PLANK JUNE 22, 2012
When former Indiana Senator Birch Bayh* wrote Title IX forty years ago, his goal was very simple: to make sure women could get a good education. He wanted to force schools to accept women as students, let them into classes, and hire them as professors. And he wanted to make professions that require higher education accessible to women.
As the law, which prohibits educational programs that take federal money from discriminating on the basis of sex, celebrates its fortieth birthday on Saturday, the changes Bayh was after have, to a stunning degree, happened—women have been earning more undergraduate degrees than men since 1996 and in 2009 overtook them in the attainment of doctoral degrees; 47 percent of legal degrees and 48 percent of medical degrees were conferred on women in 2010, compared to 7 percent and 9 percent, respectively, in 1972. Title IX has become most famous for ushering female athletes onto the playing field—an application of Bayh’s law that he told me didn’t cross his mind when he was defending it in the Senate.
Another of the most lasting—and most controversial—legacies of Title IX is, likewise, in an area referenced nowhere in its 37 words: sexual harassment. The law made national headlines once again last spring when the Department of Education’s Office of Civil Rights announced that it would investigate whether Yale was violating Title IX by allowing a hostile sexual environment. How did a law written to open the doors of classrooms become the staging ground for lawsuits over sexual misconduct?
The answer, strangely enough, is also at Yale. In 1977, in the case of Alexander v. Yale,a group of young women at Yale University used the law to make a revolutionary argument: that sexual harassment and violence constitute discrimination against women. At the time, sexual harassment was considered par for the course on university campuses and in offices across the country. That its tacit acceptance created an environment in which men and women weren’t treated as equals, and that it should be a punishable offense, had not yet entered the American legal imagination.
The Alexander v. Yale argument was the brainchild of Catharine MacKinnon, a thirty-year-old Minnesotan who graduated from Yale Law School in the spring of 1977. She had developed the idea in a paper for a class (using Title XII of the Civil Rights Act of 1964, which concerns discrimination in the workplace), and she was in the middle of expanding it into her first book, Sexual Harassment of Working Women. Some of the plaintiffs in the case, all of whom were current or recent Yale undergraduates, had asked the university to institute reporting and grievance procedures for sexual harassment and been denied. MacKinnon worked with them to craft a complaint to show that Yale turned a blind eye when professors touched female students or pressured them to have sex in exchange for an “A”; that this perpetuated an atmosphere that interfered with female students’ success; and, therefore, that Yale was in violation of Title IX.
In 1980, a judge threw out the five students’ suits on technical grounds but upheld the legal argument that harassment was discrimination. MacKinnon—who is now one of the most widely-read (and controversial) figures in feminist law—had seen revolutionary potential in Bayh’s concise law, and had used it to invent the idea of sexual harassment as we know it today. Alexander v. Yale also precipitated the creation of policies to address sexual misconduct at hundreds of universities across the U.S.— including Yale, which convened a grievance board in 1978, once the hubbub of the case began.
Title IX remains a call to action and a crucial tool for those who believe schools need to take a harsher line on rape and sexual violence.When Vice President Joe Biden and Secretary of Education Arne Duncan issued updated guidelines for Title IX in 2010, they focused on grievance procedures for sexual assault, urging schools to crack down. The past few years have seen a slew of Title IX complaints seeking the reform of sexual grievance procedures—at, among others, Princeton, Duke, the University of Virginia, Harvard Law School, and, once again, Yale. The most recent investigation of Yale closed this month with “no findings of noncompliance,” according to Yale President Richard Levin—though, as one of the complainants pointed out in Slate, the university had to sign an agreement to maintain the new policies it implemented this year, and to keep a close eye on the campus climate and report regularly to OCR. This complaint at Yale was, in many ways, depressingly similar to the case that preceded it by over thirty years: It asked the university to take public displays of misogyny seriously, and to create better recourse for victims of sexual violence and harsher punishments for perpetrators. The echoes of Alexander v. Yale are a reminder of sexism’s insidious hold, and of the progress our society has yet to make.
When I told Bayh about Title IX’s foundational role in sexual harassment law, he told me he doesn’t think “discrimination” is a strong enough term for sexual misconduct and violence. “That’s flat-out criminal activity,” he said. But because universities handle so many harassment and assault cases that occur between students in-house, classifying these crimes as discrimination has turned out to be an effective way to hold institutions accountable.
Bayh said when he talks to young people today, they’ve almost never heard of Title IX, or they have some vague sense that it’s related to women’s sports. But he doesn’t mind. “Equality between men and women is taken for granted, and that’s the best sign of progress,” he said. Sometimes, though, it’s important to stop and remember, and anniversaries provide a natural opportunity. Schools shape each successive generation of American women and men today, just as they did forty years ago, and that means we shouldn’t take Title IX for granted just yet.
*Correction: An earlier version of this article incorrectly stated that Patsy Mink co-drafted Title IX with Birch Bayh. Bayh wrote the law he sponsored in the Senate, and Mink, along with Oregon Congresswoman Edith Green, was a champion of Title IX in the House. We regret the error.