The newspaper quote is surprisingly diplomatic for a man named Moose.
“We have no desire to discriminate against women,” Edward “Moose” Krause, the longtime athletic director at the University of Notre Dame, told The New York Times in 1979. “But we’re not sure exactly what we’re supposed to do to comply with the new Title IX interpretation. It’s still a little confusing.”
The only way to understand the story of Title IX is as a story about administrative mission creep.
He was talking about the Carter administration’s regulatory bombshell: The Office of Civil Rights had just announced that to comply with Title IX, colleges needed to provide athletic opportunities to male and female students “in numbers substantially proportionate to their respective enrollments.”
It’s no wonder Moose found that confusing. Seven years earlier—with President Richard Nixon in the White House—Senator Birch Bayh, Jr., had introduced Title IX before the Senate as a way to end sex discrimination at America’s colleges.
“We are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again,” Bayh said. It was time to “challenge our operating assumptions” about women’s educational abilities and ambitions, he explained. Title IX was designed “to expand some of our basic civil rights and labor laws to prohibit the discrimination against women which has been so thoroughly documented.”
Bayh, the son of an Indiana State University basketball coach, spoke at length about discrimination in college admissions, classes, and the hiring of academic faculty. He didn’t mention athletics once in his speech.
It’s hard to imagine how we got from that moment on the Senate floor to today, with Title IX now cited as colleges’ reason for cutting men’s sports programs and for creating quick-draw tribunals to adjudicate sexual harassment.
The only way to understand the story of Title IX is as a story about administrative mission creep—about regulators whose “interpretation” of the law is more like a cheap tea leaf reading: part fabrication, part magic trick, part scam.
Male Athletes Sue
In 1969, there were 210 men’s NCAA gymnastics teams around the country. Today there are only 15. Gymnastics is one of many men’s programs that colleges have cut to avoid running afoul of Title IX—or, to be precise, afoul of what regulators say Title IX means.
In 1996, under President Clinton, the Office of Civil Rights published a “Clarification” (which, of course, created new confusion): To comply with Title IX, colleges didn’t need “substantially proportionate” sports opportunities for men and women, the Office of Civil Rights said, as long as they could prove they’d continuously expanded sports opportunities for women or accommodated female students’ interests and abilities.
But how do you prove something as vague as accommodation? What counts as continuous expansion? “The Clarification does not provide strict numerical formulas or ‘cookie cutter’ answers to these issues,” the Office of Civil Rights (unhelpfully) said in its letter to colleges. Having proportional men’s and women’s teams was still the easiest way for nervous colleges to comply with Title IX—a “safe harbor,” as the Office of Civil Rights put it.
And so, as female college enrollment climbed, colleges cut men’s sports programs—including gymnastics, track and field, wrestling, and swimming.
Some male athletes sued. Evan Ng, a talented Chicago-born gymnast, was on the University of Minnesota team in 2020 when the university decided to cut the team, citing Title IX. Evan had been doing gymnastics since he was four or five. He’d been a “pretty energetic” kid, he told Pacific Legal Foundation in a 2021 interview, and gymnastics was the only sport that stuck with him. His first solo competition, at around 10 years old, was held at a training center for the Olympics. “My coach told me not to have expectations. Don’t focus on placement. And I ended up getting first,” Evan remembered.
The University of Minnesota recruited him out of high school. Other colleges also wanted him—and offered higher scholarships—but Evan liked the team and coach at Minnesota.
Then, during his freshman year, he and his teammates received a text: There was an all-hands-on-deck Zoom meeting in 30 minutes. “We had no idea what it was for,” Evan said. “And the athletic coordinator tells us that three teams were getting cut.” To align its ratio of male and female athletes with the overall ratio of male and female undergraduates, the university was eliminating men’s tennis, men’s track and field, and men’s gymnastics, the athletic coordinator explained.
Evan and his teammates were shocked. “Everything happened so fast,” he said.
PLF helped Evan file a lawsuit. The University of Minnesota was eliminating teams on the basis of gender—a violation of the Fourteenth Amendment and, ironically, Title IX as originally written.
“Title IX does not require or allow the use of quota-based discrimination on the basis of sex,” PLF argued in the complaint.
But the district court denied Evan a preliminary injunction, and eventually the case was voluntarily dismissed. Other lawsuits, including one filed by athletes at James Madison University, were also dismissed. Courts are deferring to regulators’ interpretation of Title IX.
When the USA Men’s Gymnastics Team won the bronze medal at the Paris Olympics last year, over half the team had attended Stanford University, University of Michigan, or University of Oklahoma—three of the last remaining colleges to still offer men’s gymnastics.
A ‘Terrifying’ Essay
Laura Kipnis isn’t a male athlete in an endangered sports program. She’s a professor and scholar who writes about sexual politics, pop culture, love, and “moral messiness.”
To her own shock, Professor Kipnis found herself the subject of a Title IX investigation in 2015 while teaching at Northwestern University—not for treating her male and female students differently, nor for running an imbalanced sports program, but for an essay she wrote.
Months earlier, in The Chronicle of Higher Education, Professor Kipnis had written about the clumsy way colleges dealt with sexual harassment and assault accusations. She described an email from her university’s Title IX Coordinating Committee about the school’s duty to notify “survivors” about the outcome of sexual harassment investigations. “Wouldn’t the proper term be ‘accuser’?” Professor Kipnis wrote. “How can someone be referred to as a survivor before a finding on the accusation—assuming we don’t want to predetermine the guilt of the accused, that is.” She discussed, without naming names, a student’s recent accusation against a Northwestern professor and the subsequent lawsuit, which had made national news.
Northwestern students marched in protest of the essay. One called it “terrifying.” Professor Kipnis received an email from the university’s Title IX Coordinator: Two students had filed Title IX complaints over the essay. Professor Kipnis was instructed to meet with investigators, who’d explain the charges against her.
“I’d plummeted into an underground world of secret tribunals and capricious, medieval rules,” Professor Kipnis later wrote in The Chronicle of Higher Education, “and I wasn’t supposed to tell anyone about it.”
Since the 1990s the federal government has understood that Title IX’s ban on sex discrimination applies to sexual harassment. But it wasn’t until 2011, with a controversial “Dear Colleague” letter from the Obama administration, that Title IX became the shoddy foundation for a new system of campus justice. According to the Dear Colleague letter, Title IX requires colleges to adopt “grievance procedures” for the “equitable resolution” of sex discrimination and harassment complaints. To comply, colleges created kangaroo courts that lack basic due process. (The first Trump administration rescinded the Obama letter; but the Biden administration restored most of the guidance.)
Title IX—or rather, the Frankenstein combination of regulatory guidance, rules, clarifications, and Dear Colleague letters interpreting Title IX—hasn’t just remade college sports. It has reshaped the entire campus: the way student disputes are adjudicated, the way an administration responds to a professor’s essay, and the fundamental rights anyone has on campus.
Was this what Congress intended in 1972?
The New Title IX
After President Donald Trump took office (again) this year, his Department of Education (again) announced its own rules for implementing Title IX. Among other changes, colleges are now required to hold live hearings with cross-examination for sexual misconduct accusations—a restoration of due process.
For colleges, and college athletes, the back-and-forth Title IX changes between administrations are confusing and frustrating to follow. If colleges are found to be in violation of Title IX, they could lose all federal funds.
“Title IX has become a political football,” The Chronicle of Higher Education notes, “with federal guidance flip-flopping between Trump’s and Biden’s interpretations of the law.”
That’s the consequence of allowing the executive branch to reshape the law in its image instead of enforcing it as Congress intended: Title IX is shapeshifting from one administration to the next, while students—in college for only four years—bear the damage of whatever beast we allow Title IX to become.
