A Tale of Two Title IXs: Title IX Reverse Discrimination Law and Its Trans-Substantive Implications for Civil Rights

43 Pages Posted: 23 Mar 2021

See all articles by Alexandra Brodsky

Alexandra Brodsky

affiliation not provided to SSRN

Dana Bolger

affiliation not provided to SSRN

Sejal Singh

Harvard University, Law School, Students

Date Written: March 19, 2021

Abstract

In recent years, male students disciplined for sexual harassment have brought Title IX lawsuits against their schools, arguing that they experienced anti-male gender discrimination. Several circuits have allowed these students’ reverse-discrimination suits to sidestep the usual barriers erected to throw traditional civil rights suits out of court. Specifically, these courts have allowed these plaintiffs, and these plaintiffs alone, to treat alleged mistreatment of a non-sex-based class as sex discrimination; to ignore strict, judicially-imposed limits on the use of comparators to show discrimination; and to rely on evidence of alleged bias lacking any nexus to an adverse action. This Article traces an emerging trend among lower courts by which Title IX has become a more powerful tool for men accused of sexual harassment than for victims and other members of marginalized groups.

Some courts justify this apparent double standard by arguing that federal enforcement of Title IX creates an actionable climate of anti-male sex discrimination. This backward reasoning suggests that civil rights enforcement is a form of discrimination against dominant groups. As this Article argues, this reasoning is both incorrect and dangerous: If courts continue treating civil rights’ agencies work to remedy discrimination as evidence of discrimination against dominant groups, they will frustrate the enforcement and promise of all anti-discrimination statutes.

Keywords: anti-discrimination law, education law, Title IX, sexual harassment, backlash, discrimination, feminist law, federal civil rights enforcement, civil rights, sex discrimination, gender

Suggested Citation

Brodsky, Alexandra and Bolger, Dana and Singh, Sejal, A Tale of Two Title IXs: Title IX Reverse Discrimination Law and Its Trans-Substantive Implications for Civil Rights (March 19, 2021). UC Davis Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3808034

Alexandra Brodsky (Contact Author)

affiliation not provided to SSRN

Dana Bolger

affiliation not provided to SSRN

Sejal Singh

Harvard University, Law School, Students ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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