Zadekpedia

Ask BobAsk a question of every episode, 2009–2023 — answers cite the minute

Title IX

6 min read

Part of Education.

Start here

Every episode (4)

Who argued it

Joe Cohn · R. Shep Melnick · Richard Epstein · Cathy Young

Administrative State · Higher Education · Due Process

Background

Origins and text

R. Shep Melnick, described as the Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX, tells Bob Zadek that Title IX is one section of omnibus education amendments passed in 1972, a “hodgepodge of changes in education laws.” Its operative rule, in Melnick’s summary, is that any educational institution receiving federal funds cannot discriminate on the basis of sex. What that meant, he says, was left unclear; there was very little discussion of it in Congress, and 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 simple, open-ended prohibition whose meaning has been argued over ever since Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).

Joe Cohn, in a later episode, recites 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—and then the language goes on.” He dates the first judicial activity to the late 1970s, when courts began asking whether a school lives up to that promise if it allows campuses to be permeated with sex-based harassment, whether by faculty or between students. Courts concluded a school cannot be “deliberately indifferent” to known instances of sex-based harassment, and crafted standards for when conduct crosses the line. Cohn says the theory was that if harassment and sexual violence go unaddressed, female students would feel less comfortable going to school, and that the main aim of Title IX is environments where students can learn free of sex-based discrimination Do you know your rights? (2022).

Zadek, in the same episode, offers a different account of the statute’s early effect: 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 Do you know your rights? (2022).

The “Dear Colleague” letter and the power of the purse

Cohn describes the 2011 letter from the Department of Education’s Office for Civil Rights as an informal letter telling all the schools it regulates its views on what Title IX requires. The structure of Title IX, he notes, makes an institution ineligible for federal funds if sex-based discrimination is present on campus, so the penalty for violation is the possible loss of all federal funds. Even though the letter is not a binding document like a court case or a statute, a general counsel who ignored the warning of what the agency will look at when deciding whether to act “would be committing malpractice” Do you know your rights? (2022).

Zadek frames the same mechanism as the episode’s central lesson: the Department of Education is largely a disbursement office whose teeth are the money it holds back. The federal government accumulates money through the federal income tax, and the money—not statute, not police power, not criminal law—gives it power over private colleges that are not per se subject to federal regulation but need the money. The money, he says, is the hook Do you know your rights? (2022).

Philip Hamburger makes the structural argument on a different episode. Title IX, he says, bars sex discrimination in educational institutions, but it 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. Money is used, he argues, because it is dubious whether the federal government has any congressional power over education—largely undisputed—so the drafters thought they would use money to control it The New Civil Liberties Movement (2021).

Zadek, questioning Hamburger, characterizes the arrangement as a stealthy assault on free speech that could not have been done directly, accomplished with money; he calls it prior licensing of speech and says it starts with grants given to universities conditionally, the federal government being, in his phrase, the sugar daddy of most universities The New Civil Liberties Movement (2021).

Jawboning

Will Duffield’s episode treats the letter as an instance of jawboning. Zadek tells him that Title IX abuse on college campuses, defended by organizations such as FIRE, all started with the “Dear Colleague” letter, which he calls jawboning: the Department of Education, concerned about what it perceived as a rape culture on campuses and fearing universities were sweeping misconduct under the rug, had no legislation through which to act, so it wrote a letter addressed to college presidents and provosts. Zadek says the letter told them the department thought colleges should do a better job protecting the rights of women and was concerned women were being treated unfairly in violation of Title IX. Because the Department of Education exists primarily to disburse money, he says, such a letter is like “your money or your life” ‘Jawboning against Speech’ with Will Duffield (2023).

Duffield’s own remarks in that episode concern jawboning by members of Congress and the executive branch, the Speech and Debate Clause, and reporting requirements; he does not himself discuss Title IX ‘Jawboning against Speech’ with Will Duffield (2023).

Across episodes: the same mechanism, restated

The 2018 Melnick episode supplies the statutory origin and the open-endedness of the text; the 2021 Hamburger episode recasts the same statute as conditional spending that reaches beyond any federal power over education; the two 2022 Cohn episodes supply the 2011 letter, the deliberate-indifference case law and the malpractice point; and the 2023 Duffield episode has Zadek folding the letter into the vocabulary of jawboning. The episodes show the same mechanism described in each, with the emphasis shifting from statutory history to conditional funding to enforcement practice to jawboning, and no guest contradicting another.

Backlinks