Senators should ask DeVos about Title IX

Betsy DeVos (by Keith A. Almli/Wikimedia Commons/Creative Commons 3.0)

The U.S. Senate’s Health, Education, Labor, and Pensions Committee has at least another week to consider what it will ask Education Secretary nominee Betsy DeVos since it delayed her nomination hearing from Jan. 11th to next Wednesday, Jan. 18. My suggestion: Ask her about Title IX.

Does she understand that it’s a civil law operating under civil procedures, not criminal ones? Does she agree that Title IX is important for elementary and secondary schools as well as higher educational institutions? Is she aware that it’s about so much more than the hot-button issues of sports or sexual assault or transgender bathrooms?

For the last few days, women have been posting messages and videos on social media addressed to #DearBetsy in a campaign launched jointly by Know Your IX and End Rape on Campus. Their goal is to get DeVos to commit in her nomination hearing to enforce and protect Title IX. We should at least find out if she truly understands this law and thinks it’s valuable.

Too many conservatives consider Title IX a kind of  apocalyptic governmental “overreach,” but they’ve been under-reaching for equitable education for the past 45 years. Pundits such as Glenn Harlan Reynolds or Jessica Gavora continue to state historical inaccuracies about Title IX as fact and then build bogus arguments on that base, and the major media who publish them don’t fact-check their falsities (including USA Today and the Wall Street Journal, in these instances). If the new Republican Administration and Congress parlay this propaganda into action, they’ll set progress back decades.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally-funded education. Deliberately patterned after Title VI of the Civil Rights Act of 1964, its wording is broad enough to encompass all of education, though its impetus came initially from women who were tired of being shut out of colleges, graduate programs, and professor-level jobs.

Male college administrators who opposed Title IX when Congress first considered it warned the government not to tell them what to do – because that would be “overreaching.” Congress had heard the same argument from whites against earlier civil rights laws. For the most part, they didn’t buy it.

“Overreach” isn’t the only repetitive phrase coming from people who think women have gone too far. Watch for these other tried-and-untrue claims when you hear attacks on Title IX:

Title IX has strayed from its intended focus on athletics. As disparities in athletics became the marquis battle under Title IX, coaches whined about overreach and tried to get sports exempted. President Gerald Ford, a former football player, recognized their attempted end-run around justice. He, President Jimmy Carter, and the courts helped make sports a permanent part of the Title IX playbook, but it’s never been more than one part and wasn’t the primary focus of its creators.

Controversy around sexual assaults on campuses began with “interference” from the Office for Civil Rights in 2011. Hardly. Students filed the first lawsuits about sexual harassment under Title IX in 1976. Similar cases reached the Supreme Court in the 1990s. The Office for Civil Rights issued at least 27 “Dear colleague” letters, policy interpretations, clarifications, and guidance for complying with Title IX over the years, something it also does for other laws and executive orders. The 2011 letter was the first that explicitly (instead of implicitly) included sexual violence as a form of sexual harassment. Who can argue with that? Critics rail instead against the mandate to do something about it, calling the government’s guidelines for preventing or dealing with sexual harassment – you guessed it – more government overreach.

Title IX forces colleges to micromanage sex lives. Micromanaging sure sounds like overreach, doesn’t it? Except it’s not true. Title IX requires educational institutions to be proactive and fair in the procedures they adopt to prevent and manage sex discrimination, so that all students have equal educational opportunities. The 2015 documentary The Hunting Ground showed how many, many times schools’ procedures have failed victims of sexual assault and harassment, interrupting their educations but not the educations of those who assaulted or harassed them. Occasionally, the reverse is true — schools’ procedures may treat the accused unfairly. After 45 years of Title IX and with 300 currently active Title IX investigations of sexual assault in higher education alone, we’ve got to keep going until schools get it right.

Plus, Title IX isn’t forcing anything, it’s a reflection of society’s evolving acceptance of equality and fairness. The standard of non-discrimination can feel like “micromanaging” to people who don’t want to be told that some behaviors no longer are acceptable in a civil society. Schools don’t have to comply with Title IX, but then we don’t have to give them taxpayers’ money, either. Grove City College refuses government funding in order to avoid Title IX. A whopping 232 institutions even receive exemptions from Title IX on religious grounds without funding cut-offs.

Senate HELP Committee Chair Sen. Lamar Alexander (R-TN), center (2008 photo via Congress/WikimediaCommons)

It’s unclear what the new Republican government will try do to Title IX, but history suggests it won’t be kind. The Ford Administration left hundreds of unopened Title IX complaints behind when it left. Congress had to override President Reagan’s veto of the Civil Rights Restoration Act of 1987 in order to defend Title IX and other civil rights laws from court limitations. A 2005 interpretation of Title IX under President George W. Bush made it easier for schools to avoid athletic equity for women.

If she is confirmed as Education Secretary, DeVos will be appointing an assistant secretary for civil rights who will be in charge of enforcing Title IX (or not). The Senate should make sure that DeVos knows the difference between truth and Title IX truthiness before they vote on her confirmation.