THIS IS WHAT DEMOCRACY LOOKS LIKE: TITLE IX AND THE LEGITIMACY OF THE ADMINISTRATIVE STATE.

• Author: Bagenstos, Samuel R.

THE TRANSFORMATION OF TITLE IX: REGULATING GENDER EQUALITY IN EDUCATION. By R. Shep Melnick. Washington, D.C.: Brookings Institution Press. 2018. Pp. 325. $35.99.

We are, once again, in the middle of a battle over the legitimacy of the administrative state. (1) An increasingly vocal band of scholars criticizes administrative agencies as unaccountable, elitist, captured, and implementing bad policy. (2) The more populist elements of the Trump Administration's rhetoric have taken this critique to a broader audience, to great political effect. (3) Though the picture is complex, the Roberts Court has appeared sympathetic to important aspects of the critique. (4)

Agencies enforcing civil rights laws--and particularly the Department of Education's Office for Civil Rights (OCR)--have been a principal target of the critics of the administrative state. (5) The heat on OCR increased with the Obama Administration's aggressive efforts to enforce Title IX of the Education Amendments of 1972. The Obama-era OCR's policies on campus sexual assault and the rights of transgender students drew substantial blowback. (6)

With The Transformation of Title IX, R. Shep Melnick (7) steps into this fight--and he takes the side of those who find OCR's actions illegitimate. Melnick is a leading right-of-center scholar of regulation and the administrative state. In this book, he takes on the administration of Title IX. He focuses on three especially controversial contexts in which the courts and OCR have applied the statute: intercollegiate athletics, campus sexual harassment and assault, and the treatment of transgender students in elementary and secondary schools. He argues that OCR and the courts have, through a process of "institutional leapfrogging," steadily adopted more and more intrusive rules governing educational entities (pp. 6, 14, 15, 90, 152, 232, 243-44, 253, 255). He contends that these rules are highly contestable and neither specifically required by the statutory text nor envisioned by the statute's drafters (p. 22). But, he argues, the leapfrogging process--in which the agency pushes forward, then the courts go a bit farther than the agency, then the agency goes even a bit farther, and so on--has enabled these massive innovations in the law to fly under the radar and evade democratic checks or debate (p. 251). OCR's reliance on subregulatory guidance rather than notice-and-comment rulemaking has in his view facilitated the achievement of that result (p. 243). He concludes that "the evolution of Title IX raises fundamental questions about control, accountability, and legitimacy within a constitutional democracy" (p. 22).

The book offers an important take on some issues of high public salience. It reflects a detailed immersion in the operations of OCR, as well as a strong understanding of the legal doctrinal issues. But the book's thesis is fundamentally misguided. OCR has not subverted or evaded democracy. Rather, the agency has served as a catalyst for democratic debate, a forum in which that debate has played out, and an implementer of the will of the people. The Title IX experience, I argue, supports the claim made by some scholars that administrative agencies can be a key locus of democratic deliberation over the scope of basic rights. (8)

When OCR's approaches have become entrenched in the law--as in the case of intercollegiate athletics--it is because those approaches, which may be controversial, nonetheless earn the support of the public and important political actors. But the often-harsh public reaction to OCR's efforts on sexual assault and transgender rights demonstrates that the agency cannot sidestep political debates where such a strong public consensus is not yet available. In these contexts, far from preempting democratic politics, the agency becomes a venue for democratic deliberation and debate. I elaborate on these points in Part I below.

In Part II, I dig into the specific procedural critiques Melnick offers. I show that OCR's reliance on subregulatory guidance has not evaded democratic checks. And I argue that Melnick's claim of "institutional leapfrogging" is probably not correct--and that, in any event, any "leapfrogging" that has occurred has been fully consistent with democratic deliberation.

I should note that this brief Review focuses on Melnick's procedural argument--that OCR's actions subvert democratic decisionmaking. The book is also plainly driven by substantive disagreement with OCR in each of the areas it discusses. Melnick makes clear that he believes that OCR has put too much of an emphasis on gender parity in intercollegiate athletics, (9) that the agency has adopted a too intrusive and victim-protective regime for campus sexual assault,10 and that it should not be dictating which bathrooms schools may allow transgender students to use. (11) This brief Review is not the place to respond to those arguments on the merits. But it will not come as a surprise to readers that I take a different view than does Melnick on these matters. (12)

1. THE VIEW FROM 30,000 FEET: EXPLAINING THE PATTERN OF POLICY OUTPUTS

   Melnick argues that OCR has evaded democratic checks by pursuing major policy through enforcement actions and subregulatory guidance, and that the courts have aided and abetted the agency through a below-the-radar process of "institutional leapfrogging." He supports this claim by digging into institutional detail. He pursues the various agency and court actions in each of his three policy areas of focus and identifies a variety of moments in which OCR failed to pursue a more overt strategy of policy change.

   Melnick's close-to-the-ground approach has a real value, and one cannot fully refute his argument without taking it on its terms. I attempt to do that in Part II below. But we can gain a useful reality check by taking a wider-angle view. If we look at the overall pattern of policy outputs in Melnick's three areas of focus, does that pattern suggest that OCR and the courts have evaded democratic checks?

   The answer, I would submit, is no. Melnick discusses three policy areas. In one of them--athletics--OCR's approach has become entrenched over many decades across several presidential administrations. In the others--sexual harassment and the rights of transgender students--the Obama Administration's OCR took a much more aggressive approach than the agency had in the past, its actions provoked significant judicial resistance, and the Trump Administration largely reversed course. This pattern demonstrates responsiveness to, not insulation from, public opinion.

   Melnick asserts that Title IX's regulation of college athletics has only "seldom" been accompanied by "sustained debate over the meaning of equality or the purpose of athletics in the educational setting" (p. 88). Rather, he says, policymaking has expanded through steady accretion "by administrators and judges who almost always claim they are just following previously established policy" (p. 88). This process, he argues, "narrowed the political debate" and hid the true stakes from the public (p. 144). Yet Melnick himself identifies numerous occasions through the years in which the statute's application to athletics was a prominent subject of public legislative and administrative debate.

   During the period in which the Department of Health, Education, and Welfare (HEW) was drafting its initial Title IX regulations in the early 1970s, Congress specifically addressed the athletics issue. Senator John Tower proposed to amend the statute to exempt "revenue-generating" sports, but the Senate rejected that proposal (p. 94). Instead, Congress adopted the so-called Javits Amendment, which required the Secretary to issue Title IX regulations that included "with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports." (13) When President Ford's HEW Secretary issued those regulations in 1975, the House Education and Labor Committee held hearings to evaluate them. (14) But neither house of Congress exercised its pre-Chadha (15) legislative veto authority. (16) It is true that President Carter's HEW Secretary refused to submit a further set of athletic guidelines to Congress for approval in 1978 (p. 97). But that hardly kept the issue out of public political debate. When Congress passed the Civil Rights Restoration Act in 1988, to overturn the Supreme Court's Grove City (17) case and extend Title IX's protections across an entire university that receives federal funds, the floor debates indicated "that the enactment was aimed, in part, at creating a more level playing field for female athletes." (18) George H.W. Bush assumed the presidency the next year. His administration "announced that it would make enforcement of Title IX one of its top priorities" and "backed its words with action" (p. 103). President Clinton's OCR did the same (p. 105).

   Although some Republican members of Congress who served in the new Gingrich majority sought to "rewrite Title IX to reverse OCR and the courts," Melnick notes that they "got nowhere" (p. 120). Public opinion stood firmly in favor of the use of Title IX to expand women's athletic opportunities, even if that policy imposed costs on men's sports. "A 2000 Wall Street Journal/NBC poll found that 70 percent of Republicans and 79 percent of Democrats approved of 'cutting back on men's athletics to ensure equivalent athletic opportunity for women.'" (19) When the George W. Bush Administration tried to roll back athletics enforcement a few years later, it found itself forced to back away in the face of political pressure (pp. 120-22).

   Title IX's application to intercollegiate athletics hardly looks like a case in which a backroom bureaucratic cabal, with the aid of a willing judiciary, snuck one past the American people. Rather, it looks like a case in which the American people got what they wanted. The issue was prominent, it was fought out in...