So much of what passes for informed discussion about Title IX is tantamount to truthiness, the wonderful word coined by comedian Stephen Colbert. Some people prefer what they wish to be true instead of the historical reality of Title IX.
Whether in debates about the handling of sexual assault and harassment complaints on campuses, or in the never-ending whining by men’s sports fans that Title IX is killing their sports, some inaccuracies certainly are due to an unfortunate lack of knowledge about Title IX despite it being the most important legislation for U.S. women since the right to vote. In short, Title IX of the Educational Amendments of 1972 prohibits discrimination on the basis of sex in educational programs receiving federal funds.
But much of what critics of Title IX put forth goes beyond a lack of learning to wishful thinking. The latest high-profile example offers some of the most common canards, in an opinion piece by conservative writer Jessica Gavora published by The Wall Street Journal. Many of the same erroneous claims show up repeatedly, however, in men’s rights posts about Title IX or in anti-IX rants in online Comments sections.
Watch for these common mistakes when you read attacks on Title IX:
Title IX originally was about sports. Nope. Having interviewed many of the surviving originators of Title IX, I can tell you that they had little idea of its effects on sports. The post-Title IX revolution in athletics came as much as a surprise to them as it did to everyone else. Before Title IX, some colleges refused to accept women. Many applied quotas to admit only a small number of women. Only tiny numbers of women were hired as faculty at lower pay than men. Title IX aimed to change all that, and it did that and more.
Title IX eviscerated men’s sports. Title IX “targeted male athletes,” Gavora writes, and its “victims were wrestlers or swimmers from low-revenue men’s sports that were jettisoned to achieve participation-parity with women’s sports.” A policy letter from the Office for Civil Rights in 1996 turned Title IX into an “illiberal gender-quota regime” as it applies to sports, she believes.
In reality, male athletics directors devised the rules for determining whether campus sports programs comply with Title IX, over the objections of women’s groups. Nothing in the rules, known since 1979 as “the three-part test,” requires schools to cut men’s sports, and most don’t. But when budgets get tight and officials choose to cut a predominantly male sport, they often scapegoat Title IX. Oh, and that 1996 letter from the Office for Civil Rights that Gavora cites? It actually did the opposite of what she claims, emphasizing that institutions only need to meet one (not each) part of the three-part test. The letter specifically addresses the criticisms that Gavora and others repeat to this day and says flat-out that “…this understanding of Title IX and the three-part test is wrong” and there are no “strict numerical formulas” for compliance. But keep saying it, and the truthiness gets stronger.
Blame Obama for hysteria around sexual assault. Gavora and others suggest that a 2011 letter from the federal Office for Civil Rights launched the Title IX controversy around sexual assault and harassment on campuses and fails to protect the rights of the accused by weakening the standard of evidence. But women filed some of the first lawsuits under Title IX in the 1970s because of sexual harassment (such as a Yale professor who demanded sex for a good grade), and assault and harassment have been issues from the beginning. Until recently, though, colleges and schools did little about it, thus denying distressed victims equal opportunity to complete their educations. The Supreme Court has weighed in on Title IX nine times, plus lots of lower courts, and the Office for Civil Rights has issued at least 13 letters and memoranda since 1979 to help clarify how schools and colleges can stay in compliance with the law. The 2011 letter provided some much-needed specifics on what they’re expected to do. (And it has provided a more solid basis for suing if a school ignores its obligations, as two UCLA graduate students recently claimed.)
Title IX doesn’t follow the rule of law. One of the biggest misunderstandings of Title IX is the suggestion that it fails by not using the same criteria as a criminal trial. Title IX is a civil rights law that uses civil procedures (not criminal) and always has. Someone can be considered a violator if the alleged actions are deemed more likely than not to have occurred, instead of “beyond a reasonable doubt.” It’s a weaker standard of evidence than in a criminal trial, yes, but so are the sanctions that go with it, which is true of the entire civil complaints system, not just Title IX. Perhaps not surprisingly, some lawyers think that more lawyers should be involved. Others argue that these problems should be left to the criminal justice system (which also largely has failed victims of sexual assault, by the way).
Title IX is worse than [name a dictator]. Gavora says that a Title IX complaint filed by two Northwestern University students “would have made Joseph Stalin blush.” A commenter on a Fox News article is quick to bring up Pol Pot. Whatever you think about Title IX controversies like the story recounted by Professor Laura Kipnis, no one’s been killed or sent to a gulag. When people say it’s worse than Stalin, Hitler, or Pol Pot, you know they got nothin’.
It may be that “Those who cannot remember the past are condemned to repeat it,” as philosopher George Santayana said. But those who invent the past are condemned to look foolish, as long as people pay attention.