Title IX and the Future of Education: Reform or Overhaul?
UVA Law Faculty Affiliations
In “A Tale of Two Statutes,” Elizabeth Kaufer Busch takes a hard look at Title IX on its fiftieth anniversary. Her conclusion? That the landmark civil rights statute has fulfilled its original goal of removing “arbitrary barriers” to women in educational programs and activities receiving federal financial assistance but now faces an uncertain future. In Busch’s account, we are in the midst of a “foundational dispute” between “constitutionalists” and “anti-constitutionalists” over Title IX’s construction and enforcement. The “constitutionalists,” whose ranks include the Foundation for Individual Rights in Education (FIRE), the New Civil Liberties Alliance (NCLA), and other leading civil liberties organizations, are strongly committed to respecting constitutional constraints and following the policy-making processes set out in the Administrative Procedure Act, with an emphasis on notice and comment rulemaking. “Anti-constitutionalists,” by contrast, are so impatient to address what they see as grievous wrongs that they end up taking legal shortcuts. The consequences of “anti-constitutionalism,” suggests Busch, may be dire. A Title IX regime vulnerable to transformation by “whoever happens to wield power at the moment” is one that poses grave risks to individual liberties and the core missions of educational organizations.