The statute and its origins
Title IX is one section of omnibus education amendments passed in 1972, described by R. Shep Melnick as “a hodgepodge of changes in education laws.” In Melnick’s account, the provision itself “simply says that any educational institution that receives federal funds cannot discriminate on the basis of sex,” and what that meant was left unclear. There was, he says, very little discussion of it in Congress at the time; when President Nixon signed the legislation he did not notice its importance, nor did the New York Times in its story on the passage. Melnick calls it “a very simple prohibition, open-ended,” about whose meaning we have been arguing ever since. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Joe Cohn quotes the operative language: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” except that the language goes on. Cohn dates the first judicial activity to the late 1970s, when courts began asking whether a school lives up to that promise if it allows its campus to be “permeated with sex-based harassment,” whether by faculty harassing students or students harassing each other. Over a number of years, he says, courts concluded that a school cannot be “deliberately indifferent” to known instances of sex-based harassment between students, and crafted definitions of when things cross the line. Sexual violence, he notes, has been treated by courts as a form of harassment. Do you know your rights? (2022)
Bob Zadek offers a different emphasis on the early history, saying the first real activity under Title IX caused colleges and universities to rethink how they allocated economic resources between men’s and women’s athletic activities, when most attention had gone to men’s activities. Joe Cohn on Title IX and Due Process on Campus (2022)
The “Dear Colleague” letter and the power of the purse
The episodes return repeatedly to a 2011 letter from the Department of Education’s Office for Civil Rights. Cohn describes it as “an informal letter telling all of the schools that they regulate its views on what’s required under Title IX.” The structure of the statute, he explains, is that an institution is not eligible for federal funds if sex-based discrimination exists on campus, so the penalty for violating Title IX is the possible loss of all federal funds. When the department, which he calls the agency chiefly responsible for determining violations, says how it will measure compliance, a general counsel who ignores that warning would be committing malpractice, even though the letter is not a binding document like a court case or a statute. Do you know your rights? (2022)
Zadek frames the same mechanism in terms of money rather than law. The Department of Education, he says, is for the most part nothing other than a disbursement office, with the teeth being that it holds back the money; it has no SWAT team and no police force, but it has the dollars. Private colleges are not per se subject to federal regulation, he notes, but they need the money, and the money is the hook that gives the federal government power. Joe Cohn on Title IX and Due Process on Campus (2022)
Philip Hamburger makes a related argument, calling Title IX a good example of conditional spending. He says the law bars sex discrimination in educational institutions but has been misused through interpretation or guidance from the Department of Education to suppress sexual and political speech in what he calls “nasty little inquisitorial tribunals.” He stresses that this is not a general prohibition in Title IX: the law says that if an educational institution receives educational spending from the federal government, it must stop discrimination, including censoring speech according to the interpretation. Hamburger adds that it is rather dubious whether the federal government has any congressional power over education, and that this is largely undisputed — so Title IX, he says, acknowledged there was no federal power of education and used money to control it instead. The New Civil Liberties Movement (2021)
Will Duffield’s episode supplies Zadek’s own characterization of the letter as jawboning. Zadek says the Department of Education, concerned about what it perceived as a “rape culture” on college campuses and fearing that universities were sweeping the problem under the rug, had no legislation through which to act, so it wrote a letter addressed “Dear Colleague” and sent it to college presidents and provosts. In Zadek’s telling the letter said, in effect, that colleges should do a better job protecting the rights of women and that the department was concerned women were being treated unfairly in violation of Title IX. Because the department exists primarily to disburse money, Zadek argues, such a letter carries the weight of “your money or your life.” ‘Jawboning against Speech’ with Will Duffield (2023)
Due process and the single investigator model
The 2022 episodes center on campus adjudication. The episode summary for the Joe Cohn interview describes a discussion of the erosion of due process rights on college campuses regarding sexual harassment and Title IX allegations, tracing the history from the 2011 “Dear Colleague” letter to formal rulemaking under the Trump administration and the rollbacks proposed by the Biden administration, and highlighting the dangers of the “single investigator” model and the lowering of evidentiary standards. Do you know your rights? (2022)
Cohn’s account of the legal framework stresses that the courts’ aim was to ensure schools and universities and K-12 schools are environments where students can learn free of sex-based discrimination. He notes that the term “deliberately indifferent” is a legal phrase of art that the conversation might return to later. Joe Cohn on Title IX and Due Process on Campus (2022)
Speech, jawboning and the limits of remedy
In the Duffield episode, Zadek says he has done many shows on Title IX abuse on college campuses defended by organizations such as FIRE, and that it all started with the “Dear Colleague” letter, which he calls jawboning. ‘Jawboning against Speech’ with Will Duffield (2023)
Duffield’s own remarks concern jawboning generally rather than Title IX specifically. He says it is difficult to tackle directly through the courts even where there is a clear First Amendment issue, because most of the punishment accrues to the private intermediary, which is being punished for having been bullied. When members of Congress do the jawboning, he says, the Speech and Debate Clause — intended to let Congress debate freely — prevents them from being held liable for their speech. The available remedies, in his view, are a congressional rule limiting certain forms of jawboning, voting out members who jawbone egregiously, or, outside the congressional space, prohibiting federal employees from demanding the removal of speech and imposing reporting requirements so that private communications with platforms go on the record. He calls sunlight on agency jawboning possibly the most useful disinfectant. ‘Jawboning against Speech’ with Will Duffield (2023)
Across episodes: the same mechanism, restated
The excerpts show no development in the argument so much as a set of variations on one mechanism. Melnick supplies the statutory origin and the open-endedness of the text; Hamburger supplies the conditional-spending theory and the claim that Congress lacked power over education; Cohn supplies the operative language, the deliberate-indifference case law and the compliance dynamics of the 2011 letter; Zadek, in the Cohn and Duffield episodes, supplies the disbursement-office framing and the jawboning analogy; Duffield supplies the general account of why jawboning is hard to remedy. The later episodes do not revise the earlier ones; they restate the funding hook and the guidance letter as the engine of the transformation.
What the sources do not cover
The excerpts do not describe the formal rulemaking under the Trump administration or the specific rollbacks proposed under the Biden administration beyond naming them in an episode summary. They do not identify the case names or amendments on which the deliberate-indifference doctrine turned, nor the terms of any statute other than the quoted language of Title IX itself. Several excerpts break off mid-exchange, and the sources state no outcome for the litigation and rulemaking they mention.