Education and Title IX: Back to “Separate But (Un)equal”

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“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 educational program or activity receiving federal financial assistance.”

—Title IX of the Education Amendments, 1972.

With these few words added to national law, sex discrimination in educational institutions receiving federal funds became illegal.  Because many private schools accept some federal money, the law covers them, as well as public schools at all levels—from kindergarten through graduate school. 

Title IX was needed because sex discrimination in education had always been rampant. Most people didn’t realize it, because in those days sex discrimination was viewed as “normal”: It was “normal” that girls couldn’t have school sports teams, couldn’t be crossing guards, could be barred from medical, engineering and law schools.  Pregnant girls were expelled, and pregnant teachers fired when they began to “show.” And sexual harassment was “normal” too—after all, “boys will be boys.”

Education and Title IX: Back to “Separate But (Un)equal”
Despite its success, Title IX remains under constant attack, with rules and enforcement depending on which party controls the government.  (diane cordell / Flickr)

There is no doubt that Title IX has been a success.

  • In 2018, girls’ participation in high school athletics set an all-time record.

Though the word “sports” doesn’t appear in the law, Title IX has become closely linked in the public mind with increased opportunities for girls in athletics.

Conservatives charge that it causes loss of men’s teams, despite research that shows that the biggest reason minor men’s sports are dropped is the football budget—which takes the lion’s share of athletic dollars.

Title IX and Gender Segregation

Despite its success, Title IX remains under constant attack, with rules and enforcement depending on which party controls the government. 

Because gender-segregated classrooms and schools before the law was passed had been a hindrance to equal opportunity for girls, single-sex classes and extracurricular activities were largely limited by Title IX to sex education and physical education classes that included contact sports.

But in 2002, President Bush signed the No Child Left Behind Act, containing a little-noticed provision calling on the Department of Education to “promote” single-sex schools allowing gender segregation for the first time since 1972. 

These changes were not made by Congress, but by Bush appointees—underscoring the importance of which party is in power. School districts can now set up single-sex options, as long as the other sex is offered something “substantially” equal. “Substantially” is not defined, nor is the method for measuring success of single–sex education.

Since the weakened the guidelines of Title IX were issued, there has been a proliferation of sex segregated schools and classrooms—though there is no consistent evidence to indicate that kids learn better in these classrooms than they would in mixed gender schools with the same resources.

Livingston Parish, La., went so far as to announce a plan to compel gender segregation in all classes in a formerly co–ed school.  They cited an “expert” with no education credentials who contended that “boys need to practice pursuing and killing prey, while girls need to practice taking care of babies.”  The plan was dropped only after the American Civil Liberties Union filed suit.

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But just because a few schools have dropped their gender-stereotyped plans under threat of litigation doesn’t mean that single gender education is dead.

A comprehensive study by the Feminist Majority Foundation found that single-sex education has sprung up in the majority of states in violation of Title IX, which requires extensive documentation as to how sex segregation contributes to the elimination of discrimination.

Title IX and Sexual Assault

Title IX has played an increasingly important role in the past few years when it comes to sexual assault—including harassment—on college campuses. 

Education and Title IX: Back to “Separate But (Un)equal”
Rally to stand with rape survivors in Minneapolis on December 17, 2016. (Fibonacci Blue / Flickr)

In addition to being against criminal law, sexual assaults are a violation under Title IX.  The Trump administration has dealt enforcement the biggest setback in decades. The president appointed Betsy DeVos, a billionaire campaign donor, as Secretary of Education (confirmed by the Republican Senate with a tie-breaking vote from Vice President Pence). DeVos has no education degree or teaching experience, has never attended a public school or sent her children to one, and is on record as advocating funding of charter schools religious schools over public education.

The Trump Education Department under DeVos recently issued new rules governing campus sexual assault and harassment critics say will result in many fewer cases being investigated.  Proponents say the rules will just grant due process and even a playing field that is tilted against the accused.

The new rules are extensive, but here are some lowlights:

  • A person accused of sexual misconduct is guaranteed the right to have a lawyer cross-examine the accuser in a live hearing, but the parties can be in separate rooms, using technology if needed.
  • Requires colleges to act only if  “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
  • Gives colleges a new option to use a higher standard of proof in deciding whether sexual misconduct occurred. Previously a “preponderance of the evidence” standard was used, meaning it’s more likely than not that the misconduct occurred. The new rules allow colleges to opt for the higher “clear and convincing evidence” standard used in criminal courtrooms before initiating action.

Questions for Political Candidates

  • Do you support the new Title IX rules from the Trump administration making it much harder to file complaints of sexual assault and sexual harassment on campus and essentially putting victims on trial?
  • Do you believe schools planning single gender classes should be required to thoroughly justify such classes as to their effects in overcoming discrimination, as required by law?
  • Do you think high schools should be required to publicly disclose gender equity data about their athletic programs, including funding, facilities and sports opportunities?


Martha Burk is money editor at Ms.