The Transformation of Title IX: Regulating Gender Equality in Education
reviewed by Elizabeth J. Meyer - June 13, 2019
Title: The Transformation of Title IX: Regulating Gender Equality in Education
Author(s): R. Shep Melnick
Publisher: Brookings Institution, Washington D.C.
ISBN: 0815732228, Pages: 336, Year: 2018
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The Transformation of Title IX: Regulating Gender Equality in Education by R. Shep Melnick is a detailed and well-researched text that explores the complex matters related to implementing, interpreting, and enforcing Title IX since it became law in 1972. It is a valuable and highly recommended read for anyone interested in the intersection of law, policy, and practices related to gender equity in educational institutions in the United States.
Dr. Melnick provides a comprehensive description of the evolution of Title IX, how it has shaped educational institutions, and how key stakeholders have impacted the interpretation and enforcement of the law over time. However, I have concerns about his discussion of certain issues and his omission of relevant research on the topics of sexual harassment, transgender youth, and campus sexual assault. He also demonstrates a limited understanding of the concept of equal educational opportunity. Despite his opening statement of gratitude to Title IX for contributing to the expansion of educational and athletic opportunities for [his] daughter, (p. ix) his language and tone throughout the book are far more critical of efforts made under the aegis of Title IX to ensure people do not experience discrimination on the basis of sex in educational institutions.
Part One of this book is titled Title IX in the Civil Rights State. These first four chapters provide a valuable review of the historical context surrounding the passage and slow implementation of Title IX. Melnick introduces his term, the civil rights state, which he describes as, the extensive set of statutes, court decisions, and administrative regulations, guidelines, interpretations, and settlement agreements designed to prevent and rectify discrimination based on race, ethnicity, religion, national origin, sex, disability, age, and sexual orientation (p. 13). He likens it to its cousin, the American welfare state (p. 13) and calls it a form of social regulation (p. 14) that he persistently argues is beyond the scope of federal regulation. His extensive use of quotation marks around terms such as social regulation (p. 14), civil rights (p. 13), rights talk (p. 18, p. 132), affirmative consent (p. 26, p. 239), masculinity (p. 220), and rape culture (p. 199) indicate that he does not endorse these concepts, inviting the reader to join him in disbelieving the perspectives these frames offer.
Such discursive moves subtly and consistently encourage the reader to perceive the evolution of Title IX interpretation and enforcement as a conspiracy of Office of Civil Rights (OCR) administrators, federal judges, and Title IX coordinators who are seeking to expand their power by placing unreasonable regulatory burdens on educational institutions. However, my own research indicates that Title IX coordinators in K-12 schools are often inaccessible, under-prepared for the scope of their duties, and spend a small percentage their time focusing on Title IX-related responsibilities (Meyer & Quantz, 2019; Meyer, Somoza-Norton, Lovgren, Rubin, & Quantz, 2018). The situation is better at many colleges and universities, though 30% still do not identify Title IX coordinators on their websites (Richards, 2016). Melnick provides no evidence supporting his assertion that Title IX compliance offices are, exaggerating the demands of federal administrators and judges in order to extend their authority and enhance their status (p. 17).
Melnick also writes at length about what he calls institutional leapfrogging. He argues that OCR agency administrators and federal judges deciding Title IX cases consistently built on one another to (inappropriately, he argues) expand regulation (p. 15) and make end runs around constraints placed on them (p. 39). It is clear that he disagrees with how administrators and judges are interpreting and enforcing Title IX, but he also consistently points out that much of the language in Title IX legislation and legal decisions is too vague (p. 14, p. 242) or ambiguous (p. 232). Because of the general language in the original law, it seems guidance from the OCR and court judgments are essential to support educational institutions compliance efforts. However, Melnick argues more strongly for the OCR to engage in rulemaking procedures outlined in the Administrative Procedure Act when communicating its interpretation of the law (pp. 4244) rather than relying on these judgements and guidance.
I found the two chapters on the history of Title IX and OCR and the four chapters on athletics to be the richest with empirical evidence. In Chapters Three and Four he provides detailed and clear descriptions of key junctures in Title IX and OCR history grounded in legal decisions, executive branch transitions, and OCR guidance documents. In Chapters Five through Eight, Melnick argues strongly that Title IX has been overly focused on athletics, including the damage that the big business (p. 81) of college sports, especially football, has inflicted on Title IX enforcement. He provides ample supporting research endorsing his perspective that Title IX has been a triumph in expanding athletic opportunities for women and a tragedy due to the rampant corruption, exploitation of young athletes, and diversion of scarce educational resources (p. 132). He clearly spells out the individual and institutional harms of embracing NCAAs male model of athletics (p. 145).
His arguments were less research-based in the chapters that focused on sexual harassment, campus sexual assault, and transgender students (Chapters Nine through Twelve). In these sections, he often dismissed evidence that contradicted his arguments without providing citations to support his critique. For example, when discussing the White House Task Force on sexual assault on college campuses, he writes:
The report states unequivocally that one in five women is sexually assaulted in college. If this controversial statistic is correct, then in the sixteen years since the Department of Educations Office for Civil Rights (OCR) had first issued rules on sexual harassment, nearly 10 million college students have been sexually assaulted. To those who believe this claim is inaccurate, the Obama administrations initiative is a long-overdue response to a problem that colleges have swept under the rug. To those who question that figure, it is a prime example of regulatory overreach by the federal government. (p. 149)
What Melnick accomplishes here is seeding doubt in the White House Task Forces findings. I was able to find other peer-reviewed studies that provided even more troubling statistics that indicate the Task Force statistics are a conservative estimate of the problem. One recent study of over 10,000 college students found that one in four heterosexual women, gay men, and bisexual men experience a form of sexual assault in college and that bisexual women experienced assault at even higher rates (two in five) (Ford & Soto-Marquez, 2016). Rather than bringing in additional relevant evidence to fully discuss the issue, Melnick overlooks relevant research that provides data that justify the OCRs efforts to strengthen their responses to sexual harassment and assault cases in educational institutions.
One other important area of concern is his treatment of the potential of Title IX to prevent discrimination against transgender people in educational institutions. For example, he describes the 2016 Dear Colleague Letter (DCL) regarding the treatment of transgender students as a transgender rights experiment (p. 226), claiming that youth in schools are experimenting with new identities (p. 230) and shouldnt get the same protections as adult employees under Title VII. His language diminishes the severity of the negative treatment of transgender people, well-documented in research, and its long-term impacts on their educational outcomes and health (Beemyn, 2012; Greytak, Kosciw, & Boesen, 2013; Kosciw, Palmer, & Kull, 2014; McGuire, Anderson, Toomey, & Russell, 2010; Russell, Ryan, Toomey, Diaz, & Sanchez, 2011; Russell, Sinclair, Poteat, & Koenig, 2012). He reduces school-related challenges that transgender students face to embarrassment and discomfort (p. 246) and argues that other students rights to privacy should supersede those of transgender students. Again, he omits research that demonstrates that transgender students experience disproportionately higher rates of exclusion from school activities, physical and psychological violence, and related academic harms1 than cisgender2 students (Greytak, Kosciw, Villenas, & Giga, 2016; Movement Advancement Project & GLSEN, 2017). This research demonstrates clear barriers to students access to education.
Melnick concludes his book by lamenting that Title IX enforcement has shifted from ending exclusionary institutional practices to correcting public stereotypes (p. 260) and reasserts that administrators, judges, and legislators should attend to bringing Title IX regulation back to basics by focusing on educational opportunity [emphasis in the original] (p. 263). I would invite Dr. Melnick and others with similar views to study Ken Howes book (1997) Understanding Equal Educational Opportunity: Social Justice and Democracy in Schooling for an in-depth analysis on the differences between equal educational opportunities and educational opportunities worth wanting. Howe argues, essentially, that removing formal (legal) barriers or addressing individual discrimination does not create meaningful educational opportunities. He asserts that, in order to improve access and equitable educational outcomes:
The disaffected dont seek an education that provides compensation so that they may enjoy an equal opportunity to assume pre-defined roles within the status quo; rather, they seek a renegotiation of what educational opportunities have worth in a way that acknowledges and incorporates their group experiences, interests, and identities. (Howe, 1993, p. 334)
Overall, I found this text very informative and will use it as a valuable resource in my continuing Title IX research. I also encourage others who read it to supplement it with other texts to provide additional balance and relevant research evidence.
Beemyn, G. (2012). The experiences and needs of transgender community college students. Community College Journal of Research and Practice, 36(7), 504510.
Ford, J., & Soto-Marquez, J. G. (2016). Sexual assault victimization among straight, gay/lesbian, and bisexual college students. Violence and Gender, 3(2).
Greytak, E., Kosciw, J., & Boesen, M. (2013). Putting the "T" in resource: The benefits of LGBT-related school resources for transgender youth. Journal of LGBT Youth, 10(12), 4563.
Greytak, E., Kosciw, J., Villenas, C., & Giga, N. (2016). From Teasing to Torment: School Climate Revisited, A Survey of U.S. Secondary School Students and Teachers. Retrieved from https://www.glsen.org/article/teasing-torment-school-climate-revisited-survey-us-secondary-school-students-and-teachers
Howe, K. (1993). Equality of educational opportunity and the criterion of equal educational worth. Studies in Philosophy and Education, 11, 329337.
Howe, K. (1997). Understanding equal educational opportunity: Social justice and democracy in schooling. New York, NY: Teacher's College Press.
Kosciw, J., Palmer, N. A., & Kull, R. M. (2014). Reflecting resiliency: Openness about sexual orientation and/or gender identity and its relationship to well-being and educational outcomes for LGBT students. American Journal of Community Psychology, 55(12), 167178.
McGuire, J. K., Anderson, C. R., Toomey, R. B., & Russell, S. T. (2010). School climate for transgender youth: A mixed method investigation of student experiences and school responses. Journal of Youth & Adolescence, 39(10), 11751188.
Meyer, E. J., & Quantz, M. (2019). Where have all the Title IX coordinators gone? A national survey of K-12 districts. Paper presented at the The Annual Meeting of the American Educational Research Association, Toronto, Canada.
Meyer, E. J., Somoza-Norton, A., Lovgren, N., Rubin, A., & Quantz, M. (2018). Title IX coordinators as street-level bureaucrats in U.S. schools: Challenges addressing sex discrimination in the #MeToo era. Education Policy Analysis Archives, 26(68), 128.
Movement Advancement Project & GLSEN. (2017). Separation and stigma: Transgender youth & school facilities. Retrieved from http://lgbtmap.org/transgender-youth-school
Richards, T. N. (2016). An updated review of institutions of higher educations responses to sexual assault: Results from a nationally representative sample. Journal of Interpersonal Violence, 34(10) 19832012.
Russell, S. T., Ryan, C., Toomey, R. B., Diaz, R., & Sanchez, J. (2011). Lesbian, gay, bisexual, and transgender adolescent school victimization: Implications for young adult health and adjustment. Journal of School Health, 81(5), 223231.
Russell, S. T., Sinclair, K. O., Poteat, V. P., & Koenig, B. W. (2012). Adolescent health and harassment based on discriminatory bias. American Journal of Public Health, 102(3), 493495.
1. Lower GPAs, higher rates of absenteeism, dropping out, and lower persistence to college.
2. Cisgender is a term used to describe any person whose gender identity is congruent with the legal sex assigned at birth by medical professionals.