Vol. 30 No. 8 (September 2020) pp. 120-123THE TRANSFORMATION OF TITLE IX: REGULATING GENDER EQUALITY IN EDUCATION, by R. Shep Melnick. Washington DC: Brookings Institution Press, 2018. 325 pp. Paperback $35.99. ISBN: 9780815732228. eBook ISBN: 9780815732402.
Reviewed by Virginia A. Hettinger, Department of Political Science, The University of Connecticut. Email: virginia.hettinger@uconn.edu.
THE TRANSFORMATION OF TITLE IX provides a comprehensive description of Title IX. The book discusses Title IX enforcement in athletics, sexual-harassment, and gender identity, providing an in-depth understanding of the role of the Office for Civil Rights (OCR) in shaping and expanding how and when Title IX governs different aspects of education. Much of the book is descriptive but the core argument is that the Office for Civil Rights within the U.S. Department of Education has neglected to follow the provisions of the Administrative Procedure Act (APA) and instead relied on Dear Colleague Letters to expand the role and reach of Title IX. This practice, coupled with judicial branch cooperation and interpretation has led to a “convoluted policy making process” that leaves OCR and the enforcement of Title IX vulnerable to shifting partisan priorities (p. ix).
Melnick’s argument is grounded in a detailed history beginning with the debate over and passage of Title IX in 1971 and 1972. Scholars of the bureaucracy, administrative law, sex discrimination, and women in politics will find much valuable and eye-opening information here. This book had the potential to be a valuable resource in classes on those same topics. Unfortunately, the tone of the book is sufficiently hostile at times that it would be difficult to assign in any class setting.
In the first three chapters. Melnick provides three short examples of how OCR has interpreted and enforced Title IX. He identifies five defining elements of this policy area. They are (1) the growth of statutory, judicial, and bureaucratic tools that define the “civil rights state”; (2) institutional “leapfrogging” between the bureaucracy and federal courts; (3) critical distinctions between education and business; (4) The role of “rights talk”; (5) and the importance of continued progress in combating inequalities (pp. 13-21).
The next two chapters provide a history of the civil rights state beginning with the passage of the Civil Rights Act of 1964 and the challenges presented by the 1972 amendments that created Title IX. Melnick introduces the key federal agencies tasked with enforcing civil rights statutes and the role of the courts in interpreting these statutes. He also provides a few examples of times Congress has exercised control over these interpretations by overriding Supreme Court decisions. The challenges of Title IX include the language of the statute itself, the difficulty of extending mandates on racial equality to gender equality, and OCR’s limited options for enforcement.
The next four chapters examine Title IX enforcement in athletics. Even though athletics were not the primary focus of debate when Congress passed Title IX in 1972, athletics became the primary focus of OCR’s enforcement regime. Melnick [*121] notes that “Athletics is the most important area where the analogy between racial discrimination and sex discrimination breaks down” (p. 79). The result is that we have embraced separate but equal in athletics while rejecting it in other settings. This complicates efforts to define equality.
In Chapter 5, Melnick contrasts the tremendous task that Congress assigned to OCR with the relative lack of resources Congress has provided. The small size of the agency, the lack of clarity in its mandate, the limits of its enforcement powers, and Congress’s desire to overload the agency have plagued OCR from the beginning. The agency has followed the APA to promulgate rules and policies just once in its nearly fifty-year history. Since then, OCR has relied on compliance agreements with individual institutions, which then become the basis for policy interpretations that apply to all institutions through Dear Colleague Letters (DCLs). Melnick demonstrates that this practice leaves the enforcement of Title IX particularly vulnerable to shifting partisan priorities.
Chapter 6 traces the first 23 years of Title IX and OCR. After following the APA to adopt its first set of policies and procedures in 1975, the most significant development during this period is the emergence of the Three-Part Test in a 1979 policy interpretation document. The test hinges on three questions. First, are opportunities “provided in numbers substantially proportionate to their receptive enrollments”? Second, if not, can the institution “show a history and continuing practice of program expansion”? And third, if the institution cannot show such a history, it can it demonstrate that “the interests and abilities of the members of that sex have been fully and effectively accommodated” (p. 99)?
In Chapter 7, Melnick provides his strongest example of institutional leapfrogging--“courts and agencies each taking a step beyond the other, expanding regulation without seeming to innovate” (p. 15). The First Circuit Court of Appeals rejected Brown University’s efforts to balance budgets by cutting some women’s sports. The decision strengthened the third prong of the Three-Part Test and other circuits adopted the First Circuit’s interpretation. OCR used the decision as a basis for Multiple DCLs and Additional Clarification statements, which communicated that the Three-Part Test would be at the core of OCR’s athletic enforcement efforts. The result of this institutional leapfrogging is that achieving gender parity in varsity sports became the primary force in Title IX athletic enforcement. Melnick stresses that this has happened without ever returning to the policy making process of the APA.
Chapter 8 points out the unintended consequences of OCR’s focus on achieving parity in varsity athletics. Partly because of the high costs and politically untouchable status of men’s football, achieving parity has high financial costs. As the cost of athletics goes up, fewer resources are available for non-athletic endeavors. Additionally, female athletes, who once outperformed male athletes academically and in post degree achievements no longer enjoy that achievement gap-and it isn’t because male athletes have caught up to female athletes.
The next three chapters focus on the Obama’s Administration’s efforts to address sexual violence and sexual harassment in education. Chapter 8 addresses some of the controversies that have surrounded these efforts including critiques of the due process protection in the new procedures that many colleges and universities have [*122] adopted. Melnick explores the relationship between sexual assault or sexual harassment and Title IX’s definition of sex discrimination. He also tries to fit this policymaking process into the framework of institutional leapfrogging but the narrative does not fit his earlier explanation of leapfrogging. Melnick reframes it as “leapfrogging--with a twist” (p. 152).
Chapter 9 compares and contrasts Title VII sexual harassment court cases and public policy with Title IX issues. Chapter 10 provides greater detail on the Obama Administration's initiatives regarding harassment and violence. Melnick indicates that while the press focused on sexual assault, OCR developed new policies that addressed a broader definition of sexual harassment and tied that definition to hostile environments that would deprive students of educational opportunity. Melnick notes that the polices are part of an effort to strengthen Title IX office across college campuses, retrain all university employees and students, and remake school culture.
The remaining two chapters are brief and address recent OCR efforts to confront the treatment of transgender students in schools. Although Congress failed to amend Title VII and Title IX to include sexual orientation and gender identity, OCR developed a DCL to address discrimination against transgender students. Coupled with a Fourth Circuit Court of Appeals decision involving a transgender student in Virginia, Melnick argues that the DCL represents another case of institutional leapfrogging. This discussion presents the strongest example (at press time) of how policy making outside the APA is vulnerable to shifting policy priorities under different administrations because the Trump administration quickly withdrew the DCL.
Melnick’s core argument—that policies developed outside the APA are vulnerable to political whims—has been strengthened as the Trump administration has sought to undo much of the work of the Obama administration. The analysis also sets the stage for future efforts to explore more fully Congress’ inability to monitor the courts of the bureaucracy in this context. There are important lessons about the value of following the APA for policy making but these lessons are dampened by Melnick’s editorializing, which is made more jarring by his promise in the opening chapter “not to preach, but to lay out the story as fairly as I can and let the reader judge” (p. 22). This is most prevalent in his discussions of sexual violence and harassment. For example, when discussing reporting rates among female students at Harvard, Melnick uses the adverb “incongruently” to describe that 70 to 80 percent of women also declined to report the sexual assaults they had experienced (p. 10). Melnick may not intend to imply that these reporting rates are inconsistent with the underlying facts, but by using the word incongruently that would indeed be the implication for many readers. After quoting advice from The University of Georgia about becoming comfortable communicating with a partner about sexual activity—“the first few times may feel awkward. But, practice makes perfect. Be creative and spontaneous. Don’t give up” (p. 209)—Melnick goes on to note “Of course, according to OCR’s guidelines overtures that are repeatedly rejected constitute sexual harassment” (p. 209). Acknowledging that it takes more than one conversation to become comfortable talking about something our society treats as taboo is not the same as encouraging repeated unwelcome overtures but that seems to be the implication in connecting these two things. Later, he describes a Princeton position that would aim programming at men as an “ideological attack on [*123] ‘masculinity’” (p. 220). After summarizing the job description, Melnick notes “Such language used to be the preserve of a few students on the ideological fringe and of professors in identity studies programs” (p. 221). Melnick provides no evidence to support this assertion. Such statements are not helpful when discussing an issue as difficult as sexual assault and harassment.
Because of the tone, I would recommend this book as a supporting resource for those interested in the bureaucracy, administrative law, or women and politics but I would find it difficult to use as a resource in the classroom.
© Copyright 2020 by the author, Virginia A. Hettinger.
