Title IX Began as 37 Words in 1972, Here Is How It Grew Into a Rulebook

Count them yourself. No. Person. In. The. United. States. Keep going, and when you reach the last word of the sentence, "assistance," you will have counted thirty-seven. That sentence is Title IX of the Education Amendments of 1972, and for a law that has generated tens of thousands of pages of regulation, guidance, litigation and compliance manuals, it is remarkably short. It is shorter than most terms-of-service agreements you have clicked past without reading.

A short sentence that grows into a rulebook is the oldest story in Washington, and Title IX is one of the best examples of how it happens. I am not telling it to condemn the goal. Equal opportunity for women in education was a worthy aim and the law has done real good. I am telling it because the method matters to anyone who cares about who writes the rules we live under. A statute passed by Congress and signed by a President is accountable to voters. A rulebook assembled by agencies over fifty years is accountable to almost no one. The gap between the two is the subject of this post.

The sentence

Here is the text of Section 901(a) of Title IX, exactly:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

That is the 37 words. Notice the architecture. It does not say that schools shall be fair. It says that schools may not discriminate on the basis of sex, and it gives Washington its enforcement lever in the closing phrase: receiving Federal financial assistance. The law was an exercise of the spending power, a condition attached to federal money. If your school takes federal dollars, you take the rule. If you refuse the money, the rule does not bind you.

The same section, and the ones after it, carved out exceptions. Admissions to private undergraduate institutions were not covered. Military schools were exempt on admissions, and religious organizations were exempt where the law would be inconsistent with their religious tenets. Fraternities and sororities, the Boy Scouts, the Girl Scouts and some single-sex programs were not touched. It was a measured statute with edges.

The authors

Title IX was the work of a handful of legislators. In the House, Representative Edith Green of Oregon, who chaired the subcommittee on higher education, held the hearings in 1970 that built the record on discrimination against women in education. Representative Patsy Mink of Hawaii later led House efforts to protect the law, and it was renamed for her after her death in 2002. In the Senate, Birch Bayh of Indiana offered the amendment whose opening words became the core of the law.

President Richard Nixon signed the Education Amendments of 1972 on June 23 of that year. The bill was a large higher education package, and the statement on signing talked mostly about other parts of it. The thirty-seven words did not make headlines. Nobody in the room, including the sponsors, saw the full future of what they had signed. And that, too, is part of the story. The law said little about athletics. The word "sports" does not appear in the text.

1975: the first regulations

A statute that says "no discrimination" needs a definition of discrimination, and Congress left that work to the executive branch. The Department of Health, Education, and Welfare wrote the first set of Title IX regulations, which President Gerald Ford signed in the spring of 1975 and which took effect that summer.

These regulations were far more detailed than the statute. They covered admissions, treatment of students, employment, and athletics. They required schools to designate a Title IX coordinator, to adopt grievance procedures, and to evaluate their own compliance. And on athletics they said that schools must provide equal athletic opportunity for members of both sexes, with factors to be considered including whether the sports offered effectively accommodated the interests and abilities of both sexes.

Congress had a chance to review the regulations. Congress held hearings and could have blocked the regulations, and it did not. That silence is often treated as approval. A fair account has to say so, and to note that the decision to let the regulations stand was a decision made by members of Congress who did vote and who answered to voters. But silence is a thin form of consent, and the pattern, in which the agency writes the substance and the legislature merely declines to stop it, is repeated again and again in the next fifty years.

1979: the policy interpretation

In 1974, Senator Jacob Javits had added an amendment directing HEW to include, in its regulations, reasonable provisions considering the nature of particular sports. The agency's answer came in a Policy Interpretation issued on December 11, 1979. It said that a school could satisfy the equal opportunity requirement in athletics in any of three ways, which became known as the three-part test:

1. athletic participation opportunities for each sex in numbers substantially proportionate to enrollment; or
2. a history and continuing practice of expanding opportunities for the underrepresented sex; or
3. a full and effective accommodation of the interests and abilities of the underrepresented sex.

Nothing in the thirty-seven words mentions proportionality. The Policy Interpretation is an agency document, not a statute and not a bill Congress voted on, and it set the framework that courts and schools have used ever since. Prong one, in practice, is the safe harbor, because a school that matches its athletes to its enrollment by sex cannot be sued. Schools therefore have an incentive to count heads, and to cut men's teams when they cannot add women's. I will not pretend that is the full story of the law's effect, and I take up the case for separate women's teams in Why Title IX Kept Separate Teams for Women in the First Place. But the point for this post is about method: a rule of this importance came from a guidance document and not from a vote.

1984 and 1988: Grove City and the override

In Grove City College v. Bell (1984), the Supreme Court held that Title IX's reach was limited to the specific program that received federal money, not the whole institution. Grove City College, a small Pennsylvania school, refused to accept direct federal aid in order to avoid the law's requirements, but some of its students received federal grants, and the government argued that this made the college a recipient. The Court held that the financial aid office was the covered program, and no more.

Congress answered with the Civil Rights Restoration Act of 1988, which defined "program or activity" to mean the entire institution if any part received federal funds. President Reagan vetoed it, saying it would expand federal control over private institutions and violate religious freedom, and Congress overrode the veto on March 22, 1988.

I give this episode its place because it is the good version of the story. The Court read the statute narrowly, Congress disagreed, and Congress used its constitutional power to say so, by a vote that every member had to cast. You can disagree with the outcome, and I have sympathy for the colleges that argued their independence. But the process was accountable. The people's representatives made the call.

2011: the Dear Colleague letter

The story takes a different turn in April 2011. The Office for Civil Rights in the Department of Education, led by Assistant Secretary Russlynn Ali, sent a letter to every school receiving federal money. It was styled a "Dear Colleague" letter, and it was labeled guidance. The letter told schools how they must respond to allegations of sexual harassment and sexual violence on campus. Among its directives was that schools should use a preponderance of the evidence standard, the lowest standard in the law, to resolve complaints, and that they should discourage cross-examination of the accuser by the accused.

Whatever one thinks of the goal, which was to take sexual violence seriously, the method was extraordinary. The letter was not a regulation. It had not gone through notice and comment. Congress had not voted on it. Yet schools treated it as binding, because the alternative was an investigation by the agency that controlled their federal funds. A letter changed how thousands of campuses decided cases that could end a student's education. I discuss what that did to due process in Campus Sex-Misconduct Hearings and the Due Process the 2011 Letter Removed.

That sort of rulemaking by letter is exactly what the Administrative Procedure Act was meant to prevent. The Act requires that substantive rules go through public notice and comment, so that the people affected have a say and the agency must respond to objections. The Department withdrew the 2011 letter in 2017, which tells you something about how binding the agency itself thought it was.

2020: a rule by the book

In May 2020 the Department, under Secretary Betsy DeVos, did what the 2011 letter had skipped. It issued a formal regulation, after a notice-and-comment process that drew a very large volume of public comments. The rule took effect on August 14, 2020. It defined sexual harassment, required schools to follow a grievance process with notice to both parties, an opportunity to present evidence, and live hearings in higher education with cross-examination through an advisor.

Say what you will about the details: this was the correct process. A rule with the force of law, written in the open, and subject to challenge. The rulemaking record can be read, criticized, and defended. A conservative who objects to rulebooks written without accountability should not object to this one on those grounds, even if one disagrees with some provisions.

2024: a rule a court set aside

In April 2024 the Department, under Secretary Miguel Cardona, issued another comprehensive rule, taking effect August 1, 2024. Among its changes was a definition of discrimination "on the basis of sex" that included gender identity, and a broader definition of sex-based harassment, with changes to the grievance process.

Several states and groups sued, arguing that the rule went beyond what the statute authorized. On January 9, 2025, a federal district court in Kentucky vacated the 2024 rule nationwide, in a suit brought by six states. The court held that the Department had exceeded its authority and that the statute's text, which refers to sex, did not support the redefinition. The result was that the 2020 rule was back in effect. I would note that the vacatur was a district court decision and that the legal landscape on sex and gender in federal law has been contested in many courts; I state only what the court held in that case, and I leave the broader litigation to the records you can read on the court dockets.

The pattern, in numbered premises

What is the argument? Let me set it out.

1. Congress passed a short statute with a spending condition. Thirty-seven words, a lever of federal money, and a few exceptions.
2. Agencies supplied the substance. In 1975, regulations; in 1979, a policy interpretation; in 2011, a guidance letter; in 2020 and 2024, new rules. At each step the text of the statute stayed the same and the obligations grew.
3. Schools complied because the cost of refusing was the loss of federal funds. The spending power gave the agency leverage that no argument about the statute's meaning could easily overcome.
4. Congress acted only at the margins. The Civil Rights Restoration Act of 1988 is the rare case of a clear legislative decision. For most of the history, the legislature let the agencies write.
5. Therefore a code that governs athletics, discipline and student life on thousands of campuses was written largely by people the voters cannot remove.

The best case for the agencies, and my answer

The objection is easy to state. Congress cannot write every detail. A thirty-seven-word statute must be implemented, and implementation requires choices. Agencies have expertise, and the executive branch is accountable to the President. If Congress dislikes the outcome, it may legislate. In the meantime, women and girls are better off with enforceable standards than without.

I accept the premise that some implementation is unavoidable. A statute is not self-executing. But the answer is that delegation has limits. When the details decide the outcome, who plays, who is investigated, what evidence counts, the details are the law. The Constitution vests all legislative powers in Congress, in Article I, Section 1, and the Founders feared exactly the accumulation of lawmaking power in executive hands. Federalist 47 defines tyranny as the gathering of legislative, executive and judicial powers in the same hands, and an agency that writes, enforces and adjudicates its own rules has all three. For a wider view see Federalist 47 Defines Tyranny as All Powers Gathered Into the Same Hands, and for the doctrine the Court uses to police the largest claims, The Major Questions Doctrine Explained, From Tobacco to the Power Plants.

And there is a practical answer. The cleanest way to protect students is a statute that says what it means, passed by Congress after open debate. The 1988 override shows it can be done. The long train of guidance letters shows what happens when it is not.

What a citizen can do with the history

You can read the thirty-seven words, and you can read what your own school's Title IX policy says. Your school must publish its coordinator's contact information and its grievance procedures. You can attend a board or trustee meeting when the policy is revised. And you can ask your representatives whether they would vote for a clear statute on the questions that agencies keep deciding. To see who represents you, use the representatives lookup.

The case in brief

1. Title IX is a 37-word sentence from 1972 that bars sex discrimination in education programs receiving federal money, written by Edith Green, Patsy Mink and Birch Bayh and signed on June 23, 1972.
2. The 1975 regulations and the 1979 athletics policy interpretation supplied the detail, including the three-part test, without a new act of Congress.
3. Grove City College v. Bell (1984) narrowed the law, and Congress overrode President Reagan's veto in 1988, the clearest case of the legislature deciding.
4. The 2011 Dear Colleague letter changed campus proceedings by guidance, the 2020 rule did it by the book, and a federal court vacated the 2024 rule in January 2025.
5. The method is the problem: rules that govern millions should be written by those the voters can remove.

What you can do: read your school or college's published Title IX policy and ask its coordinator, in writing, which parts come from the statute and which from agency rules.