Title IX and Trojan Horses: How a Law to Ensure Equality Became a Vehicle of Unequal Justice

When Congress passed the Higher Education Amendments of 1972 as an addition to the Higher Education Act of 1965, many of us cheered, and we especially cheered Title IX of the act which stated:

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.

At the time, I was a member of the all-male University of Tennessee track and field team and we were treated quite well. Our squad was scholarship-laden and we had national and world-class talent that ultimately would lead to NCAA championships in cross country and outdoor track. We stayed in nice hotels, ate good food, and had privileges other students did not have. In short, we were good, and we knew it.

The UT women’s track team, however, did not have it as well as we did, to put it mildly. At the time, women’s athletics at Tennessee was run out of the Physical Education Department, and the budget for their team did not even begin to approach our own $200K a year, which was the highest in the Southeastern Conference and one of the highest in the entire nation. On road trips, the women slept several athletes to a room, sleeping on couches, backpacking mats, and the occasional bed.

It was not until 1976 that female athletes at UT received athletic scholarships, and it was a while before coaches even were paid for full-time positions. Pat Head Summit, the women’s basketball coach who would reach legendary status before being diagnosed with early-onset Alzheimer’s disease a few years ago, was a graduate student receiving a $250 stipend per month. Terry Hull Crawford coached the women’s track team and she, too, labored in obscurity and next-to-nothing pay for years before her program was given some status by UT officials.

By the late 1970s, women’s athletics at UT was moving upward, and basketball and track became national powerhouses. All over the country, women were gaining new opportunities in sports and it was clear that Title IX had played an important role in that development, and few people were willing to argue with the results.

Politicized Accusations, Politicized Results

For the most part, Title IX and its enforcement was not very controversial, at least not at first, although the term “discrimination” hardly was settled, for the question remained, “What is discrimination on the basis of sex, and what is not?” Some things were fairly easy, but in the world of college (and often high school) sports, things were not always easy to discern.

For example, how did one differentiate between men’s and women’s athletic scholarships? At the time the law was passed, some collegiate football teams had 100 or more scholarships available, and given that women’s collegiate sports still was in relative infancy, there often were fewer than 100 female athletes in all sports at most colleges and universities.

Over time, as women’s collegiate sports expanded in numbers of teams, athletes, and in prestige – due in no small part to the popularity and prestige that Pat Summit’s basketball teams created by being a dominant national program, winning eight NCAA championships – the U.S. Department of Education, which was given the authority to enforce Title IX did what bureaucracies often do: engage in command-and-control regulation. The DOE Office of Civil Rights decided that a quota system provided the best enforcement mechanism, and that decision would have disastrous effects for many male athletes.

Department of Education Bureaucrats decided that athletic participation for men and women had to match the male-female enrollment percentages at a particular university. For example, if State U had a student body that was 50-50 male-female, then the university must have equal athletic opportunities for men and women, which essentially means the same number of slots per team. However, because the overall enrollment numbers now favor women, institutions of higher learning generally have to provide more slots to females than to males. Likewise, college athletic scholarships must be equal according to proportional representation of males and females on collegiate sports teams.

The problem of proportionality is clear once football comes into the picture. Division-I football teams are permitted by the NCAA to have up to 85 players on scholarship, and in addition to those players, there are some walk-ons, players who participate but do not have athletic scholarship help. However, there is no women’s team sport that has a comparable number of players or scholarships, and this means that in order to meet government nondiscrimination standards, there must be more women’s teams than men’s teams (if a college or university has a football team).

While advocates for female athletes claim this is necessary to avoid sex discrimination, the reality is that Title IX-directed program cuts always will be aimed at men’s sports, and that often has meant eliminating men’s teams in wrestling, volleyball, gymnastics, and track and field. Some recent examples involve the University of Tennessee-Chattanooga, which axed its men’s track team not because of budget problems, but because the university was deemed “out of compliance” with Title IX, and since the university decided it would be too costly to add even more women’s teams, the only “solution” that would satisfy the DOE was cutting out men’s track.

One men’s track and field program that was eliminated on the basis of Title IX produced Olympic champion Dave Wottle, who won the 1972 Olympic 800 meters at the wire in the most dramatic way possible. Bowling Green State University of Ohio had a storied program that attracted very good athletes, but the only way for the university to satisfy Title IX bureaucrats was to cut the program that gave us one of the greatest middle distance runners in U.S. athletic history.

Perhaps one of the most bizarre Title IX rulings came not from higher education, but from the public schools. In 1978, the Tennessee Secondary Schools Athletic Association (TSSAA) still played the old-style six-player game for girls’ basketball in that state. A player from Oak Ridge High School sued her school and the TSSAA, claiming that the rules discriminated against her, as they were depriving her of the chance to gain a college basketball scholarship. (By then, all colleges and universities were playing the standard five-on-five game.)

The TSSAA, under pressure from long-time coaches of the girls’ game, resisted and a federal judge already had ordered the TSSAA to stop playing the old style, but did not set a timetable. However, the old office of Civil Rights in the Department of Health, Education, and Welfare (HEW) ruled that Oak Ridge High School was the cause of the discrimination and ordered the school to start playing five-on-five basketball within 30 days of the order.

Since the order did not apply to the TSSAA, only to Oak Ridge High School, it was absurd to order the school to play a style of ball that no other school in the state played. While the ruling did essentially force the TSSAA to change to five-on-five, nonetheless the particulars of HEW’s order made no logical sense, since Oak Ridge was doing what TSSAA member schools always did: play by the organization’s rules.

Whether it is numbers of athletes or disparity in athletic scholarships, or something else, the rise of Title IX had turned the athletic landscape into a playground for attorneys. Given that it is not hard to find alleged bias on account of sex, attorneys representing female athletes have inundated the courts with lawsuits, as the lawyers see a big payday and low-hanging fruit.

Given that the American Trial Lawyers Association is the de facto owner of the Democratic Party, along with government employee unions, the current situation with Title IX and college sports is a godsend to both the attorneys and the party. True, American colleges and universities are dominated by Democrats, and the lawyers suing them mostly are Democrats, but it really doesn’t matter. Higher education administrators almost always capitulate no matter what the facts of a case might be, and their Democratic counterparts in the courtrooms rack up the fees, and then recycle a portion to Democratic politicians that support the process, which then is repeated again and again. Given that college administrators are spending someone else’s money, the entire racket is seen as just a cost of being in business, and in the end, the colleges just jack up tuition and ultimately much of the weight is carried by students who leave school with monstrous loads of debt.

Title IX and Sexual Assault

While “unbalanced” numbers and scholarship issues have been fodder for Title IX-based sex discrimination lawsuits, the Obama administration in 2011 finally opened the jackpot for trial attorneys with its order that all colleges and universities receiving federal aid (aid includes student loans for tuition payments) adjudicate all accusations of sexual assault made by students against other students or employees of that institution. Because rape and sexual assault are felonies, the local or campus police previously handled investigations when students (overwhelmingly female) claimed to have been raped or sexually assaulted.

The Department of Education’s 2011 ruling, made famous by its “Dear Colleague” letter from its Office of Civil Rights, declared that if a student made such an accusation, the college or university must adjudicate the matter and make a ruling for or against the accusation based upon the “preponderance of the evidence” standard, which is what is used in civil court. The letter cited the thoroughly-debunked “studies” that one in five women on a college campus is sexually assaulted or raped and demanded that schools do something about it.

Lest anyone think that the OCR wanted simple fairness, one should think again. The following portion of its long letter lays out the implicit pro-conviction bias in the Obama administration’s policies:

While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. (Emphasis mine)

In reading “between the lines” of the letter, it is clear that OCR is demanding that more male students be convicted of rape and sexual assault, and the fact that OCR is “investigating” about a 100 colleges and universities because they acquitted one or more accused males provides a factor of intimidation for any institution that might want to be even-handed in how it handles accusations. Given that most higher education administrators are hardened leftists, the institutions received the “proper” signals from the DOE and have proceeded to set up what only can be called kangaroo courts in which an accusation by itself is considered to be incontrovertible proof of the rape or assault.

While there have been numerous examples of male students convicted and then expelled for “sexual assault,” the case of Caleb Warner, a student at the University of North Dakota, demonstrates just how biased the process has become and it also demonstrates that the Obama administration did not make its demands out of good will. Warner was convicted and expelled from the University of North Dakota, which used the standards demanded by the OCR.

However, when the Grand Forks police investigated the charges, police not only declared that no rape had taken place, but filed charges of reporting false charges to the police, a Class A misdemeanor, against the accuser. Even in the face of overwhelming proof that Warner’s accuser lied about what happened, UND still refused to back down and would not expunge the conviction. While UND officials later relented in the face of overwhelming publicity, including an op-ed article by Harvey Silverglate that appeared on the editorial page of the Wall Street Journal, the university’s stubbornness reflected what today has become a staple of how such cases are handled in higher education.

As one can imagine, the DOE’s ruling has created a poisonous atmosphere on campus. For example, take the recent case of Jack Montague, the captain of Yale University’s men’s basketball team that recently won the Ivy League championship and earned a trip to the NCAA tournament. Yale expelled Montague last February just months from the senior’s scheduled graduation, claiming he had sexually assaulted a female student. (The underlying facts of the case, which are not in dispute, are included here.)

When members of the basketball team wore T-shirts at a game that supported their former teammate, Yale’s campus erupted in a predictable outrage and feminists placed signs all over campus that declared: “Stop Supporting a Rapist.” As KC Johnson points out, however, no police department or prosecutor would be able to charge Montague with rape, given the actions the female accuser had taken on the night in question when Montague supposedly “raped” her.

However, Yale’s procedures are based not on actually getting to the bottom of an accusation, but rather putting window dressing on biased policies. Johnson writes:

At Yale, the critical procedural obstacles for an accused student include a denial of direct cross-examination of the accuser; the lack of any meaningful right to legal representation in the disciplinary process; and severe restrictions on the amount of evidence he can possess, due both to the OCR-mandated haste with which sexual assault campus cases must proceed and to Yale’s inability (like all schools) to subpoena evidence. Even with these restrictions, Yale doesn’t promise to share all the evidence from its “investigation”—even all the exculpatory evidence—with the accused student or his lawyer.

While Yale is a private university and can have whatever kangaroo court policies it wants, state universities are under more pressure to have fair proceedings. However, attorneys have sought to overturn so-called fair proceedings for those that would almost always result in a “guilty” verdict against the male accused. For example, in a recent lawsuit eight women filed against the University of Tennessee alleging the university somehow condones campus rape, one of the examples the lawsuit uses to make an example is the legal procedure made available in all Tennessee public universities for those accused of sexual assault, which is

…that gives the accused the right to attorneys and the ability to confront their accusers through cross-examination. An administrative law judge, appointed by the school chancellor, then oversees what the plaintiffs are calling a “mini-trial.”

This is something the ancients once called “due process,” and the plaintiff’s attorneys in this case have targeted that procedure:

“This is a big issue in our case — if a student is facing discipline they can invoke that procedure law and have a mini-trial with a judge and cross examination that is contrary to Title IX and the Violence Against Women Act,” (attorney David Randolph) Smith told The Huffington Post. “You’re not supposed to further harass somebody by putting them through the meat grinder procedurally.”

Policy-wise, I have no doubt Smith is correct. The Obama administration clearly is against any form of due process on campus that might not reflect something akin to the infamous Nazi court of Judge Roland Friesler, who always found grounds for conviction. While universities like Yale might have administrators who act despicably, nonetheless they are doing so under expectations from federal officials holding the purse strings for millions of dollars of direct and indirect payments to higher education. One can say that Yale and the University of North Dakota simply are doing what the defendants at the Nuremburg Trials claimed as justification for their actions: they were just following orders.

Not surprisingly, there has been a rash of Title IX-based lawsuits against colleges and universities claiming that these institutions are creating a “hostile climate” for females on campus, and that anything less than a “guilty” verdict with expulsion of the male student to follow is “proof” that a hostile climate exists. That such a mindset inevitably leads to a poisonous legal and social atmosphere on a college campus is an understatement.

KC Johnson quotes the late Edmund Sears Morgan, the Yale history professor who represented an academic past that Yale seems to have abandoned, a quote that speaks volumes about what the DOE and its supporters have unleashed on campus:

When any group of people become sufficiently intent on attacking a particular evil, they are likely to discard as obsolete and ineffective any ground rules that society has developed for the peaceful or fair achievement of social objectives.

Although I have not mentioned what I see to be the oversexualized atmosphere on college campuses and the immoralities of the so-called hookup culture, no doubt the lack of sexual mores and the culture of binge drinking on campus have exacerbated and clouded the issues of determining whether or not someone has committed sexual assault. Whether one can call it rape or not, at least in individual cases, there is no doubt that things are out of control and that lives are being harmed.

Feminists, however, already having done away with all of the traditional taboos regarding women and sex, have politicized sex instead, and have tossed nearly every sexual encounter between men and women into the political looking glass. Having dealt the death blow to the idea that sex is relational in nature, feminists and their allies on campus and in government have done what governments have done for eternity: declare something to be criminal that once was legal, and then create the Alice-in-Wonderland process for dealing with the “crimes.”

There are some who believe that the Obama administration simply made an error in judgment when it ordered colleges and universities to adjudicate accusations of sexual assault on campus. After all, people argue, this is a matter left to the police and experienced investigators.

I believe, however, that what we see currently is exactly what President Obama and his underlings wanted to happen. The recent OCR actions have made higher education administrators even more beholden to the federal government, and the kangaroo court procedures both empower the political left and enable leftists to make incessant demands because campuses, after all, are cesspools of sexual assault and of enabling the “rape culture.” Nothing promotes the politicization of life better than chaos, anger, bitterness and broken relationships.

At the center is Title IX, which has proven to be the Trojan Horse that has enabled the federal government to control and direct higher education. Like so many other federal laws, what began as something that appealed to common sense has morphed into the monster that ate common sense and common decency. As the Trojan Horse enabled the Greeks to sack Troy, so Title IX has enabled federal bureaucrats to micromanage the affairs of American institutions of higher education to the point where confrontation has conquered civility and propaganda has replaced anything that once resembled learning.

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