How Title IX Became a Political Weapon

From Jessica Gavora, at WSJ, "Now that the law is used to suppress free speech, even liberals are alarmed. Where have they been?":

The road that took Title IX from a classically liberal antidiscrimination law to an illiberal gender-quota regime began in 1996 with an innocent-seeming “Dear Colleague” letter written by federal education officials in the Clinton administration. The letter targeted colleges and universities struggling to answer the difficult question of what constitutes (unlawful) discrimination under Title IX in sports programs that are already segregated on the basis of sex. It instructed schools that quotas—equalizing the participation of men and women in athletics, despite demonstrated disparities of interest—were the way to comply with the law.

Activists who had been instrumental in creating the new standard took the federal guidance and ran with it. Aided by the trial bar, they initiated lawsuits that enshrined the new bureaucratic “guidance.” The case brought against Brown University in the early 1990s by a coalition of feminists and trial lawyers set the stage. It alleged that Brown—which offered more women’s sports teams than men’s at the time—had violated the law by downgrading two women’s teams. The university produced reams of data showing that women at Brown had more opportunities to play sports than men, but more men than women played intramural sports by 3 to 1 and club sports by a whopping 8 to 1.

To the applause of the Clinton administration, the court ruled that such data didn’t matter. The responsibility of the school wasn’t to provide equal opportunity to participate in sports—it was to educate women to be interested in sports. In effect the ruling said that Brown women didn’t know what they wanted. They only thought they were dancers or actors or musicians. They had to be taught that they were really athletes. They didn’t know what was good for them but the government did.

With that, Title IX was transformed. It no longer mattered if schools offered equal or more-than-equal opportunities for women in athletics. If colleges couldn’t produce enough actual female bodies on the playing field, the schools were forced to cut male athletes until the participation rates of both sexes were the same. No legislation, let alone public discussion, made this so. When it comes to Title IX, quaint notions of the people’s representatives having anything to do with the law ended when the law passed.

The movement of Title IX into areas as remote as the mere discussion of sexual politics on campus has followed the same trajectory. Beginning in 2011 the Obama Education Department wrote “Dear Colleague” letters to schools. Suddenly, schools were responsible for harassment and assault that occur off campus. A lower standard of evidence was established to prove the guilt of the accused. Earlier protections for academic freedom and free expression were dropped.

With that, the pas de deux with activist groups commenced. Title IX investigations of accusations of sexual assault and harassment on campuses exploded. Just as they had with Title IX in sports, activists went in search of victims to be the media face of a rape crisis—and to become plaintiffs in litigation against schools.

The notorious and now-debunked story of the University of Virginia’s “Jackie” gang-rape is a case in point. Rolling Stone reporter Sabrina Rubin Erdely was, in her words, searching for a victim who would show “what it’s like to be on campus now . . . not only where rape is so prevalent but also that there is this pervasive culture of sexual harassment/rape culture.”

The new demands to combat what federal education officials also call a “rape culture” on campus are so excessive that even current and former Harvard Law professors have publicly complained that their school’s attempt to comply has undermined due process and is “overwhelmingly stacked against the accused.”