MCRI will not affect Title IX

At the invitation of Toward a Fair Michigan, I wrote a short op-ed in response to the question "If the MCRI passes, will it affect Title IX in Michigan?"

“Title IX” refers to Title IX of the Education Amendments of 1972 to the Civil Rights Act of 1964. This federal law prohibits sex discrimination against students and employees of educational institutions. It requires these institutions to maintain policies, practices and programs that provide fair and equal treatment toward males and females. Title IX is frequently mentioned in the context of high school and college sports; however, the law applies to all areas of public education including recruitment, admissions, courses, financial aid and facilities. Institutions failing to meet the conditions of Title IX are denied federal funds.

The Michigan Civil Rights Initiative will not affect Title IX in Michigan for two reasons. First, the MCRI specifically states that it “does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.” Michigan universities will still be required to follow Title IX guidelines in order to remain eligible for federal funding. Any affirmative action programs required to meet the guidelines will continue to be legal.

Second, the language of the MCRI is based on California’s Proposition 209 which was upheld by the Ninth Circuit Court of Appeals. In The Coalition v. Pete Wilson, Proposition 209 opponents claimed the voter initiative violated the Equal Protection Clause of the 14th Amendment and conflicted with Titles VI and VII of the Civil Rights Act of 1964, and Title IX of the Educational Amendments of 1972.

The Ninth Circuit Court ruled that Proposition 209 was “entirely consistent” with the 14th Amendment, the Civil Rights Act, and Title IX. In fact, the opinion written by Justice Diarmuid F. O'Scannlain seemed to mock the plaintiff’s claims by stating:

Proposition 209 provides that the State of California shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race or gender. Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender. Proposition 209's ban on race and gender preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense.

California continues to provide extensive opportunities for women in college sports and academics because Proposition 209 is consistent with the implicit and explicit intentions of Title IX. Likewise, Michigan will continue to provide women with the same opportunities.