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In New Book, Professor Contends Bureaucracy is Transforming Law on Sexual Assault and Discrimination

Kaufer Busch argues approach is well-intentioned but not the best way to protect civil rights.

  Monday, January 14, 2019
Dr. Elizabeth Kaufer Busch
Dr. Elizabeth Kaufer Busch

The 37 words in Title IX that prohibit sex discrimination at schools and colleges receiving federal funding have been transformed by a “discretionary bureaucracy” into hundreds of legal requirements, according to a new and timely analysis by Dr. Elizabeth Kaufer Busch.

Busch contends that bureaucracy is comprised of unelected officials in the government’s Office of Civil Rights and by the appointed justices of the U.S. Supreme Court rather than elected lawmakers in Congress.

Congress adopted the law in 1972 so students could receive equal opportunities in college admissions, activities and programs.

“Title IX has been transformed so that it now requires equal numerical outcomes in athletics, protects against sexual assault and harassment by students and teachers, and allows the recovery of monetary damages when a school fails to ensure any of these things,” Kaufer Busch and co-author William Thro write in the newly published Title IX, the Transformation of Sex Discrimination in Education.

Busch is a professor, director of American studies, and founder and co-director of CNU's Center for American Studies. Thro is the general counsel of the University of Kentucky and former solicitor general of Virginia.

The authors describe the origins of Title IX and its evolution, focusing on four critical moments that transformed the meaning of sex equality and discrimination:

  • The establishment of what is known as the Three-Part Test for Athletics. To be in compliance, institutions must demonstrate they offer athletic opportunities proportional to their male-female enrollment, show a history and continuing practice of expanding opportunities for women’s teams, and fully accommodate the interests of women to participate in athletics with competitive team schedules.
  • The finding of jurisdiction and monetary liability for sexual harassment. There is now a private right of action, protections against sexual harassment by an authority figure, and the threat of private lawsuits for hefty monetary damages for some types of violations.
  • The requirement that colleges set up judicial systems to adjudicate allegations of sexual assault. Critics have argued institutions should not be dispensing justice and risk ignoring the rights of the accused or minimizing the claims of victims.
  • An attempted ban against gender identity discrimination. The Department of Education issued guidance interpreting Title IX’s sex-based provisions to cover gender identity. The Trump administration is now reportedly considering a new rule defining sex as either male or female, determined at birth and unchangeable.

“Title IX’s transformation by courts and bureaucrats is well-intentioned but not the best way to protect the civil rights of men and women in education,” Kaufer Busch says. “Equality is best determined by the re-assertion of Congress. The lawmaking branch is not without its problems but is the elective institution created to represent our interests as citizens.”

Kaufer Busch teaches courses in American political thought, political history and social thought. She recently published an edited volume exploring contemporary American life titled Democracy Reconsidered, as well as an article on the recent history of feminism and popular culture: “Ally McBeal to Desperate Housewives: a brief history of the postfeminist heroine.” She earned her PhD in American politics and political theory from Michigan State University.

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