Title IX at 45: Where Do We Go From Here?
Today is the 45th anniversary of the enactment of the Higher Education Amendments Act of 1972 and its most famous provision – Title IX. The law states that “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.”
When signed in 1972, then-President Richard Nixon lamented Congress’ decision in the new law to allow court-ordered racial integration activities to continue: A presidential frustration with the judiciary, Congress, and the Constitution that suggests déjà vu. Congresswoman Patsy Mink, the first woman of color to serve in Congress and one of Title IX’s lead sponsors, expressed a different sense in her famous quote, saying “It is easy enough to vote right and be consistently with the majority. But it is more often more important to be ahead of the majority and this means being willing to cut the first furrow in the ground and stand alone for a while if necessary.”
The Obama administration took Title IX seriously.
Last year, President Obama issued guidance that clarified schools’ Title IX obligations regarding transgender students – which was widely supported by the civil rights community. Earlier this year, the Trump administration (specifically, Secretary of Education Betsy DeVos and Attorney General Jeff Sessions) rescinded that guidance – leaving transgender and gender nonconforming students without a strong statement from the federal government that their rights will be protected, and putting them at risk of increased harassment and violence.
That rescission was only the tip of the iceberg in terms of a larger civil rights rollback, not just at the Departments of Education and Justice, but throughout the entire administration.
The Obama administration also issued Title IX guidance clarifying schools’ responsibilities to protect students from sex discrimination in the context of sexual assault on campuses. The guidance requires academic institutions receiving federal funds to establish and enforce clear procedures regarding sexual assault, harassment, and violence. When 11.2 percent of graduate and undergraduate students experience rape or sexual assault through physical force, violence, or incapacitation, and only 12 percent of college student survivors (20 percent of female college student survivors) report cases to law enforcement, it is the duty of the administration to require institutions to provide a trusting, effective, and safe environment for all students.
That guidance remains in effect today, although its value could be undermined by other Department of Education actions.
A recently released internal memo from the Department of Education’s Office for Civil Rights (OCR) indicates that OCR will no longer routinely seek out three years of past complaint data from institutions in the course of investigating complaints about the mishandling of sexual assault allegations, consequentially decreasing the frequency at which it looks for and identifies systemic issues in colleges and universities. This change could allow systemic discrimination to proceed unchecked and is an abdication of the Department of Education’s responsibility to protect all students from discrimination. Disproving the purported justification that this charge would allow for speedier resolutions to complaints, the Trump administration’s proposed 2018 budget also offers further cuts to OCR, eradicating 8 percent of its remaining staff. Though complaints have increased over the years, staff has diminished – leaving a deficiency in civil rights capacity.
On its 45th anniversary, Title IX remains the law of the land, and the civil rights community will continue to defend it. As we commemorate this important legislation, our nation must build upon the success of Title IX, not undermine it.