Title IX is ‘bureaucratic sex creep’ gone wild

If you want to see how the federal bureaucracy can mess things up, and create huge new areas of overburdening regulation, just look at what it has done with Title IX of the Education Amendments of 1972.

Title IX simply reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” That’s all. But from this small, simple statement has been created a regulatory Tower of Babel governing sports teams, student discipline and even, and most dubiously, sexual consent.

One doubts that the members of Congress who drafted Title IX intended to produce what Harvard Law School professors Jacob Gersen and Jeannie Suk have called “bureaucratic sex creep,” in which colleges — allegedly to ensure compliance with Title IX’s non-discrimination mandate — micromanage the sex lives of students and subject them to Orwellian levels of surveillance, investigation and supervision.

This has been done not because Congress ordered it, or even because the Education Department issued regulations with notice to the public and an opportunity for comment. Instead, the department’s Office for Civil Rights has issued “guidance,” in the form of letters to colleges and universities stating its opinion as to what the law required.

Having come to this point, what do we do next?

President-elect Donald Trump has named Betsy DeVos to be secretary of Education, but there’s no word yet as to who will head its Office for Civil Rights. But it seems clear that the overreach needs to be rolled back.

One possibility would be to repeal or amend Title IX. Congress could do that, though my concern is if the bureaucracy can make such a hash out of a single sentence, how likely is it to be restrained by any amendment?

Another would be for the new Education Department to issue new binding regulations after notice and comment. Those regulations might say that colleges should turn over complaints of sexual assault to law enforcement authorities, and that things such as “microaggressions” and opinions with which one disagrees do not constitute “discrimination.”

Or, if the Trump administration is feeling mischievous, it could emulate the Obama administration and use guidance to enforce Title IX strictly according to its own views. Perhaps policies that discriminate against fraternities could become grounds for loss of funding based on discrimination. (Especially if university officials use derogatory sexist terms like “frat boy.”) Perhaps admissions criteria that produce disproportionately female student bodies could be analyzed for discrimination under “disparate impact” theories.

Ideally, we’ll take an approach based on due process and common sense, which would represent a considerable change over the past several years’ policies.

Glenn Harlan Reynolds, a University of Tennessee law professor, is a member of USA TODAY’s Board of Contributors.