Complying With Title IX: How Harvard Interprets the Law

For the last seven years, the Women's Science Alliance has brought together 35 incoming female first-year students for an intensive weeklong program to study science and the experience of women in the sciences at Harvard.

No longer. Now that Harvard and Radcliffe have merged, Harvard says the Women's Science Alliance--and programs like it--are illegal because they discriminate against men. Administrators have already told Radcliffe programs that once admitted only women that they must open their ranks to men.

But Harvard's assertion is based on a particular interpretation of Title IX of the 1972 Educational Amendments--a law fraught with gray areas. Since its inception, universities and colleges across the country have struggled to afford male and female students unique educational opportunities while still staying within the law.

But Harvard interprets Title IX more stringently than others. Schools like Dartmouth and Brown have proven more willing to consider single-sex educational programs--like the Women's Science Alliance--as part of the mission of a co-educational university. At several other universities, a single-sex Science Alliance could still have a future.

It's the Law

Harvard's reasoning goes a little like this: Title IX prohibits all educational institutions that receive federal funds from operating any program that discriminates on the basis of sex. Radcliffe's organizations were exempt from Title IX because the law explicitly allows such programming at traditionally single-sex colleges.

But the Radcliffe Institute for Advanced Study that now sits in Radcliffe College's place has no Title IX exemption.

As Harvard sees it, to join the College, all Radcliffe programs must now open their doors to men. Otherwise, Harvard could be open to a lawsuit.

And so the students who have helped Radcliffe plan have been told the Women's Science Alliance will either disband all together or morph into a general science program aimed at men and women.

This legal interpretation of Title IX suits Harvard well because College policy has long prohibited programs open to only one sex anyway. No final clubs, no women's center, administrators have argued for years.

"I believe that equality of opportunity means just that--to the extent that we can achieve it, all our programs should be open to all our students on an equal basis," Dean of the College Harry R. Lewis '68 writes in an e-mail message.

Yet other colleges that are less hostile to single-sex programs don't see Title IX quite the same way.

Some are still reeling from Title IX's implications for athletics, which frequently means schools must pump money into women's sports in order to avoid the appearance of inequity. Still focused on creating equal playing fields, most have not even considered the implications of Title IX for single-sex mentoring and counseling programs.

Furthermore, the rules governing Title IX compliance with respect to academic programs has never been ironed out--only a court can flesh out the law's official interpretation, but no school wants to be the legal guinea pig. As a result, most schools have been wary of instituting single-sex academic programs that could open them up to a legal challenge.

Still, schools with looser interpretations of Title IX exist, and it is those administrators that have decided that single-sex programming serves a higher goal.

The WILL Model

This weekend, 11 colleges and universities, including Duke and Dartmouth, will travel to a lakeside campus in Virginia to learn about a unique program for women that could be implemented on their own campuses in the near future.

Operated by the University of Richmond, Women Involved in Living and Learning (WILL) is a four-year program with academic and social components. Every one of the program's more than 100 participants--who enter WILL immediately upon arrival on Richmond's campus--graduate with at least a minor in women's studies. In addition, they attend lectures, workshops and run their own student government.

But WILL admits only women--a point program directors insist is exactly what makes it work.

"Given the power differentials in this culture, for women to have a space and place to talk, organize and act is crucial," says Holly J. Blake, director of the WILL program. "For many it provides an outlet for activism, for others [WILL is] a community."

According to Blake, the program has yet to think about how Title IX might affect its admissions policies. And the University of Richmond is in an unusual Title IX situation. Though men and women attend classes together, they live separately at two "residential" colleges, each of which operates its own extracurricular activities and administration.

In the gray world of Title IX, the women's campus, Westhampton College, may very well be eligible for the same kind of Title IX exemption Radcliffe College once enjoyed.

But Dean of Westhampton College Patricia C. Harwood says the importance of single-sex programming should outweigh Title IX considerations, even at schools that receive no explicit Title IX exemption--like those visiting Richmond to learn about WILL this weekend.

"I think that if we use Title IX to eliminate gender-specific efforts in education, I think we are throwing the baby out with the bath water," Harwood says. "I think it's very helpful to have both single-gender and co-educational experiences in one's collegiate life. It's not that one should negate the other, but that one learns different things from each."

She encourages schools worried about WILL's Title IX implications to form similar, though separate, programs for men--a MILL program, so to speak.

Officials from both Duke and Dartmouth say attending this weekend's conference is no sign of commitment to establishing a program like WILL on their own campuses.

"We're going to go check it out, but it's all very preliminary," says Donna E. Lisker, director of the Duke women's center.

Both schools say they want to learn more about the program before deciding to go ahead, much less limit attendance to women.

Dean's Discretion

According to Giavanna Munafo, director of the women's center at Dartmouth, school policy there provides for a Title IX runaround that might allow a program like WILL, but only with the approval of Dartmouth's administration.

Munafo explains that Dartmouth officially examined single-sex programming and Title IX law three years ago. At that time, Dartmouth formulated a policy quite similar to Harvard's--but with one crucial exception.

Like Harvard, administrators declared that no program could be open to only one sex. But, they carefully announced, the dean would retain the right to allow single-sex programs when an overriding educational purpose could be served.

"If I really wanted to say men can't come, I would have to go to the dean and explain why I thought [it] was necessary [to limit access], knowing that it would expose us to non-compliance," Munafo says.

Thus, Dartmouth has a counseling program for victims of sexual abuse, open only to women.

But Munafo says women's groups have been hesitant to ask for the dean's exemption. A dinner discussion group that once allowed only female table guests went co-ed with the new policy, with only bare minimum of grumbling.

Munafo says the women who grappled with that decision emerged with an entirely new perspective.

"Is it really about sexual difference or is it about political difference?" she asks. "Is it that there are men who we would rather not be distracting us? It's a learning experience, dealing with people who disagree with us."

Legally Conscious

Even Brown University, subject of one of the most highly publicized Title IX lawsuits in recent memory, has been slow to apply the law to all-female educational programs.

In 1991, female athletes accused Brown of violating Title IX when the school tried to eliminate women's gymnastics and volleyball programs. After six years of legal wrangling which took them all the way to the Supreme Court, courts ordered Brown to keep the number of women compared to men involved in sports within 3.5 percent of the ratio of women to men in the undergraduate population.

But even with its heightened awareness of Title IX, Brown has allowed a counseling program limited to women.

The Women Peer Counseling program places upperclass women in first-year dorms to advise first-year students about women's issues ranging from sexual assault to eating disorders.

Margaret Klawunn, director of the Sarah Doyle Women's Center at Brown, says the Women Peer Counseling program may expand its ranks to include male counselors. But she insists such a move would represent a shift in philosophy for the program, not a legal consideration.

"It's moving more toward being a gender issues [program]," she says, explaining that many program participants would like to see the counseling embrace a wider range of issues.

"One of the things that's interesting about the legislation is that it's so broad," Klawunn says. "The idea was to create equity for women and men. I think there are cases where it's been taken advantage of in ways that still don't make sense, because of power dynamics in our society."

Cautiously Complying

Harvard administrators respond cautiously to news of single-sex programs that continue to exist at other institutions.

"I'm not familiar with those programs, but at Harvard we place great importance on compliance with the non-discrimination laws, including Title IX," says Robert B. Donin, the University's deputy general counsel. "If we didn't comply with Title IX, we could face a lawsuit or lose our federal funding."

The merger between Harvard and Radcliffe places the College in a situation unlike that of other schools dealing with Title IX. Nowhere else in recent memory has a school had to transition abruptly from a legally defined single sex institution (complete with Title IX exemption) to a co-educational one.

And for now, Harvard will proceed carefully, looking to its lawyers to help it steer clear of legal land mines.

"Harvard will not do anything which its best legal counselors advise us would be illegal under Title IX," Dean Lewis writes in an e-mail message.

For Lewis, Title IX simply reinforces a general principle of open access he has applied at the College for years.

"We have our own standards of equity that may well be stronger than the congressionally mandated standards in some cases," he says. "As a general matter, [I] believe that any gender restrictions that can be lifted, should be lifted."

But women involved in programs like the Women's Science Alliance say that critical mentoring opportunities will forever be lost as Radcliffe's programs become Harvard's and are forced to go co-ed.

"This is the last year for Science Alliance as it exists now," says Elizabeth D. Chao '00, president of Women in Science at Harvard and Radcliffe (WISHR) and herself a former participant and organizer of the Alliance. "I find that very disappointing. You lose the mentoring aspect. You lose the camaraderie."