December 27, 1999

Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving Federal Financial Assistance

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Title IX of the Education Amendments of 1972 provided that "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." 20 U.S.C. 1681 (a). It was modeled after Title VI of the Civil Rights Act of 1964.

The Department of Education developed regulations and enforcement policies to ensure compliance with Title IX. The Department's rules subsequently stimulated several court cases. In the 1984 Supreme Court decision in Grove City College v. Bell, the Court determined that the Department had defined "program or activity" too broadly. It concluded that Federal student financial assistance bestowed on colleges created Title IX jurisdiction only over the specific programs that received federal funds. In response to this decision, Congress amended Title IX with the Civil Rights Restoration Act of 1987, which broadened the statutory definition of "program or activity" to include all of the operations of an educational institution if any one part received federal aid.

The Department of Justice has proposed a common Title IX rule for 25 department and agencies, using the rules and enforcement policies of the Department of Education as a model. The proposed common rule would expand the coverage of Title IX by broadening the definition of "program or activity" and extending its applicability to areas outside the direct scope of educational institutions.

Our analysis suggests that the proposed common rule will add significant costs to the provision of educational services in the United States. For example, in the area of collegiate athletic scholarships, any gains that women's sports may receive under the Title IX common rule will be swamped by losses in men's sports. Indeed, we estimate the net of these costs and benefits to be more than $3 billion in terms of foregone income improvements alone. More important perhaps is the fact that the common rule will not appreciably accelerate the rapid gains women are already making in higher education. For these reasons and others spelled out in the attached comment, we urge the Department of Justice to withdraw its proposed rule.