Deep Dive Episode 207 – Litigation Update: Investigating Title VI and Title IX Complaints

Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.

In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry.

Over the last three years, Professor Perry has identified more than 1,200 Title IX and Title VI alleged violations and has filed complaints with the Department of Education’s Office for Civil Rights (OCR) against nearly 400 colleges and universities which have resulted in nearly 200 federal investigations and more than 100 resolutions, mostly in his favor.

However, after years of this work, Professor Perry announced recently that he has noticed what he describes as a “significant departure from past practices” in what OCR now requires of Title VI and Title IX complaints. Professor Perry joined Devon Westhill to provide an update on his civil rights advocacy and what he views as “troubling signs” at the Biden-Cardona-Lhamon OCR for a discrimination-free educational experience for all.

Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music] 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s webinar. This afternoon, January 20, we discuss a “Litigation Update: Investigating Title VI and Title IX Complaints.” My name is Evelyn Hildebrand, and I’m Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      I’ll introduce our moderator, Mr. Devon Westhill, very briefly, and he will introduce our speaker for this afternoon. Devon is the president and general counsel at the Center for Equal Opportunity, and he previously worked as a top civil rights official at the United States Department of Agriculture under President Trump. Devon is a member of The Federalist Society’s Civil Rights Practice Group Executive Committee, and we’re delighted to welcome him this afternoon as our moderator.

 

      After our speaker gives opening remarks, we will turn to audience for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen. We will handle questions as we can towards the end of the program this afternoon. Again, that’s the Q&A tab at the bottom of your screen.

 

      With that, thank you for being with us today. Devon, the floor is yours.

     

Devon Westhill:  Thank you so much, Evelyn. And thank you to the audience for being here. I think we’re going to have a really interesting hour here if we go that long. I think we will. I hope we will. And thank you to The Federalist Society for hosting another really fantastic program and inviting me to moderate here.

 

      Today is the anniversary of the inauguration of the Biden-Harris administration, and I think it’s a good time to take stock of some of what the Biden-Harris administration has been doing as it pertains to civil rights law. To some extent, this anniversary, which was marked by the president’s rare press conference yesterday, is a bit ignominious. We’ve seen over the course of the last year a slew of race-based initiatives from farm loan relief to FDA guidance recently on rationing, COVID treatment based on race, and we’ve seen some other areas where it appears as though civil rights laws in this country are being selectively enforced, among other issues. Today is not so much a litigation update as it is an update on civil rights advocacy of a one-man wrecking crew.

 

      A little bit of background of what we’ll talk about today: Title IX bars sex discrimination, and Title VI bars race discrimination in federally funded education programs and activities. What we’ll talk about today are single-sex, female-only, also male-only programs, scholarships, awards, fellowships, camps, clubs, etc., that appear to violate Title IX in colleges and universities, and also perhaps some of those programs and scholarships, etc., that are for only people of color that will invoke Title VI concerns.

 

      We thought, perhaps, at the beginning of the Biden administration is that this administration would be very strong on ensuring a discrimination-free educational environment for all. In fact, earlier in the Biden administration, there was an executive order on guaranteeing an educational environment free of discrimination based on sex, including sexual orientation or gender identity. And even the Secretary of the Department of Education, Secretary Cardona, indicated that one of the things that would be very important for his department was to ensure the right to equal access to educational opportunities free from sex discrimination.

 

      The guest that we have on today to discuss this topic contends that maybe things have significantly changed since the beginning of the Biden administration when these statements are made, when this executive order was signed, and perhaps it’s making it more difficult to file complaints. And we’ll hear more about that here in just a second.

 

      Our speaker today, Mark Perry, I think, Professor Perry, is the person at the Department of Education who has filed more complaints in this regard that anyone else in the history of the Department of Education. He’ll correct me if I’m wrong about that. He’s also, perhaps, better and more affectionately known to college administrators who allow these civil rights violations on their campuses as a giant thorn in their sides.

 

      Professor Perry is concurrently a senior fellow at the American Enterprise Institute and a professor emeritus of economics at the University of Michigan. He’s very well known as the creator and editor of the popular economics blog Carpe Diem. At AEI, the American Enterprise Institute, Professor Perry writes about economic and financial issues for American.com and the AEIdeas blog.

 

      Professor Perry taught economics for a long period of time, ending at the University of Michigan but started his career in the early ‘90s at George Mason University. And I’m calling in or phoning — webinaring in from Jacksonville. At one time, he was a professor there at Jacksonville University. Go, Dolphins! Now, he is calling in from Ponte Vedra. We encourage more people to come down to Florida for leisure and business. Professor Perry has an MBA in finance from the University of Minnesota and a master’s degree and a PhD in economics from George Mason University.

 

      At the tail end of his remarks, we will, as usual, have a question and answer period. Please be thinking about any questions you have for Professor Perry, maybe not typical of Federalist Society programs. You don’t necessarily have to have a question mark at the end of your remarks in the Q&A segment.

 

      And we also just want to hear some ideas or approaches one might consider to address these issues on today’s webinar rather than with the one-off complaints that Professor Perry’s very well known for, perhaps lawsuits, what can we do to address this issue in Congress or in the state legislatures, any other tips that you might have or thoughts, we certainly want to hear those. So don’t necessarily have to be questions, but we certainly do welcome questions.

 

      With that, I’m going to stop talking and turn the mike over to Professor Perry to hear what he has to say. Thank you very much.

 

Prof. Mark Perry:  Thanks, Devon. I’ll talk for hopefully for about 30 minutes and then save the rest of the time for Q&A and comments.

 

      I thought I would start by going through the background of how I got started on this one-man mission or one-man crusade to challenge the systemic sexism and racism in higher education and the double standard or selective standard for enforcing Title IX. And it really started back in 2016 when I became aware that Michigan State University was operating a women-only lounge in the Michigan State University student union.

 

      And I had been in Flint, Michigan, for about 20 years at that time, teaching at the University of Michigan in Flint. And it was about 50 miles away from Michigan State, and I went over. I really couldn’t believe that a university was still engaged in what I had described as gender apartheid where they had this sex-segregated campus space. And I visited the Michigan State union, and it’s in the center of campus, this large building, and when you walk in the main entrance, the entire wing of the first floor was set aside as a sex-segregated, women-only lounge.

 

      There was a plaque on the wall that said it had been there since 1925, so almost 100 years. And it survived without ever being challenged, I guess, until I brought a civil rights complaint against Michigan State. And I guess the history was, there originally was a men-only lounge up until the 1960’s, and that got converted into some other type of space.

 

      I found this objectionable for many reasons. It motivated this one-man mission that I’ve been on now for almost 6 years. And first, I felt for sure that that just had to be illegal, and it turns out it was a federal violation of Title IX. But at the time, I didn’t know how to file a Title IX complaint with the Office for Civil Rights. I knew that it also had to be a violation of state civil rights laws, which it was.

 

      And then, actually, in Michigan, it was also a violation of the state constitution, which was amended in 2006 by a voter referendum that prohibits preferential treatment and discrimination on the basis of sex at public universities in Michigan. And then, of course, Michigan State University, like all universities, has this very strong statement of nondiscrimination that they prohibit and will not allow any discrimination on the basis of race, sex, gender identity, and so on.

 

      Then, I thought it was also — I found it objectionable because I just thought it was morally and ethically unacceptable, aside from the legal issues. But it was just unacceptable for a university to show such blatant favoritism and allow such strong preferences on the basis of sex in a public space in a public building.

 

      And then also, it was in direct contradiction to the holy trinity of today’s higher education’s leftist wokeism of diversity, inclusion, and equity. I like that order because then it’s DIE for short. So the women-only lounge was exactly the opposite. Instead of promoting diversity, it was promoting uniformity. It wasn’t inclusive. It was practicing exclusion, and it wasn’t promoting equity. It was promoting inequity.

 

      And universities, as you know, today invest heavily in DIE. I’m not sure exactly about MSU, but I’ve documented the University of Michigan and Ohio State University both have more than 125 “diversicrats,” I call them, and those are staff members with the words either diversity, inclusion, or equity in their job title, including dozens of Title IX officers and staff members. And so the Title IX staff at Michigan State is supposed to ensure that Title IX and Title VI are being actively enforced as the university certifies to the Department of Education as a condition of receiving federal or, really, taxpayer funds, and yet, that doesn’t happen.

 

      Over the last five years or so, I’ve uncovered, actually, more than 1,200 Title IX and Title VI violations at 400 colleges and universities, starting with Michigan State, which I think demonstrates that most universities are really not taking their Title IX and Title VI obligations seriously. And then I came to realize that the Michigan State women-only lounge was a physically symbolic, visible representation of what I think is systemic sexism throughout all of higher education, but usually less visible and less obvious and harder to detect in a segregated physical space on a college campus.

 

      In fact, I would say give me 10 to 15 minutes on almost any college or university’s website, and I can almost uncover at least one program that violated Title IX or Title VI. And so that’s what motivated me was to expose this systemic sexism and double standard in higher education for enforcing federal civil rights selectively, enabled often by an OCR that is frequently willing to allow universities to violate Title IX or Title VI, or fail to enforce Title IX and Title VI, or support devious ways to allow universities to continue to discriminate on the basis of race and sex. I’ll talk about that in a minute.

 

      So it’s the double standard in higher education that Title IX and Title VI are only enforced selectively for the preferred groups, which today are women and BIPOCs, or black and indigenous persons of color, while those same civil rights laws are not enforced for the unpreferred groups, which are men, whites, and Asians.

 

      Another reason I found the MSU women-only lounge to be objectionable, along with the thousands of other Title IX violations that allow female favoritism, is that I think that they’re totally unnecessary today. And if I can switch over here, and share the screen here, and go to this PowerPoint slide here, this is showing the historical pattern of fall enrollment in colleges and universities in the U.S. back to 1960.

 

      So you can see here that when Title IX was passed in 1972, 57 percent of college students were male, and 43 percent were female. And then by 1979, 7 years after Title IX was passed and the pattern was in place—I think it would have happened even without Title IX—but by 1979, women outnumbered men for being enrolled in U.S. colleges and universities. And by 2003, the pattern was completely reversed, so whereas there used to be 57 percent males in 1972, now by 2003, there were — 57 percent of college students enrolled were female.

 

      And then, this was reflected in the—go to the next slide, okay—and then that was reflected in the imbalance in college degrees. And this is showing the share of all college degrees, associate, bachelor’s, master’s, and doctorate degrees, that when Title IX was passed in 1972, 59 percent of college graduates were male, and only 41 percent female. And by 1982, women outnumbered men for earning college degrees. By 2007, the pattern completely reversed, and now 59 percent of college degrees were going to women, and only 41 percent to men. And that then kind of stabilized, and that’s kind of where we’re at today.

 

      And then, this is showing the last year’s class of 2021, the huge gender imbalance in favor of women for associate degrees, bachelor’s degrees, master’s and doctorate degrees. And then for all degrees, again, it’s about 59 percent female, 41 percent male. And that means that last year, for every hundred males who graduated from a U.S. university with a degree, there were 143 females. And the imbalance was even greater for master’s degrees, 154 women for every 100 men, and 157 women for associate degrees for every 100 men.

 

      And then, in terms of the cumulative effect of this gender imbalance, this is showing the cumulative college degree gap in favor of women. And so since women started earning a majority of degrees in the early ’80s, women now, over the last almost 40 years, have earned 15 million more college degrees than men at all levels, and almost 7 million more bachelor’s degrees than men.

 

      I think if the goal of Title IX was gender parity, gender parity in sports and gender parity in educational programs and outcomes, that was really reached 40 years ago in the early ’80s, and so that, really, men have been an underrepresented minority for the last 40 years. But it seems like parity was never enough because that was achieved 40 years ago. And so now, it’s really more about privilege and power and preferences and payback than parity. And so I think that the widespread systemic sexism that’s reflected in Title IX violations is based on this outdated and false narrative that might describe the 1950s but certainly not today’s reality.

 

      And that false narrative is that women are still marginalized or victimized or oppressed, and they face challenges, obstacles, and discrimination in higher education that justifies favoritism, special preferences, and a hugely disproportionate share of campus resources that aren’t available for men in the form of women’s lounges, at least until recently, but then scholarships, fellowships, awards, mentoring, tutoring, special orientations, industry meetings, summer programs, summer camps, coding clubs, leadership programs, entrepreneurship programs, etc., that operate exclusively for women or primarily for women while illegally excluding and discriminating against boys and men in violation of Title IX.

 

      So that’s the background of my objections to MSU’s gender apartheid and the female favoritism and illegal discrimination that motivated my first civil rights complaint. And at the time, I didn’t know how to file with OCR, so I filed a sex discrimination complaint with the Michigan Department of Civil Rights, and then had several interviews with their attorneys. And they were trying to determine whether or not I needed legal standing to proceed, and whether I’d have to actually go to the lounge and be asked to leave.

 

      But in the process of during the evaluation, I leaked the story to some media contacts, and it snowballed and got local coverage in Michigan and national coverage, including a story in The Washington Post. Then, in the summer of 2016, Michigan State quietly closed down the lounge for remodeling, which I think was really for political purposes because they wouldn’t have been able to just take the sign off the wall in the fall and then say, “Hey, the space is still there, but it’s now open to all students.” So they had to reconfigure it, and they remodeled it. I think they added a men’s bathroom or something. And then they reopened it in the fall to protests and sit-ins and demonstrations and a petition from the women on campus who were very upset about losing their female-only space.

 

      But I think it illustrates an example of an insight from Thomas Sowell that said, “When people get used to preferential treatment, then equal treatment to them seems like discrimination.” So it seems like the women felt now they were being discriminated against, but they really were just being treated equally with their male counterparts.

 

      But by that time, it was too late. Michigan State couldn’t justify this ongoing Title IX violation any longer. It had other Title IX issues pending, including the Larry Nassar sex abuse scandal that resulted in Michigan State paying a record $4.5 million fine just a few years later. And even though Michigan State claimed that they were already considering converting the women’s lounge, I’m sure that the national attention about at least my pending civil rights claim helped motivate them to make the change as soon as possible.

 

      Having a major, big-time university correct a longstanding Title IX violation, at least partly due to my efforts, motivated me to continue challenging violations at other schools. And so then my Title IX antenna was up, and I started for looking for more violations.

 

      And I didn’t have to wait very long because then in early 2017, I got the annual email from my provost that I’d been receiving every year for 20 years about the 11 faculty awards at U of M-Flint that include a cash stipend plus some teaching time release, so it’s a valuable award because you get money plus less work. And of the 11 faculty awards, I was only eligible to for 6 because 3 were for female faculty only, and 2 were for minority faculty only.

 

      So now I did have legal standing and filed another complaint, then, with the Michigan Department of Civil Rights, which informed the University of Michigan they were under investigation. And then I was contacted by the Title IX director in Ann Arbor and asked if I would drop the complaint if they changed the awards, and I agreed. And so now all five awards were then open to all faculty. And so it was another civil rights victory.

 

      And then shortly after that, in the mail, I got an email from I guess the provost again or somebody, one of the administrators that the University of Michigan in Flint was introducing this new summer STEM camp called GEMS, Girls in Engineering, Math, and Science, but it was for girls only in 7th, 8th, and 9th grade. And they were distributing the fliers and asking for recommendations for applications. And so that was clearly illegal, and I complained to the Title IX director, and the program was quickly changed from girl only into a new program that’s open now to all genders.

 

      But when I thought about how that happened and what the process would have been for a new program, that it would have been originally proposed by some of the science faculty who would have had to get the approval of their departments and their department chairs for the program and the budget. Then it would have gone to the dean’s office, and the dean, and the associate dean, and the assistant dean, and the assistant dean to the associate dean, and all the deanlets would have had to see the proposal and sign off on it and approve it.

 

      And then it would have gone from the dean’s office to the provost office, and the provost and the associate provost and the assistant provost and assistant provost to the associate provost, all at the provost level, they would have had to sign off on it. Then it would have gone to the chancellor, and then it got announced to the faculty. But I was just astounded that so many university administrators, faculty, deans, provosts, chancellors, had seen that proposal and not one of them, I guess, had even questioned whether or not that was illegal. And it got all the way to the point that it was then being marketed and promoted as a single-sex program completely in violation of Title IX.

 

      So that illustrated to me the unawareness of Title IX in higher education, or the unconcern about violating Title IX when the discrimination is against non-females. So college administrators are either unaware of federal civil rights laws, or they know they’re violating Title IX, but they think they’re above the law. And so I think it’s some combination of both an unawareness and a lack of concern about violating Title IX, especially because universities have violated Title IX with impunity for so many decades because they’ve never been legally challenged before.

 

      I just filed a Title IX complaint versus the University of Southern Florida for a one and only award program that has been around since 1988 and has never been challenged, I guess. And even when challenged, they face generally minimal consequences. There’s no fines, penalties, apologies, admission of guilt, payments to victims. So I think there’s a mentality in higher education often that we’ll just violate Title IX for as long as we can to further our goals of whatever it is, social justice, and then we’ll make corrections if and when we get caught.

 

      After that, another successful challenge at U of M-Flint, I next targeted U of M-Ann Arbor where I found about 20 single-sex, female-only programs and 30 female-only scholarships. And I filed an internal complaint with the Title IX office that was rejected without any explanation and without notifying me of any right to appeal, which I think illustrates the stubbornness of many universities to correct their Title IX violations, and so then they stubbornly allow those violations and allow them to continue.

 

      But by that time, with some of the media attention from my challenge at Michigan State, I made a number of contacts, including some attorneys. And then I learned how to file Title IX complaints with OCR, which is actually a pretty easy process. You just send an email to the district office where the university is located for the 12 regions and say, “University X receives federal funding. They’re required to enforce Title IX and Title VI. They’re not. Here’s the programs that are apparently in violation. Please investigate the university.”

 

      So then, since I filed my first Title IX complaint with the OCR versus the University of Michigan, that was in June of 2018, it was opened for investigation in January of 2019, so that’s been three years now, and it’s still open. And since then, I’ve filed a total now as of this week of 402 Title IX or Title VI complaints for more than 1,200 violations. And based on those 400 complaints, about half of those have been opened so far by OCR for investigation, and then more than 100 of those investigations now have been resolved, mostly in my favor.

 

      Here’s what I’ve learned over the last three or four years about OCR and Title IX complaints is that they, like a federal bureaucracy, OCR, as you would expect, generally operates with snail-like efficiency, both in terms of evaluating complaints, which sometimes can take more than a year, and then in terms of investigations, which can take more than a year, or three years now in the case of University of Michigan.

 

      And as you know, Title IX is a very clear law. It’s only 37 words. And the violations that I’ve reported are very clear violations, so it doesn’t seem like it should really take that long. But I think often, the length of the resolution of an investigation has to do with either the willingness or stubbornness of the university to correct their violations once they’ve been exposed. And I think maybe many of the universities, maybe if they’re a little more honest or ethical, or they just want to end a federal civil rights investigation as soon as possible, they’ll move pretty quickly to correct the violations, frequently according to OCR’s — what they call their rapid resolution process.

 

      If a university can make corrections during the beginning of an investigation once they’ve been notified, then they can usually get the case resolved by having it technically dismissed by OCR where OCR will say that they’ve determined that the actions that the university has taken are sufficient to resolve the complaint allegations and require no monitoring. Consistent with the case processing manual, OCR will dismiss a complaint if it obtains credible information during an investigation indicating that the complaint is currently resolved. So that’s frequently what happens.

 

      If the complaint is not resolved with those voluntary corrections early in the investigation, then the OCR will take its time and will end its investigation, then, with a voluntary resolution agreement, which I think most universities know that they should try to avoid those because then the OCR kind of dictates to the university how the violation will be resolved, or they’ll have a couple different options to either discontinue the program or convert it from female only into coeducational. And then there’s usually reporting requirements for a number of years, and then sometimes they have to have some remedial Title IX training for their staff who are involved in an application process.

 

      I’ve had about 10 voluntary resolution agreements, which are the strongest type of correction and most desirable from my end. And they’re usually signed by the president of the university, signifying how important it is when there’s a violation and then a correction. But most resolutions have been in the form of what OCR would call dismissals when the university will either terminate its program, or it opens the program to all genders, sometimes somewhat deceptively.

 

      Here’s another part of my experience. For example, Harvard has a one week women’s leadership initiative program that costs $13,000. And they clearly market it to women, and so I filed a Title IX complaint. And they made this one change that the OCR said was okay, and it’s kind of a legal fig leaf, I guess, or this disclaimer where now it says while the program is focused on women and those who identify as women executives, the program is open to all executives who meet the admissions criteria, including all men, I guess, who want to study women’s leadership.

 

      Then Stanford University has a similar program. All the top business schools have these very expensive women’s leadership programs. Stanford has their executive program in women’s leadership, and they clearly say that the program is designed for women 8 to 12 years into their careers.

 

      But then buried in small print at the bottom of the program website, and this was where the San Francisco OCR considered this to be an acceptable correction to their Title IX violation, it now says in small print, “Consistent with its nondiscrimination policy, Stanford’s programs are open to participants, regardless of race, color, sex, gender identity,” and so on. So it seems like they’re allowing those kind of legal fig leaves as a kind of correction, and the program, we know, is going to continue to operate for women only.

 

      Then there’s also been this new, coordinated effort just in the last year that, again, is something tied to the change in administration, and it seems like there has been some national effort among the 12 regional OCR offices where they’ve shared some memo or come up with a way that they’re going to try to combat the complaints that I’ve been filing. And there’s some other individuals who are filing complaints now in an organization. So they’re dealing with hundreds of complaints now.

 

      After the complaint gets filed, and maybe even after it gets opened for investigation, then they’ll send me an email and say something like what they’re actually asking for are names of actual victims, which they never used to do because, again, there’s no legal standing requirement for an OCR complaint. But they’ll say, “Do you have any evidence of any individual who, because of their sex, has been excluded from this program? If so, identify that person by name, and the date of said exclusion, and provide their contact information.” So that’s been very, very common.

 

      I’ve tried a number of different ways to try to respond to that in the last year. Most of them seem to be unsuccessful attempts to respond. And so I tried to make some valid legal arguments citing case law, like Teamsters v. United States, where the United States Supreme Court said that discrimination isn’t limited to the direct language that people will see, like women only, but it can include actual practices such as how an educational opportunity is publicized and promoted, and the program’s recruitment techniques, which are clearly targeted to a single sex.

 

      I’ve tried using reason and logic, and the reasonable person standard, suggesting that reasonable males are not going to waste their time in an exercise in futility, unless they’re looking for legal standing. But they’re not going to apply for a program for which they’re clearly not qualified for. Many times, there are time consuming application materials that have to be submitted. You have to include some kind of statement of interest. You have to get letters of recommendation and provide references. If it’s a research grant, you have to come up with a detailed budget.

 

      I’ve also suggested that if OCR, if they’re interested in determining how many men or non-females have applied and been excluded from a female-only program, or accepted, that the burden should be on the university to provide those data, not the complainant who doesn’t have access to university records.

 

      I’ve used the disparate treatment argument that even if men can join a women’s leadership program to study women’s leadership, it’s illegal disparate treatment under Title IX because men don’t have a men’s leadership program that might allow women to join to study men’s leadership.

 

      Nothing seems to persuade the OCR attorneys, and they now say in their dismissal letters, even when the university agrees to make some changes, they cite in the dismissal letter that the complainant was unable to provide any names of actual victims, and their contact information, and dates the discrimination might have happened.

     

      And recently with the Denver OCR, which is clearly, of the 12 regional offices, the worst or the most militant in terms of not enforcing Title IX, I said to them that although I am not aware of non-female students who applied and were excluded from this female-only program, I am aware of individuals who are discouraged from applying to these programs because of their obvious ineligibility on the basis of sex and gender identity because I’m often contacted by students or parents or alumni or faculty who are aware of these discriminatory programs.

 

      But now, it’s like they don’t want just the names of actual victims, they want the names of potential victims because the Denver OCR’s response was, “If you are aware of non-females who are discouraged from applying to these female-only programs because of their sex, please provide their names, which program, the date that this occurred, and any details you may be aware of regarding the incident no later than within a few days.” And of course, there was never any kind of incident that could have a date associated with it, so again, it was just — it’s like they won’t accept any response other than, “I do not know any names of actual victims,” as a way then to dismiss the case or give the university some favoritism in how the case gets resolved.

 

      I guess the bottom line is it seems like the OCR has always had its thumb on the scale in favor of enabling universities to violate Title IX and allow systemic sexism and female favoritism as evidenced by the many illegal female-only programs that have existed for 20 or 30 years.

 

      But I think that their thumbs on the scale have gotten a lot bigger in the last year based on what I’ve been seeing. And that’s, as Devon said, despite very strong statements in 2021 from both Education Secretary Cardona and Joe Biden in an executive order where they both said Title IX protects the civil rights of all students, and all students will be guaranteed an educational environment free from discrimination on the basis of sex. Those statements seem to be contradicted by recent actions of the OCR over the last year.

 

      So I’ll end there and then ask if anybody has any tips on any violations that you’re aware of that would allow me to file additional complaints, or I’d be happy to help anybody who wants to file a complaint on your own. And then also, as Devon said at the beginning, if anybody has any advice for either legal or non-legal strategies to expose this double standard and challenge Title IX violations and bring greater public accountability. So I’ll end there, Devon, and let you take over.

 

Devon Westhill:  Thank you very much, Mark, for that presentation. That’s exactly what we wanted to hear, particularly the tail end of that presentation regarding new — potentially, what appears to be a new standard at the OCR that perhaps is being fueled by a memo or a new policy in the Biden administration.

 

      I’ll take a second here. We’ve got a few questions and some comments as well I’ll throw your way, Mark, but I’ll start with a question that I had. And I’ll also remind the audience if you have any questions or comments, tips, anything like that that you’d like to share with the group or with Mark and me, just put it in the Q&A feature at the bottom of your screen.

 

      Mark, have you seen any memo — have you put your hands on any memo or any policy — has there been any FOIA efforts to try to uncover something like that to coordinate this new standard of review for complaints?

 

Prof. Mark Perry:  No. I haven’t followed that strategy yet. And maybe I could think of that, but it almost was as if some memo went out to the regional offices and shared by the head office, or whatever, because it just seemed like, starting a year ago, almost all of these complaints or investigations would be followed up by this request for names of actual victims in almost the exact same language.

 

      So it did seem to be some kind of coordinated effort, but I couldn’t really tell for sure if it was like some official policy, or just something informal where they just wanted to counteract all of my complaints, or just create extra work for me, or have on extra reason to give favorable treatment to a university. So I guess that would be something to consider. I don’t know how I could — exactly how I would do that, but I guess just file a FIOA request and see if I could uncover some systematic effort to do this.

 

Devon Westhill:  Well, it strikes me as though there might be some people on the call here who would be interested in assisting in efforts to uncover whether or not, really, what amounts to a barrier to filing complaints actually exists.

 

      Let me turn to — I have more questions, more thoughts, but let me turn to some of the thoughts that have been shared in our Q&A section here. Some may or may not relate to your comments and your presentation, Mark, so if you don’t have a response to it, that’s fine. We’ll chew on it and maybe get back to the folks who are making the comments and asking the questions. And at the tail end of this program, we will be sharing, I think, Mark, your contact information so folks can continue to have this conversation with you.

 

      There’s a question about a half-billion dollar settlement at the University of Michigan just recently. The University of Michigan agreed to settle some sexual harassment claims from athletes, I think, by a sports doctor employed at the university for several decades. The University of Michigan’s president and provost, I guess, were both released because of sexual improprieties as well. Does that suggest any sort of systemic sexism at the institution? Does this relate to your comments?

 

Prof. Mark Perry:  In terms of the University of Michigan? Yeah, well, there’s the whole separate issue for Title IX law is an enforcement for the campus sexual assault and sexual harassment. And I haven’t really worked in that area at all. I’ve stayed in the area of single-sex or sex-specific programs, sex-specific scholarships. So in terms of the University of Michigan, I don’t know.

 

      I guess that goes back to the 1960s and 1970s, I think, that lawsuit that just got settled. And then these more recent cases where the provost was fired a couple years ago and the president was just fired, I think, a week ago. So again, maybe it’s just they talk about — even Schlissel, the president who just got fired, he was the one who talked about inappropriate relationships and zero tolerance, and then he was actually doing it himself at the time.

 

      So I guess it does show that Title IX violations can be taken very seriously, especially with the $450 million settlement, which I think is what MSU paid. So the consequences can be huge. I would just like to maybe see some of those consequences in the area that I’ve been working in, which are the sex-specific programs, and sex-specific scholarships, and so on.

 

Devon Westhill:  Thanks, Mark. Just a couple of quick answers to questions I saw here. I do believe that the slides that you used, Mark, we can make those available to attendees. There are some folks asking if they can review those slides. And also, yes, this program is being recorded, and it will be posted on The Federalist Society’s website at some later date for other folks who haven’t been able to — or who couldn’t join to watch.

 

      There’s a question — I should have said from the outset that Mark is not a lawyer, and you don’t have to be a lawyer to file these complaints. And it’s a very good thing that that’s the case, or else Mark’s one-man wrecking crew here would be in trouble. There are a few law questions here. There’s a question — how often do investigations actually result in litigation through a judgement? Are you aware?

 

Prof. Mark Perry:  No, because — and I would love to pursue that approach, but none of these have been litigation. None of these have been lawsuits. And I’m sure everybody knows that that would require somebody with legal standing, which is always kind of difficult, although if that’s the way to get a more effective resolution of the issue, then I’d be happy to work on that.

 

      It would just be then a matter of having an individual, a male, who applied for a female-only scholarship or applied to a women-only summer program and got rejected. I think the problem with that could be that the universities are wise enough to know that if they reject that male applicant, then that could put them in trouble, so they might even occasionally accept a male or boy into an all-girl program.

 

      But yes, I would be happy to talk with anybody if I can help out on any kind of litigation that maybe would involve a lawsuit or maybe we would need individuals with legal standing. I’d be happy to pursue that option.

 

Devon Westhill:  Yeah. Let me just reiterate that point because we’ve had quite a few questions regarding what sort of court actions have been brought in your experience here. I imagine, again, you’re not a lawyer, don’t necessarily have one on retainer at any given time to help you with these matters, but you certainly would welcome having lawyers who were on this call or others who might have missed this to assist in your efforts through the courts of law.

 

Prof. Mark Perry:  Yeah. And one example that I didn’t mention, but it was at the end of my notes here, was that the Judicial Watch and the Legal Insurrection Foundation just recently within the last few days, earlier this week, I think, successfully — or the decision was just made, and they successfully challenged a public school scholarship program in Ashville, North Carolina, where they had received some settlement from something else and they were going to be using it for some scholarship program, but it was only going to be available for black students.

 

      And so that was a legal challenge where I think they may have had some plaintiffs. And then it was ruled in their favor, and so now the program is no longer restricted to black students. But then again, I think it’s usually — I think they did have plaintiffs. So that was an example. I was encouraged to see that knowing that there is a legal avenue outside of just what I’m doing one complaint at a time. That might be more effective because then it gets greater media attention, and then there’s a legal precedent, I guess, and so on.

 

Devon Westhill:  And that goes to a question that I saw here regarding race-based student centers. Are there complaints regarding whether they violate civil rights? You have been involved in filing Title VI complaints as it pertains to racially discriminatory student centers, and scholarships, and so on and so forth, in recent years, correct?

 

Prof. Mark Perry:  Yes, I have. In fact, in the last year, again, like you were saying, kind of since George Floyd when a lot of these programs have been introduced, I have been filing more Title VI complaints. I just filed two complaints recently versus the University of Minnesota because they have two racially segregated student housing options on campus. There was a number of George Floyd memorial scholarships that I challenged. Harvard had a theater performance on campus that was only for black attendees that I challenged.

 

      As I talked to you earlier before the program started, Devon, I have an investigation open at American University which last year introduced a black-only affinity section of a required course that all freshmen or first year students are required to take. And so they are introducing on their schedule for spring that’s just starting now, 5 or 6 out of 100 sections were set aside for only black students. And the OCR opened an investigation about a week ago, and a couple days later, those black affinity sections were removed from the college’s website.

 

      So yeah, I have been targeting more men of color, women of color programs, black-only scholarships, BIPOC-only scholarships or summer programs. And so yeah, a lot of my work lately has been in the area of filing Title VI complaints.

 

Devon Westhill:  Thank you, Mark. We have about 10 minutes left, still quite a few questions and comments. There’s a longer one. I’d like to just get through this and see if you have some response, Mark, particularly given your long tenure in academia.

 

      Can you comment on the situation in the humanities where many professional positions are announced with the line that, quote, “The purpose of this position is to enhance racial diversity in the department, in particular, black presence in the department,” end quote. In the same vein, what do you make of the required DEI statements that one is required now to write in the humanities for any professional application where it is specifically stated that you need to describe your advocacy for DEI and how you’re working to create equity? Any thoughts on that in response, Mark?

 

Prof. Mark Perry:  Oh, yeah, I think it’s a terrible development. And I think that’s the consequence of universities like Ohio State and University of Michigan having 125 diversicrats who just sit around, I guess, all day and figure out ways that they can stir up trouble or advance their agendas. But I think that it started in California and spread throughout the rest of the country, including University of Michigan, where almost every job now requires a diversity statement. And I think there’s been some study that in one job opening for University of California, most of the applications were rejected for not having a strong enough diversity statement.

 

      And I think that what’s happening now is it’s not just to start your career as an assistant professor and get your first year out of grad school. It’s not clear if you’ve been studying chemistry for five or six years or mathematics, and then you’re supposed to tell the university, really — well, I call it a uniformity statement because you’re really supposed to pledge to the university that you’re on board with their narrative about diversity. And then you have to say what you’re going to do in your teaching, and what you’re going to do in your research, and what you’re going to do in your service to advance the university’s goals of diversity, inclusion, and equity.

 

      So that’s where it starts is just to get the job. But now I think what’s happening is to apply for any type of fellowship, or any type of research grant, or to then get promoted to associate professor with tenure, or get promoted to full professor, or just even in your annual activity report, you’re going to be required now to produce some kind of diversity statement and really just some kind of loyalty oath where you’re pledging allegiance to their holy trinity of diversity, inclusion, and equity. And I think it’s just a terrible trend. It’s moving away from merit-based hiring.

 

      And I don’t know, you might have seen Jordan Peterson just resigned yesterday, I think, from the University of Toronto, as a tenured full professor, and wrote a very strong statement, and talked about how this diversity, inclusion, and equity was poisoning academia, and that he didn’t think that as a — supervising doctoral students in psychology, he just was under the assumption now, or the reality, that any of his white male students that would train under him and study under him would be unable to get jobs in academia or even in industry as a white male.

 

      So I think it’s just a really dangerous precedent that started and now is spreading throughout all of higher education at all different levels, and so it’ll follow a professor around his or her entire career, having to continually produce uniformity statements that you’re on board with their commitment to diversity, inclusion, and equity. Very dangerous.

 

Devon Westhill:  Thanks a lot for that response, Mark. Now, let me just announce that there are quite a few comments being made that are helpful tips, I think, for you to chew on, Mark. What I think we’re going to do with all of those comments is just collect them for you and share them with you after this program so that you can follow up at your leisure with some of our attendees based on some of the comments that are being made, a number of them very good comments.

 

      There’s a question here, I think, pretty quickly dispensed with, but I will put it out there. Is there any way these kinds of civil rights claims can be used against private colleges? Private colleges also take federal funds, so at the end of the day, you don’t discriminate for the most part in filing your complaints against public or private colleges. Is that right, Mark?

 

Prof. Mark Perry:  Yeah, that’s right. The way the Department of Education operates is that any university that accepts what they call federal financial assistance is required then to enforce Title IX and Title VI. And federal financial assistance includes Pell Grants that universities, of course, use to provide financial aid to students, federally insured student loans, which all universities provide, public and private, and then, of course, direct research grants.

 

      I think the only university that’s not under Title IX and Title VI in the United States is Hillsdale College in Michigan, which doesn’t accept any federal funding and doesn’t allow any federally insured student loans, so then they are out of their Title IX obligations, although they still have to follow state civil rights laws and so on.

 

      So yeah, every university is obligated to enforce Title IX and Title VI. I think the one exception is, and they, I think, wrote this into the original laws, that women-only colleges are not — they’re exempt from Title IX, that you couldn’t challenge the fact that they’re only allowing women. And I think that also applies to charter schools, that you can have single-sex charter schools and not violate Title IX.

 

Devon Westhill:  Okay, terrific. We have about five minutes left, Mark. What I want to do right now so that I can leave a little bit of time here at the tail end so you can give a wrap-up comment is to provide your contact information. For individuals who are interested in contacting Mark about any of the things he said today or any other comments that you might have, his email address is [email protected]. Mark, you’re also on Twitter @Mark­_J_Perry. You can find him there. Any other contact information you’d like to share, Mark?

 

Prof. Mark Perry:  No, but I would just say I saw in the comments or the chat that a few people were interested in the slides. I actually have a longer set of slides that I can provide to people. I just narrowed it down to four in the interest of time and not going beyond 30 minutes.

 

      And I’ve actually done a lot of work in this area of gender differences and educational outcomes, especially in U.S. higher education. And so I’ve done a lot of thinking and analysis on gender differences and outcomes for colleges. I’ve analyzed — for example, I have the female share of college degrees year to year by the major degree programs and so on.

 

      Somebody wanted the email, I guess, one more time.

 

Devon Westhill:  Yes. Mark’s email address is [email protected].

 

      I’m going to take an opportunity to ask two final questions, and then, Mark, I’m just going to leave it to you to wrap us up with anything that is still on your mind. Two things — one, you mentioned preferred groups, not preferred groups. You make a decent case here that if there should be any sort of preferred groups—and you’re not saying that there should be—it might be men who should be preferred because they’re underrepresented. They have been for decades, based on data that you shared with us. But that’s not the case. Have you in your experience ever seen any race-specific or gender-specific programs, activities, etc., federally funded school for white male specific programs or activities?

 

      And then, secondly, have you seen or experienced any complications with transgender students in your experience? We’re talking about this issue as if it’s, today, a binary one. I think it’s a little complicated by some transgender issues that we’re dealing with today. Have you run into any of that?

 

Prof. Mark Perry:  Yeah. Well, in terms of the whites-only programs, the only one that I can think of right now, and I filed a complaint against it, it’s the University of Texas-Austin came out with a program called GoKAR!, and the KAR is Kids Against Racism. And it’s a program — it’s a political indoctrination program, in my opinion, for four- and five-year-olds where the University of Texas is promoting this program now. They’re looking for four and five year old boys and girls and their caregivers—they don’t call them parents anymore, they’re called caregivers—who will participate in this program, and it’s an anti-racism program.

 

      And when they originally requested the funding, they didn’t mention that in the implementation of the program, it was going to be for white kids only and white parents. So now they’ve introduced the program. They’re seeking four- and five-year-olds and their caregivers, but it’s for whites only. And so I filed a Title VI complaint alleging race discrimination, that they’ve got this educational program, but they’re not providing it for blacks or Hispanics or Asians, only for whites. So that would be one example of now they’re just going in the reverse order and just targeting whites now for racism. So that’s one example.

 

      Then with the trans issue, it’s really kind of interesting because according to Facebook and New York City and a lot of other organizations, there’s 50 or 60 genders now. And so, actually, that, I think, supports my case because if a university is saying this is for female students only or female faculty only or female identifying, then they’re excluding not just men but all of the gender non-binary, gender nonconforming students or faculty who don’t identify as male or female.

 

      And I think the Biden administration has come out with a new guidance letter or document saying that Title IX protects not just discrimination based on sex but based on gender identity. So in a way, I think that helps me because the female-only programs then are discriminating not just against men but all of the other possible 40 or 50 gender identities that are not female identities.

 

      So I think that’s a development that can help my case that, really, it should be, if it’s a scholarship or a program, it should just be open to everybody, regardless of sex or gender or race or color, including transgender, gender non-binary, gender-fluid, gender nonconforming, and agender, pangender, and so on.

 

Devon Westhill:  Well, thank you, Mark. I see that Evelyn now has come back into the screen. I think we have reached the limit of our waxing prolix here about this topic. It’s been a lot of fun for me. I really appreciate you taking the time to discuss with us what you’ve been doing over the last several years. That’s been really, really incredible in terms of civil rights advocacy. I want to continue to follow this. I hope that our attendees in the audience will also continue to follow what you’re doing. Thank you so much, Mark.

 

Prof. Mark Perry:  Yeah, maybe we can follow up in a year or two years and do an update.

 

Devon Westhill:  That sounds great.

 

Prof. Mark Perry:  All right.

 

Evelyn Hildebrand:  That would be great. I’m sorry to draw this to a close, but thank you very much to Mark Perry, our speaker this afternoon, and to Devon Westhill, our moderator, for an excellent discussion. Thank you to our audience for participating and sending in excellent questions and comments. We welcome listener feedback by email at [email protected], so if you have any comments, please send those to that email address. And without anything further, we are adjourned. Thanks very much, everyone.

 

[Music]

Mark J. Perry

Professor of Economics, University of Michigan-Flint and

Resident Scholar, American Enterprise Institute


Devon Westhill

President and General Counsel

Center for Equal Opportunity


Race & Sex

Federalist Society’s Civil Rights Practice Group

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].