[NOTE: Cross-Posted on College Insurrection]
“Did you know,” asks Mary Ann Mason, professor and co-director of the Berkeley Law Center on Health, Economic & Family Security and former dean of the graduate school at the University of California at Berkeley in a long article today in the Chronicle of Higher Education, ”that Title IX specifically includes important protections for pregnant women and mothers?” She thinks that you probably don’t — because you think of Title IX as concerned only with athletics and sexual harassment — but that you should, because in fact it “prohibits gender discrimination in any education program receiving federal money.”
Mason argues that discrimination against pregnant women in higher education is quite extensive — “female Ph.D.’s who are married with children are 28 percent less likely to find a tenure-track job than married fathers”; colleges violate Title IX when they “they fail to allow pregnant mothers a reasonable period of leave for childbirth and if they fail to guarantee that students can return to their former positions as teaching assistants or postdoctoral research fellows after maternity leave”; and then there are many like “the postdoctoral particle physicist who was effectively blacklisted by her adviser when she had a baby.” Because the discrimination against pregnant women is so rampant, she concludes hopefully, “[b]abies may indeed become the new Title IX frontier.”
If so it is a frontier fraught with formidable natural and man-made obstacles. One of them is that it’s easy to say that Title IX prohibits discrimination against pregnant women or mothers, but it’s hard to define the discrimination that it prohibits. Consider, for example, the surprising ambiguity of Title VI, a frighteningly apt comparison, which similarly prohibits discrimination in any education program receiving federal money. Its language seems perfectly clear:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
“The plain language of the statute” was clear enough to Justice Stevens in Bakke, and to the framers of the Civil Rights Act like Sen. Humphrey whom he quoted:
The opponents feared that the term “discrimination” would be read as mandating racial quotas and “racially balanced” colleges and universities, and they pressed for a specific definition of the term in order to avoid this possibility. In response, the proponents of the legislation gave repeated assurances that the Act would be “colorblind” in its application. Senator Humphrey, the Senate floor manager for the Act, expressed this position as follows:
[T]he word “discrimination” has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . .
The answer to this question [what was meant by "discrimination"] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . The Internal Revenue Code does not provide that colored people do not have to pay taxes, or that they can pay their taxes 6 months later than everyone else.
110 Cong.Rec. 5864 (1964).
[I]f we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans. If we did that, we would not need to worry about discrimination.
But, as we all know, Justice Powell and his colleagues found neither Senator Humphrey nor Justice Stevens persuasive, and ever since Bakke “no person … shall be subjected to discrimination” on account of race or ethnicity in programs receiving federal financial assistance has been interpreted to allow discrimination on account of race and ethnicity where higher educators have deemed such discrimination necessary to provide “diversity.”
Since Title VI allows universities the discretion to discriminate on the basis of race and ethnicity, it is reasonable to ask, why shouldn’t the identically worded Title IX allow them discretion to discriminate on the basis of gender? But of course Title IX has been used to justify discrimination against men, as even CBS News has noticed (“hundreds of men’s teams have been eliminated”). “Title IX,” as I argued most recently here, “has nothing to do with ending discrimination. Like so much of what passes for civil rights these days, it is all about promoting ‘equity,’ i.e., proportional representation in college sports, whether or not the interests of men and women students is proportional.”
“Equity,” of course, is in the eye of the beholder. Try to imagine, if you’d like to punish yourself with a difficult thought experiment, some senator trying to give as clear a definition of it as Senator Humphrey gave of discrimination, to no ultimate avail, in debating the 1964 Civil Rights Act.
If babies are indeed to be the new frontier of Title IX, then perhaps we can look forward to the U.S. Office of Education and the Dept. of Justice demanding that they be proportionally represented in all science labs receiving federal funds.