Title IX and Sex-Segregation
When we prohibit “discrimination” what do we normally mean? It is that the prohibited criteria (race, sex, religion, age) should not be considered. Two people applying for a job, one male and one female; the decision should be made without consideration of either person’s sex (assuming that sex is not a bona fide occupational qualification or BFOQ).
The BFOQ is an example of when we make a specific exception to the general rule that a prohibited criteria should not be considered. Another (unwritten) exception would be the “heightened scrutiny” applicable to certain kinds of presumptively unconstitutional discrimination by state actors under the Equal Protection Clause of the Fourteenth Amendment. So states can provide contracting preferences for certain racial groups if the preferences meet the requirements of “strict scrutiny.” These exceptions are permissive, not mandatory. A state agency can provide contracting preferences, but generally speaking, it is not required to do so.
As I pointed out yesterday, Title IX has some explicit exceptions (e.g., for father-son and mother-daughter events). These exceptions are permissive. The statute permits sex-segregated housing, but it does not require it.
One could argue that under principles of expressio unius, we should not imply any unwritten exceptions. The Supreme Court has not opined on this question, but the consensus among lower courts is that Title IX also permits sex-conscious decisions that meet some form of “heightened scrutiny.” (Curiously, this consensus derives from the Supreme Court’s opinion back in Bakke that Title VI of the Civil Rights Act of 1964, generally viewed as the model for Title IX, only prohibited race-conscious decision-making violative of the Equal Protective Clause. My understanding is that at least one Justice asked some questions about the correctness of that interpretation in the college admissions cases argued this past Halloween.)
One possible interpretation of Title IX is that schools receiving federal funds cannot limit any sports teams to one sex or another. That is certainly how we interpret Title VI, which pr
Article from Reason.com
