and would have been perhaps more controversial. But the Constitution doesn’t regulate the behavior of non-federal government—under the Bill of Rights, state and local government—the Constitution doesn’t regulate the behavior of private organizations such as a private college. So I think the reason we have the link of receiving federal funds is, then Congress has—or the regulators, we’ll get to that—have the power to not worry about the constitutionality, but just say, “We are simply telling you you’re not getting any money if you do not follow the constraints of Title IX.” So the financial assistance is Congress using its power as a disperser of huge amounts of money to influence the behavior of organizations that otherwise are not regulated directly by the Constitution. It’s sort of like my parents saying, “Unless you mow the lawn, we’re going to cut your allowance off.” So my parents are not citing a statute; they’re citing the fact that they have financial control over me, they have my dollar a week they can withhold, and therefore I have to do what they say. So Congress is using the economic power they have to bully organizations that are not directly regulated by the Constitution to use this influence of withholding funds to force private colleges to follow the constraints of Title IX.
Okay, so now we have the statute. Now your book explains and complains about the transformation of Title IX. Now Title IX is one sentence. So from what did it transform and into what did it transform?
R. Shep Melnick: Right, that’s the key question. Title IX was originally designed to end institutional barriers to education by women. And in 1972, there were important barriers. Many programs explicitly prohibited women from being part of it. There was rampant sex discrimination in hiring in higher education. So there were real institutional barriers. Those barriers fell very rapidly, and today women are advancing in education much more quickly than are men. They’re really outpacing men in almost all aspects of education once those doors of opportunity opened. Women really flocked through.
The transformation was to go from these institutional barriers to educational opportunity to trying to change stereotypes about sex and gender and sexuality in general, not just amongst students and faculty, but among the public at large—to try to reshape how all of us think about sexual stereotypes and sexual norms and sexuality. So that’s a pretty big change.
Bob Zadek: And I should point out that how one thinks about gender identity—we’ll discuss that in a moment, that’s a key phrase, sexual identity and gender identity, we’ll get to that in a moment—but how one thinks about that is nothing to do with discrimination, certainly discrimination as used in the 1972 statute. So what you have said is that now that the hook is there, Title IX is passed in 1972 focusing on the very real problem of discrimination against women—although it says either sex, it’s women primarily, of course—it morphs, and this maybe is part of the transformation, from a statute regulating or prohibiting discrimination to a statute trying to influence social mores and society in general and general interaction amongst sexes and transgender issues. So is the transformation from discrimination to, in effect, societal influences, changing how people behave? Is that what the transformation is that you focus on in your book?
R. Shep Melnick: Right, that’s a pretty description of it. But the underlying argument is that if you really want to have educational equality, you have to change underlying stereotypes and the way people think about sex and sex differences. So that to the under—you have to get at the root causes, and the root cause is people’s perceptions of these issues. So you have to change how people think about not just sexual stereotypes, but what sex is generally, which gets us into the issue of gender identity.
Bob Zadek: Now Shep, what you just said, of course, as you explain profoundly and with great clarity in your book, you said twice in one sentence: “We have to change how people think.” The founders are moaning and groaning and rolling over in their collective graves. If one thing was sacred during the founding era, it was freedom of conscience, which means freedom to believe whatever you choose to believe. And if the founders were clear about one principle, it was people are free to believe and to think whatever they want, and it is not the business of government to affect what people think, even if it’s wrongheaded. Certainly society individually and collectively would have a duty to have people think in a way that’s not harmful to society or harmful to each other, but that’s a societal issue, that’s a private, i.e., non-governmental concern, not a governmental concern. But as you have explained twice in one sentence, the transformation is into something akin to thought police, which gives me shivers. What is it the business of government as to what people think and how they behave towards each other, so long as there is no overt discrimination?
R. Shep Melnick: Bob, I should say that unlike you and many of your listeners, I’m not a libertarian. I tend to be more of a liberal Democrat. But on this point, I fully agree with you that the founding principle of this country is limited government, which means above all that we limit the role of government to try to change—to affect overt behavior and not try to change people’s basic thinking about things. And I think especially that’s true when you have rules that are made by judges and administrators without really any support whatsoever from elected officials. So what bothers me more than anything else about these regulations is how prescriptive they have become, how they have tried to, as the guidelines often say, “change the culture” on the basis of a very thin legislative platform.
The Administrative State and Institutional Leapfrogging [15:23]
Bob Zadek: So now we go—we start with a statute, 1972, pretty benign. Nobody would disagree that its goal is quite laudatory. And it was pretty effective, as you have pointed out a moment ago, in carrying out its goal. It did substantially—never totally, ever—but it substantially altered the discrimination against women on college campuses. And women realized, perhaps as a result of the statute—perhaps it would have happened anyway, we’ll never know nor do we really care—but the fact is the statute accomplished its goal. And it was done.
And so today, if this statute were considered being passed today, there would be a shrug. “Why are we passing this statute today? We don’t need it anymore. There is not discrimination.” Everybody would agree with that, I think, for the most part there is not discrimination and it’s not likely to return if there was no statute. So that’s where we are today.
But we have a statute, pretty gosh-darn useful. So now we find further transformation as we find other uses for the statute since it fulfilled its primary goal. And as Shep will now explain to us, we start with a statute which has as its tool, as its threat, the withholding of substantial federal aid because the federal government is too much involved in the finances of private and public colleges. So that’s a serious threat.
So we start with the threat of withholding financial assistance, which as Shep has pointed out has never happened. But now the regulators—those faceless, nameless bureaucrats we talk so much about—they have discovered they can use the statute and the threat of withholding assistance to, in effect, take matters into their own hands. They discover some wonderful tools. And Shep, explain to us, to our friends out there, what has evolved with guidelines and regulations and—we’ll get to the “Dear Colleague” letter in a moment—how have the regulators discovered to be able to take the power of withholding federal assistance to go well beyond the constraints of the statute?
R. Shep Melnick: Sure, this is a fascinating but complex question. I’ll try to simplify it. The first thing to note is that there are not one set of actors, administrators, but two sets of actors: administrators and judges. Because it was quickly recognized that withholding federal funds was too politically dangerous and administratively cumbersome to use in any but the most extreme circumstances. So another enforcement mechanism was needed, and that was the so-called “private right of action,” which means that any private citizen can bring suit against a university or school system to require them to follow Title IX. The courts recognized that, even though it was not in the statute. It became the fundamental enforcement mechanism of Title IX: to go to court.
That meant that there were these two sets of actors that would build upon each other. And I call this process “institutional leapfrogging.” The administrators would take one step, the courts would take another step, then the agency would go beyond that, and each would say, “Well, we’re just following what the other one did.” So you get this large set of changes with little effort to say, “What is the long-term consequences of all of these changes?”
And on top of that, rather than following the legally prescribed method of establishing rules and regulations by the Administrative Procedure Act, the Office for Civil Rights in the Department of Education, OCR, bypassed that and started to use so-called “interpretations” and the now-ubiquitous “Dear Colleague” letters. So they would just say, “Well, here’s how we interpret the statute. Here’s how we interpret the regulations.” And to a large extent, the courts have deferred to those informal guidelines. So you get a whole series of incremental changes that add up to a huge change, and everyone denies that they’re doing anything new. It is a really uniquely opaque regulatory system.
Bob Zadek: And the regulatory state is quite extraordinary if one thinks about it. So we have, let’s say, the Department of Education—but what I’m going to explain applies to almost every federal and state regulatory agency—we start with the agency which is hired, not elected, to supervise compliance with various statutes. So the regulators have to enforce and police a statute—an executive function. The regulators then promulgate rules, regulations under that. And in many cases, the regulations go well beyond the statute itself, and the courts have given broad deference to the regulators. So the regulators, in effect, pass legislation disguised as regulations. And then if you have a fight with the regulators, you litigate it often in through administrative law judges who are judges, but they are part of the agency itself. So the agency performs lawmaking functions, executive functions, and judicial functions. And as James Madison observed—and this one-sentence quote is really important—Madison said, I quote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, of few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Madison and others feared all power residing in the same body. That’s why we have the separation of powers. The regulatory state undoes or combines all three powers, so there is no separation of powers, and thus you have the expansion of the importance of the regulatory state.
And you will follow that throughout Shep’s explanation of how this all worked. This is Bob Zadek, I’m speaking with Shep Melnick. Shep is a professor of law at Boston College in Boston, Massachusetts. He has written The Transformation of Title IX. We are talking about sexual discrimination and changing how people view gender identification. With Shep, we’ll be back in 30 incredibly short seconds. Lots more to follow.
Sexual Harassment and the Expansion of Responsibility [23:54]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. This morning we are spending an hour talking with Shep Melnick. Shep is a Thomas P. O’Neill Jr. Professor of American Politics at Boston College in Boston, Massachusetts. He has written The Transformation of Title IX, where he discusses how a somewhat benign and important statute—provision in a statute from 1972—has been used as a way for the feds to elbow their way into very private and personal aspects of campus life in college campuses across the country.
So Shep, you have explained to us that Title IX was effective, or the society changed anyway, it doesn’t really matter, but there is little or no claims of discrimination as that word is commonly used on college campuses. But the story doesn’t end there. We don’t end with a statute that had a laudatory goal and achieved the goal in spades. The story should stop, but it does not. And now Title IX, that one-sentence statute barring discrimination, finds its way being used to examine things like sexual harassment and its related issue of harassment and tolerance of gender identity. So what in the world does sexual harassment on college campuses—which is kind of a not-so-much institutional as a one-off event often by college students dealing with other college students—what in the world does that have to do with discrimination?
R. Shep Melnick: Let me just first—let me add something to your discussion of the institutional analysis before the break. I’d just add two important caveats. The first caveat is that this wasn’t done by administrators by themselves. Courts, I think, were equally culpable, and I’ll try to indicate that through the discussion of sexual harassment. The other thing I’d point out is that this was not administrators operating simply on their own. The sexual harassment initiative had very strong support from the White House and from the Office of Vice President. So this was a presidential initiative as well as an administrative effort.
So let me kind of give the background on the sexual harassment argument. It starts with, I think, a reasonable position: that if there is such rampant sexual harassment in an office or on a campus that it makes it virtually impossible for a student, either male or female, to receive an education, then that is discriminatory. And if it’s based on the sex of the student, then that’s sexual discrimination. So if you take the extreme view, you can see the origin of this, and that’s not unreasonable.
The problem is that when, as you pointed out, we’re talking not about action by the institution, but action by hundreds and thousands and tens of thousands of faculty, students, and staff. So the big question becomes: what is the responsibility of the institution to police the behavior of all of these people? And I think the Supreme Court in 1998 and 1999 came to a reasonable position on this. They said if the school knows of this harassment and it’s serious enough to prevent people from getting an education, then they have a responsibility for addressing it and stopping it. I don’t see anything wrong with that position.
But the Office for Civil Rights in 2011 and 2014 went way, way beyond that, saying the responsibility of the school is to eliminate and prevent and to cure all consequences of sexual harassment, which is a much expanded responsibility that really no school can adequately comply with.
Bob Zadek: What troubles me—I agree with you at its core, it’s pretty reasonable, it’s impossible to object to that. However, what that does is that requires schools to take on a law enforcement—because presumably most of the sexual harassment, unless it’s done by the faculty, but sexual harassment, we can divide between faculty-student on the one hand and student-student on the other. Now where it’s student-student, it’s—you wouldn’t require a university to police larceny and to have its own police force to stop larceny and assault and battery. That’s a police function. And schools are not necessarily equipped to run a private police force—often they do, almost always they do, but they’re not really that good at it. And that’s a law enforcement function. Would a school have satisfied the mandates of eliminating sexual harassment if it simply aggressively called local law enforcement every time it happened? Would that have been enough, and would that have kept school out of being a private criminal justice system?
R. Shep Melnick: Right, clearly the answer to that is no. And that applies not only to the Obama-era “Dear Colleague” letters you mentioned, but also to the proposal just put forth by the Trump administration. Both sets of proposals require much, much more of colleges and universities and primary and elementary schools. And the reason is because the definition of sexual harassment and even of sexual assault—that definition is much lower under the Title IX regulation than under most criminal statutes. So what schools are required to police is a lot of behavior that would not qualify as criminal in almost any state.
The “Dear Colleague” Letter and Bypassing the APA [32:23]
Bob Zadek: So now we’re getting to the heart of it. We’re getting to the fact where we have this painfully subjective standard which is below the level of criminality. It’s just bad behavior, but not criminal. Bear in mind, the criminal statutes are pretty strong themselves, and the criminal statutes, I dare say, capture almost all behavior that we would find objectionable. But my question is: why isn’t the criminal statutes sufficient? And if not, why isn’t the cure for states, if they choose to do so, to make the criminal statutes conform to societal norms? What’s special about the educational environment that means not only do you have to obey the law, but you have to, as a student, you have to behave at an even higher level above that which is merely criminal?
R. Shep Melnick: Well, that’s a good question, but let me make a key distinction between what schools might want to do and what they should be federally mandated to do. I think it’s entirely reasonable for schools to say, “We have certain standards that apply to our students. We are an educational institution, and we want to educate people about what we consider to be acceptable activity.” So if Brigham Young University says no sex outside of marriage and they enforce that, that’s their choice. My university, Boston College, actually has a rule: no sex outside of marriage on campus. Of course, they never, ever enforce that. And there could be norms of conduct that schools want to enforce. And I think the big question is whether those norms of conduct should be federally mandated the same for all universities, or whether schools should have some discretion of how to interpret what is acceptable and not acceptable behavior. And what the Obama administration tried to do is establish very detailed rules about what is considered acceptable behavior, and I think that they seriously overreached in that effort.
Bob Zadek: You know Shep, I hate to break it to you, but you were very clear that you are “not a libertarian,” but you sure could have fooled me. Maybe you should be coming out, Shep—you are a libertarian! In that regard, I believe in academic freedom, and I really believe that the strength of the American higher education system is its diversity. So let universities establish a variety of standards, and then we have actually a really vibrant market for choosing universities. The market works here.
Bob Zadek: And the market will dictate. If parents like the Brigham Young BYU model, so be it. If they like the Oberlin College model, so be it. There’s a marketplace out there, and both will probably survive because the market is quite huge. And the question is of what business is—I’m sorry?
R. Shep Melnick: I’m not sure Oberlin will survive, but I’m sure BYU will.
Bob Zadek: BYU for sure will survive. Now, you mentioned a second ago—and I want to just because it’s so pernicious—explain, I’ve made reference two or three times to the “Dear Colleague” letter. And I first learned about “Dear Colleague” letters in, I think, 2011 when the Obama administration wrote their famous or, if you will, infamous “Dear Colleague” letter about sexual harassment and the “rape culture.” So just explain to our audience what a “Dear Colleague” letter is and how it is, in effect, a statute disguised as an interoffice communication.
R. Shep Melnick: Sure, good question. One form of rulemaking that is authorized by the statute itself is to issue a rule under the Administrative Procedure Act, and that requires you have a proposal, you make it public, you take comments, you explain what you did, and that’s subject to judicial review. Most of the time in recent decades, the Office for Civil Rights has not used that at all, has merely issued a unilateral letter to all colleges, universities, primary and secondary schools that receive federal funds and said, “Dear Colleague, this is how we interpret the statute. This is what you are required to do.” There’s no—one of the things I love about the “Dear Colleague” letter is they say, “If you have comments about this, give them to us now after we’ve issued the rule,” just opposite of what it should be. And these are considered by the Office for Civil Rights to be legally binding, which means that if you do not comply, you’re subject to enforcement action. And very frequently the courts have deferred to these “Dear Colleague” letters in their interpretation of the statute. These letters can be very, very long—10 or 20 or 30 or 40 pages, especially when combined with other things such as called “Questions and Answers.” So it is really an evasion of the Administrative Procedure Act, it’s a very unilateral effort to try to say what the law is. And the other thing that I find quite remarkable about these letters is that they all say, “We don’t need to issue rules and regulations in the formal sense because there is nothing new here.” So the 2011 “Dear Colleague” letter you mentioned said there’s nothing new in this letter, meanwhile the White House said, “This is a pathbreaking policy.” They wanted to have it both ways.
Bob Zadek: So the “Dear Colleague” letter is like, as I said, an interoffice communication. “Dear Colleague, we just want to share some thoughts with you. Here’s how we think the statute—here’s what we think the statute means, here’s what we think the statute requires you to do or not do. And by the way, we’re the paying agent and we approve all the checks you get. So you might care a little bit about what we think, and here’s an insight into our thought process.” Well, any school who gets that is going to say, “Whoa, we better behave in accordance with this ‘Dear Colleague’ letter or else we’re not going to have any more funds or our funding is going to be cut off.” So it’s the implied threat. It’s sort of like alleyway gun pointed at your head: “Your money or your life.” Not really a choice. Well, “Dear Colleague” is saying, “Here’s what we think. You could disagree, so be it. Here’s what we think.” That’s a “your money or your life” letter, nothing less than that. But the author of the letter doesn’t have any statutory authority to share what they think if it’s at variance from the statute itself.
Gender Identity and Redefining “Sex” [41:01]
Bob Zadek: There has been a dispute about the legal status of these letters. A couple of years ago, Senator Lamar Alexander asked Catherine Lhamon, who was then head of OCR, “Are these legally binding?” He asked that also of a couple of other assistant administrators of Department of Education. And they said, “No, they’re not legally binding.” And Catherine Lhamon said, “We consider this to be binding law that must be followed by all schools.” She later said, “Well, we don’t really consider them legally binding, we just expect everyone to comply with them.” I’m not sure what that difference is. So basically they expect—the bottom line is if you do not comply, you are likely to be investigated and to have various sanctions imposed. To me, that’s legally binding.
Shep, we have a caller on hold. We have Jacob. Jacob, good morning, what’s on your mind this morning?
Caller (Jacob): Yes, Professor, the legally binding idea regarding that kind of Title IX funding mechanism that’s being used as leverage is the same thing being applied in the cases that are developing in federal court that have been decided recently in one case by Judge Ramos regarding withholding federal funds from these so-called sanctuary cities that harbor foreign nationals in the United States illegally.
R. Shep Melnick: Oh, that’s interesting. I’ve heard about that case, but I’m not really familiar with the legal issues there, which can get pretty complicated.
Bob Zadek: The case—I am a bit familiar with it. Those cases, and there’s lots of them, actually this arose also in the Obamacare legislation when Obama threatened to withhold Medicare funding unless states signed up for the program. And that was found to be unconstitutional because Congress—because the statute doesn’t have the power to withhold funding under another statute unless the other statute had those funding rules. When a statute grants funding, that grant is unconditional except as limited by the statute itself. So it was felt that—and maybe that would apply to Title IX funding as well—whether or not the OCR and whether or not Department of Education can withhold funding where the funding is created under another statute. So that’s the question, it’s still an open question, but in short, governments are prohibited from using the power of the purse to compel compliance by the states to governmental policy under the threat of withholding funds unless the statute so permits. It’s called “commandeering,” where the federal government is not allowed to compel states to behave in a certain way.
Now Shep, we discussed the issue—Title IX deals with discrimination based upon sex. But now in the beginning of our show when I introduced the topic, I brought in, at your invitation, the related, if it is related, concept of gender identity. Now that mucks up everything quite a bit. How does gender identity and discrimination fit into this mix?
R. Shep Melnick: Right, that’s the hottest topic on Title IX these days. You have to start with the fact that there are some areas of education where we allow sex-segregated facilities and programs. Most obviously with sports. So we say it is unfair to women to require them to try out for men’s teams, so we have separate teams. That is allowed by the statute. We also allow by the statute bathrooms, shower facilities, dormitories—those things are all allowed to be segregated by sex on college campuses and in primary and elementary schools. So then the question becomes: how do we assign people to these sex-segregated facilities? When Title IX was enacted in 1972, that seemed obvious: that there are male and there are female. Today, obviously, we have a third category of people who are called transgender. And then the question is: to which facility should they be allowed to have access?
The obvious answer is that we do that on the basis of biological sex. That was obviously the way almost everyone assumed at the beginning. Starting in 2016, the Obama administration issued a series of directives saying that assignment to these sex-segregated facilities shall be based on gender identity, which means people’s subjective understanding of whether they’re male or female. So that these distinctions should be made unrelated to biological sex. Now the problem with that argument is that the statute says “sex.” It doesn’t say “gender identity,” and the term “gender identity” was created to distinguish itself from biological sex. So in order to get to that understanding, you really have to play fast and loose with the reading of the words of the statute itself. But many courts have actually adopted that interpretation of the statute. So we are at a place where both administrative agencies and courts are going to be arguing about what the meaning of the term “sex” is and how it relates to gender identity.
Separate but Equal in Sports? [47:11]
Bob Zadek: You mentioned this in your presentation a second ago. You mentioned that colleges and universities are, and I think you said something like “of course,” permitted to have separate sports programs because of the obvious—I presume it’s obvious—physical differences between men and women. I wonder, and maybe it’s intellectually interesting to me, whether it is all that obvious. A lot of the battle on the issue of sexual discrimination is based upon the premise that men and women ought not be treated differently. Think back to the battle when women wanted to be given combat roles in the military. They said, “No, we are the same, we should not be treated differently, we want to compete on the merit.” The same when women wanted to become firefighters. They said, “No, no, we want to be given the same test, and if we pass the test, we should be allowed to be firemen,” a quite sensible argument.
So what would happen if a school, perhaps to save money, perhaps to test the statute, said, “Okay, we are going to have one sports program, not male and female sports programs, and if women can earn their way onto the varsity basketball team, they get to play, and if not, they don’t get to play”? Would not having separate sports teams be itself a violation of the statute, and wouldn’t that raise pretty interesting, at least intellectually, issues?
R. Shep Melnick: I agree completely, it would raise really interesting intellectual issues. But my guess is that no college would be willing to raise that issue, in part because the great accomplishment of Title IX other than eliminating some of those barriers to education in the 1970s was encouraging women to be more involved in sports. I think that’s been a tremendous accomplishment. It’s a symbolic accomplishment above all because it’s not required by the act. So if anyone is brave enough to challenge the strong support for women’s sports, I would welcome the intellectual debate. I don’t think that they would be very wise to do so.
Bob Zadek: So we end our discussion embracing separate but equal. How interesting is that? Shep, we’re running out of time. How can our friends out there follow your writing and tell us about the next book you’re working on? We have about a minute to go.
R. Shep Melnick: Well, number one, you can buy my book, The Transformation of Title IX, Brookings Press. I have an article in National Affairs that summarizes the book over the summer. I am now working on a larger project on the civil rights state involving race and ethnicity, and I hope to get that done within a year. So there are lots of ways to learn more about my position on these issues.
Bob Zadek: Shep, I’m jealous, you have a more interesting life than I do. Thanks a lot for sharing all your insights and views. Thank you for giving us an hour of your time this Sunday morning. This is Bob Zadek saying so long to all my friends out there. I’ll be back as I continue to be the longest-running live libertarian talk radio show on the air. Have a good Sunday everyone.