I Never Said Title IX Was Unconstitutional, Or Only Applied To Sports, Contrary To Media Matters’ Claims

Over the years, I have often written about applications of Title IX to areas other than sports, once handled Title IX cases as a civil-rights lawyer (I used to work in the Education Department’s Office for Civil Rights), and I have never suggested that Title IX itself is “unconstitutional” (as opposed to certain strange interpretations of it by left-wing bureaucrats).

So, I was surprised to see Media Matters claim that I believe weird things which no lawyer would ever think, much less a lawyer who has worked in civil-rights enforcement, such as the notion that Title IX “does not apply beyond scholastic sports,” “that Title IX’s scope is limited to athletics,” and that Title IX has already been ruled “unconstitutional”  by the courts.  (These are not the only false claims made by Media Matters, but these are the most obviously false ones; I will address the other erroneous claims later when I have more time). [Note: Media Matters has now issued a partial correction.  See the Update at bottom].

Media Matters attacked me for raising the alarm about White House plans to impose new Title IX guidelines in the future that could result in pressure on schools to use gender-based affirmative action in math, science, engineering, and technology, or gender-based quotas. The President has said that he wants to do something similar for math and science to what has been done in college sports, where colleges have often capped men’s participation to match the level of women’s participation.

The New York Post published an interesting article, about the potential imposition of quotas in math and science education, that cited me in passing, saying:

Moreover, notes Hans Bader of the Competitive Enterprise Institute, several federal courts have ruled that applying quotas or gender ratios to education rather than sports is unconstitutional under the Equal Protection clause of the 14th Amendment.  [Emphasis added].

Media Matters, apparently quoting an earlier inaccurate version of that article that was corrected before Media Matters wrote about it, quotes The New York Post as follows:

Moreover, notes Hans Bader of the Competitive Enterprise Institute, several federal courts have ruled that applying Title IX to education rather than sports is unconstitutional under the Equal Protection clause of the 14th Amendment. [New York Post, 7/14/12]  [Emphasis added].

My blog post on the subject said nothing of the kind about the Title IX statute being unconstitutional.  It said that quotas or gender ratios were unconstitutional (outside the context of sports), not that Title IX’s ban on discrimination was unconstitutional.  As I noted, “Courts have generally forbidden state colleges to engage in gender-balancing in areas other than intercollegiate athletics,” citing cases such as Johnson v. Board of Regents of the University of Georgia, 106 F. Supp.2d 1362 (S.D. Ga 2000) and Back v. Carter, 933 F.Supp. 738 (N.D. Ind. 1996).

Courts have also invalidated gender-based quotas and set-asides in other non-sports contexts, such as government contracts and licensing.  (For example, the Supreme Court summarily affirmed an appeals court ruling striking down gender-based and race-based affirmative action in government contracts in Milliken v. Michigan Road Builders, 489 U.S. 1061 (1989), and Justice Thomas invalidated the FCC’s gender-preference for women in licensing in Lamprecht v. FCC (1992)).

I have never suggested that Title IX only applies to sports.  Title IX bans sex discrimination against women or men in academia as well.  I have written at length about Title IX in non-sports contexts, have been cited by columnists about non-sports Title IX issues, and have worked on court cases and administrative appeals that involved sex discrimination claims against universities having nothing to do with sports.  Media Matters’ erroneous claim that I think that Title IX only applies to sports is contradicted by the facts.

The Education Department is now apparently claiming that it has no current plans to impose quotas in math and science.  This reassurance means little, since the Education Department falsely denies that it has ever imposed quotas even in sports, even though it has done just that, especially since quotas are the only practical way to permanently comply with the Education Department Policy Interpretation’s three-part test governing intercollegiate athletics.

Outside the realm of intercollegiate sports, pressure to adopt quotas is illegal even if there theoretically are alternative ways of complying.  See Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997); Lamprecht v. FCC, 958 F.2d 382 (D.C. Cir. 1992); Lutheran Church v. FCC, 141 F.3d 344 (D.C. Cir. 1998).  (As the Heritage Foundation has noted, the Obama administration rescinded the Bush administration’s guidance on an alternative way to comply, an alternative to quotas that was already almost impossible to satisfy even under the Bush administration, which was less supportive of quotas than its successor.)

The Title IX “best practices” guide, which is endorsed by the White House, effectively endorses both quotas and “disparate impact” challenges to sensible standards and admissions criteria for math and science programs (like standardized tests; girls have better average high-school grades than boys, but worse math SAT scores, so feminist commentators argue that using the Math SAT in admissions has a “disparate impact” on them, even though basing admissions decisions on the SAT and grades together, not just grades alone, better predicts college success than just relying solely on grades.  They also argue that time limits on standardized tests, and penalties for guessing, are sexist.)

The “best practices” guide expressly encourages reverse discrimination by colleges, by withholding funding which a math or engineering department would otherwise receive if it is not considered “diverse” enough (See TITLE IX & STEM: Promising Practices for science, technology, engineering, & mathematics, pp. 17-18).  It cites the following as a model for colleges to follow to comply with Title IX:

A university’s College of Engineering allocates funds to departments based on an algorithm, including characteristics of the current student population. Diversity is one of the criteria.

This financial reward for reverse discrimination is illegal.  See Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) (an appeals court struck down law giving contractors an incentive to give subcontracts based on race or gender to promote diversity; bids were awarded not just based on low cost, but also on diversity among subcontractors).

The Title IX “best practices” guide also suggests on page 18 that colleges deemphasize standardized tests like the GRE (even though such tests are used as a factor in admissions because they help predict performance after admission).

This “best practices” guide applies disparate-impact bans (that is, bans on so-called “unintentional discrimination,” which judge a college policy or practice based on its effect rather than whether it treats anyone differently) to Title IX, even though the Supreme Court cast doubt on educational disparate-impact rules in a case involving the statute that was a model for Title IX, the Title VI statute dealing with race discrimination, see Alexander v. Sandoval, 532 U.S. 275 (2001), a case in which the Supreme Court called such disparate-impact rules strange, and said that individuals could not sue under Title VI for “disparate impact,” only intentional discrimination. On page 8, the guide says that colleges:

must evaluate, in terms of the requirements of Title IX, current policies and practices and their effects concerning admission of students, treatment of students, and employment of both academic and nonacademic personnel . . . Recipients must modify any of these policies and practices that do not or may not meet the[se] requirements  . . . The regulations also require recipients to address aspects of program administration, such as admissions, recruitment, academic advising, policies pertaining to parental and marital status, and methods of administration or utilization of criteria that may have the effect of discriminating based on gender . . . Title IX creates a continuing obligation for such programs to assess their program environments [for potential disparate impact].

Even if the Education Department adopts guidelines promoting quotas, it will not formally require quotas as the only way of complying, but rather make them the most viable way of complying for some schools.  That will enable it to argue with a straight face that it is not imposing quotas. For example, the EEOC’s Uniform Guidelines don’t explicitly require affirmative action at all, but promise employers that would otherwise might be sued by the EEOC for disparate-impact that they won’t be sued by the EEOC for such disparate-impact if they use affirmative action to offset any disparate impact – thus, rewarding quotas even if not directly requiring them.  Never mind that using affirmative action to offset “disparate impact” is theoretically illegal under court rulings like People Who Care v. Rockford Board of Education, 114 F.3d 528, 534 (7th Cir. 1997).

But legally, quotas are unconstitutional even if they are made one of several alternative ways to comply with a regulation.  Outside the context of intercollegiate sports (which is a unique “separate-but-equal” world where teams are already based on gender, making sport quotas less insidious than academic quotas), pressure to adopt quotas is illegal even if there theoretically are alternative ways of complying.  See the D.C. Circuit Court of Appeals’ decision in Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), which said that a religious broadcaster couldn’t be pressured to increase its minority hiring to meet hiring goals, even if it could theoretically satisfy the FCC’s diversity rule showing its “good faith” efforts to achieve racial balance through burdensome paperwork obligations, rather than actually meeting the quota.

Update, July 26:  Media Matters has now disclosed to readers that I deny making one of the claims they had originally attributed to me, in an update to its blog post:

UPDATE: Hans Bader has informed Media Matters that the original July 14 New York Post column by Kyle Smith –  “Why Obama administration shouldn’t use Title IX to balance math classes” – misinterpreted what he said. The original attribution to him in the Post, quoted below, has since been changed in the online version.