Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions for being illegitimate—for reflecting the agency’s improper imposition of value judgments on the statute. Three key applications of Title IX have drawn the most controversy in this regard: gender equity in intercollegiate athletics; transgender students’ rights; and sex-based harassment and assault on college campuses. In this essay, I argue that the critique is misplaced. One may agree or disagree with OCR’s applications of Title IX in these three key areas. But these applications are not illegitimate. To the contrary, they are implementation decisions made consistent with the longstanding “core” conception of discrimination—intentional disparate treatment. These decisions are inherently contestable, because even the “core” conception can be instantiated in many ways. But there are strong reasons to believe that OCR is best positioned to choose which instantiations to adopt. In Part I, I demonstrate that the controversial positions of OCR do not involve avant garde interpretations of the anti-discrimination principle. Rather, they involve the resolution of questions of implementation: From what facts is it reasonable to draw an inference of disparate treatment? In what activities do we predict male and female college students would want to participate if they did not face discrimination? Should we look at discrimination on the level of the individual student or the institution as a whole? And what is the most effective way to reduce individuals’ acts of discrimination within an educational program? In Part II, I argue that OCR is well positioned to decide these questions. These questions of implementation are precisely the sorts of questions that Congress cannot generally be expected to resolve. And they are the sorts of questions on which an agency like OCR plausibly has both an informational and a democratic advantage over the courts. My argument does not rely on any transcendent preference for administrative resolution of policy questions—though it may offer a data point in support of such a preference. Rather, it relies on two key factors: first, the inherently contestable nature of these questions of implementation; and second, the proven democratic accountability of OCR. In a companion piece, I argue that OCR has generally been accountable to the public in its interpretations of Title IX. Here, I focus on the contestable nature of the implementation decisions that are necessary to give life to the statute, and I compare the democratic responsiveness of OCR with that of Congress and the courts.
Bagenstos, Samuel R. "Legitimacy and Agency Implementation of Title IX." Harv. J. L. & Gender 43 (2020): 301-18.