Elite Women and Title IX Transformation: A Cautionary Tale

In Unlawful Advances, sociologist Celene Reynolds offers a detailed examination of how students at Cornell, Yale, and Berkeley “repurposed” Title IX of the Education Amendments of 1972 to include sexual harassment as a form of sex discrimination. Educational institutions at all levels, she claims, have developed extensive bureaucracies to monitor and punish the sexual behavior of students, faculty, and administrators because “feminist students transformed both the ‘law in books’ and the ‘law in action.’” Reynolds’ larger project is to “clarify the more general process of modern legal transformation.” Her conclusion: “Title XI illustrates the people’s power to transform the law.” (emphasis added). In her telling, a small number of feminist students at elite institutions demonstrate the power of “the people”—a term she uses repeatedly and without irony.

As an explanation of how Title IX evolved into a controversial font of sexual harassment regulation, Reynolds’ story is unconvincing. She focuses on three college campuses in the late 1970s. While it is true that activists at those schools began to articulate the argument that sexual harassment is a form of sex discrimination subject to regulation under Title IX, these initial efforts largely failed. Not until two decades later did the Department of Education issue guidelines on the topic. And it took another two decades for enforcement to begin in earnest. The main characters in Reynolds’ account are at most bit players in the larger story.

In this sense, Unlawful Advances is akin to Tom Stoppard’s play Rosencrantz and Guildenstern Are Dead. Reynolds devotes nearly all her work to minor characters ripped from a much more complicated and compelling drama. Unfortunately, she does so without Stoppard’s cleverness, humor, and sense of the absurd. In the end, what is most instructive about this book is not her explanation of the “repurposing” of Title IX, but what it tells us about the political worldview of so many left-leaning academics and activists.

The first three chapters of the book are based on the author’s review of archival material and interviews with those who participated in sexual harassment controversies at her three schools. At Cornell, she focuses on Lin Farley, a labor organizer and antiwar activist who was brought to campus to teach courses that “examined revolutionary change through community practice.” During her brief stay there, she popularized the term “sexual harassment” and argued that it constituted a form of sex discrimination. Although she talked to students about how this could apply to their situation, most of her focus was on discrimination in the workplace—as the title of her 1978 book, Sexual Shakedown: The Sexual Harassment of Working Women, suggests.

After leaving Ithaca, Farley worked with both Eleanor Holmes Norton, the chair of the Equal Employment Opportunity Commission, and Catherine MacKinnon, author of the influential 1979 book Sexual Harassment of Working Women, to develop legal arguments under Title VII of the 1964 Civil Rights Act, which prohibits sex discrimination in the workplace. For the next decade and a half, virtually all the important legal developments on sexual harassment came under Title VII. They were then grafted onto Title IX and education, without much thought given to the major differences between the workplace and the college campus.

At Yale, several women claiming sexual harassment by faculty members filed a Title IX suit with the help of then-Yale Law Professor Catherine MacKinnon. Reynolds provides an engaging description of the evolution of that case, Alexander v. Yale. But this was far from landmark litigation; indeed, it was a dispiriting failure. All but one of the plaintiffs were dismissed. The remaining plaintiff, who alleged “quid pro quo” harassment (rather than the harder to prove “hostile environment” harassment), eventually lost, too. The courts did not begin to entertain Title IX sexual harassment cases in earnest until a decade later, and then the focus was not on the feminist college students studied by Reynolds but on elementary and secondary school students who had been subject to misconduct so serious that it could constitute statutory rape.

Reynolds’ third case study, Berkeley, has not received much attention previously. She makes a convincing case that a number of female students had been subjected to serious misconduct by at least one faculty member. (The fact that the faculty member was a Tunisian immigrant and several of the accusers were Jewish women complicated the politics of the case in Berkeley.)  Reynolds points to two accomplishments of the women she studied there: the university instituted a procedure for registering and adjudicating, and the regional office of the federal Office for Civil Rights (OCR) accepted a Title IX complaint. But the university’s effort proved to be rather feeble, and the feminist organization that had pushed the issue withdrew its OCR complaint and disbanded soon thereafter.

Throughout the 1980s, some universities struggled to devise procedures to handle sexual harassment claims fairly, but the federal government received very few Title IX complaints and said virtually nothing about the issue. For those interested in the eventual expansion of federal regulation, the key question is what happened in the mid-1990s and again in the 2010s to turn the fledgling effort Reynolds describes into an extensive and controversial effort by the Department of Education. To this complex legal and political story, Reynolds devotes little more than fifteen pages in her fourth chapter.

Her analysis of “The Continuing Evolution of Title IX” is divided into two parts: “The Evolution of Title IX at the Hands of the State” and “The Evolution of Title IX at the Hands of the People.”  The former provides a brief review of four decades of court and agency action on sexual harassment, heavy on description of the facts in several cases and light on legal and political analysis. She says little about the importance of evolving case law under Title VII, or about how OCR’s first sexual harassment guidelines were a response not to the demands of college students, but to state and local public-school systems’ fear of suits for monetary damages unleashed by a 1992 Supreme Court decision. Surprisingly, she says little about the time when activist college students did have a profound effect on public policy: the Obama administration’s bold expansion of regulatory demands on schools and its aggressive enforcement campaign. This represented a significant expansion of women’s groups’ influence not just within the Obama administration, but also among civil rights groups and the Democratic Party.

The second half of the penultimate chapter is at once unconvincing and revealing. By “the people,” she means those who have filed Title IX complaints. Her argument is that the expansion of Title IX regulation “resulted from bottom-up processes, such as grassroots activism and school-level compliance efforts.” But the graphs she provides tell a different story. While she claims the exponential growth in sexual harassment complaints began in 2006, her graphs show that from the mid-1990s until 2009, the number of complaints hovered around 50 per year. Only in 2009-2010 did the numbers begin to rise sharply, reaching nearly 300 per year by 2016. Then they began to tail off. The explanation is not hard to find: those were the years when the Obama administration rewrote the rules and initiated scores of well-publicized investigations of universities. The complaints filed by “the people” were not simply exogenous. They were, in large part, a response to the opportunities created by “the state.”

Toward the end of the book, Reynolds makes two jarring concessions. The first is that the activists she studies are not the salt of the earth—“not just any students”—but those occupying “privileged social positions.” How they were recast as “the people” at the “grassroots” remains a bit of a mystery. The second is her doubt about whether the “repurposing of Title IX” has actually “enhanced equal opportunity in education.” In fact, “A growing body of social scientific and legal scholarship shows that today’s campus sexual harassment response system often does more harm than good.” The systems schools have put in place under Title IX “are not working for victims, for the accused, or for schools.” So the story could be summarized as “activists at elite schools create an extensive regulatory regime that fails everyone”—a good headline for a City Journal article, perhaps, but not for a Princeton University Press book title.

How should we understand the obvious shortcomings of a book by a smart and conscientious author? The answer lies in the tension between two beliefs common among many activists and academics, especially those in sociology and allied fields. The first is a fundamental commitment to egalitarianism. The state and all other powerful institutions should take drastic steps to reduce inequality based on race, sex, gender, class, and disability. The second is an equally fundamental distrust of established institutions, especially government. American politics is corrupt. Even when good laws are enacted, implementation is marred by the entrenched power of interest groups and the status quo bias of government officials.

How can “real” social change take place? Only when “the people” demand it. Thus, the focus is on “social movements” rather than parties, interest groups, courts, agencies, or legislatures. The most important accomplishment of these social movements is to bring new ideas to the fore—to get all of us to think about social relations in different ways. But before long, those new ideas will be put into practice by stodgy, legalistic, corrupt political institutions, draining them of their revolutionary potential. In the meantime, all we can do is pay homage to each progressive Sisyphus who valiantly pushes her rock up the hill, only to have it roll back down for another inspiring but ultimately tragic story.

R. Shep Melnick is the Thomas P. O'Neill, Jr. Professor of American Politics at Boston College, and author of The Crucible of Desegregation: The Uncertain Search for Educational Equality (Chicago, 2023).