The Mobilization of Title IX in Colleges and Universities
In January 2016 Senator James Lankford (R-OK) criticized the Department of Education Office for Civil Rights (OCR) for making “sweeping policy changes” around Title IX compliance and enforcement standards, specifically those outlining how schools should address sex-based harassment, bullying, and sexual violence. Sen. Lankford and his colleagues argued that OCR drafted new regulatory policy without subjecting it to the notice-and-comment procedures mandated as part of the Administrative Procedure Act. Assistant Secretary for Civil Rights Catherine E. Lhamon responded by stating that such guidance is just that—guidance—and thus does not carry the force and effect of law.
This recent dispute illustrates a much larger problem plaguing current debates about Title IX’s application in schools: an overall lack of information about how the law has been and can be used to combat sex discrimination in education. To effectively address the problem of Title IX noncompliance and, more broadly, gender inequality in education, we must develop a better understanding of it.
My research provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level over the last two decades. I draw from a new dataset I constructed using information acquired through seven Freedom of Information Act Requests filed over 18 months. The dataset contains all resolved postsecondary-level Title IX complaints filed with OCR against allegedly noncompliant schools from 1994 to 2014. Analysis of these new data generates three main empirical conclusions:
- The mobilization of Title IX at the postsecondary level has increased substantially in the last 15 years. The number of Title IX complaints filed with OCR against four-year nonprofit colleges and universities began to trend upward in 2000. Filings skyrocketed after 2009, reaching a record high in 2014.
- Title IX has been mobilized in response to different issues over time. Complaints citing discrimination in academics were the most common type of complaint filed for nearly all of the last 20 years. Athletics complaints, on the other hand, were the least commonly filed. The number of complaints citing sexual harassment started to grow in 2006, proliferating at an even faster rate beginning in 2009. In 2014, complaints citing sexual harassment nearly equaled athletic and academic filings for the first time.
- The mobilization of Title IX is institutionally uneven: the number of complaints filed by school type is not proportional to the number of students enrolled in those schools. More complaints are filed against private schools and the most selective schools, relative to their total enrollments. Further, certain types of complaints are more often filed against certain types of institutions. Perhaps most interesting is that the most selective schools and schools in more liberal states, after adjusting for enrollment, face higher numbers of sexual harassment complaints.
These findings have significant policy implications. By showing that the mobilization of Title IX is institutionally uneven, my research suggests that individuals in some institutional settings feel a greater sense of enfranchisement than those in others. Colleges and universities, particularly public institutions, can do more on the local level to cultivate a sense of enfranchisement among community members by, for example, encouraging students’ active participation in the implementation of Title IX. This research also demonstrates that certain types of schools tend to face higher numbers of specific kinds of complaints, which suggests that the problem of sex discrimination in higher education may look different in different institutional contexts. Thus, it is important that, in the midst of the current top-down national effort to modify Title IX, schools retain some autonomy to implement the law in ways that address the idiosyncrasies of local institutional cultures. One-size-fits-all policy changes neglect the diversity of university cultures and, hence, the different elements within those cultures that exacerbate gender inequality. Finally, with the increased mobilization of Title IX overall is also critical that OCR ensures procedural fairness. Its recent focus has been on expediting its procedures through hiring 200 additional lawyers and investigators. Yet the fairness of procedures is far more important to the aggrieved than the swiftness of resolution. Transparency around the complaint process is one component of procedural justice that can be strengthened, especially since the process is often lengthy.
To be sure, these data do not measure the incidence of sex discrimination in schools or which schools are the worst offenders. Not every incidence of sex discrimination results in an OCR complaint, and people may tend to file certain types of complaints with the Department of Education. These data do, however, allow for the most comprehensive analysis yet of how Title IX has been mobilized.
Rather than debating whether or not OCR has violated the Administrative Procedure Act with recent guidance on Title IX compliance, policymakers should be working to develop focused interventions that can reduce sex discrimination in education and thus strengthen schools’ capacity to reduce social inequality. Empirical data on how the law has been mobilized, such as those I use in my research, can advance this effort. Building our knowledge of how people use Title IX to address perceived gender inequality in schools is the first step towards making the American educational system and, hence, American society more equitable.
Celene Reynolds is a Policy Fellow at ISPS and a graduate student in the Department of Sociology. Her research interests include social change, law, educational organizations, and gender and sexuality.