On the eve of Title IX’s fortieth anniversary, news of the federal government’s failure to meaningfully enforce the law’s provisions is troubling. Enacted in 1972, Title IX forbids sex discrimination in all schools that accept federal funds. The law has become nearly synonymous with gender equality in athletics, the area in which its provisions have had the most impact. However, as the New York Times reported last month, the Office for Civil Rights (OCR), charged with enforcing Title IX, has grown lax in initiating its own investigations in recent years. Instead the office routinely allows schools to conduct their own investigations and create their own strategies to solve internal problems of sex discrimination. Unsurprisingly, this policy has been ineffective in inspiring change. According to Neena Chaudhry, senior counsel at the National Women’s Law Center, “many schools are getting away with providing less opportunities to girls because they don’t do what they’re supposed to unless made to.”

OCR must overhaul its enforcement efforts if the progress that Title IX has made in expanding women’s rights is to continue. No one disputes that Title IX has already accomplished a great deal in the fight for gender equality. The number of female high school athletes has increased by 940% since the passage of Title IX. The number of female varsity college athletes has increased by more than 450%. Indeed, recent studies have shown that Title IX has had a direct impact on women’s education and employment. One study, conducted at the University of Pennsylvania, found that changes set in motion by Title IX explained 20% of the increase in women’s education and about 40% of the rise in employment for 25-to-34-year-old women. Even more importantly, Title IX has given all women, not just athletes, the opportunity and the confidence to chase dreams and succeed in careers once thought to be a man’s domain.

But such accomplishments are threatened by the current underenforcement of Title IX. Underenforcement has plagued past struggles for civil rights. For example, although Brown v. Board of Education guaranteed all schoolchildren the right to attend desegregated schools, the Supreme Court’s vague “with all deliberate speed” timetable and the political branches’ unwillingness to quickly implement the law led to years of delay. Indeed, enforcement problems with school desegregation continue to this day, as evidenced, for example, by the federal courts’ recent takeover of the Tuscon, Arizona school system.

In order to truly fulfill the purpose of Title IX, OCR must seriously investigate potential violations. There is evidence that reform is underway. Since President Obama appointed Russlynn Ali to head OCR, the office has become more aggressive in initiating investigations and taking on powerful schools. Janet Judge, a lawyer specializing in Title IX, said she had noticed a difference since Ali’s arrival. “Enforcement is at the highest level I’ve seen in my almost 20 years of Title IX practice,” she said. Only a continued commitment to enforcement will ensure that the movement toward gender equality marches forward.

Last month, Governor Rick Scott of Florida signed a bill requiring Temporary Assistance for Needy Families recipients to undergo drug testing. If a recipient tests positive for drugs, she or he becomes ineligible for benefits. Scott reasoned that this law prevents taxpayer money from subsidizing drug addiction.

The passage of this legislation sparked a debate in the legal community regarding whether Governor Scott’s drug testing requirement violates the Fourth Amendment rights of welfare recipients. This Constitutional discussion is certainly important – indeed, critics’ Fourth Amendment arguments against the legislation may ultimately lead to its invalidation – however from a civil rights perspective, the discriminatory nature of the legislation is even more important.

Scott’s legislation sanctions a form of mass profiling – “economic profiling.” It forces lower-income individuals to undergo intrusive tests in order to receive government benefits, but does not render benefits received by other groups contingent on undergoing such tests. Supporters of the bill assert that there is nothing discriminatory about it; they claim that it simply addresses the reality that a disproportionate amount of welfare recipients are drug users.  Even if this claim were true (and it is questionable), it cannot justify government action that targets a broad population based on purported characteristics of some of its members.  Such action constitutes a paradigmatic example of discrimination.

Furthermore, still assuming the truth of supporters’ assertions, the legislation does not target other groups that similarly include significant numbers of drug users. Many middle and upper class college students receive some form of government aid and many of these students are drug users (if you don’t believe me, go to a party at my alma mater). Yet Scott’s legislation does not condition students’ government-issued benefits on negative drug test results. Nor does the legislation place such requirements on tax breaks – which are government benefits by another name – to wealthy individuals in high-stress professions often associated with drug use. No, the legislation does not impact any of these groups; it only targets welfare recipients. It only targets the poor.

Given that courts assess claims of economic discrimination under “rational basis review,” Governor Scott’s legislation is unlikely to be struck down based on these grounds. Nevertheless, it is important that the discriminatory nature of the legislation remains a part of the debate. Raising awareness of its profound flaws may help prevent the passage of future similar legislation.

While there has always been a resistance to affirmative action policies, the present debate has added a new dimension.  There has been a rise in rhetoric concerning the notion of white victimhood, and policies like affirmative action are cited as justification for these theories.  Many conservatives paint a portrait that depicts Caucasian Americans as  victims of policies that place them at a disadvantage and promote “reverse discrimination.”  A study conducted by two Princeton sociologists on admissions and affirmative action policies at eight highly selective colleges and universities concluded that black and Hispanic candidates seemed to be the most favored, while whites were most disadvantaged by the process.  In Texas, an Iraq war veteran started a new non-profit group called “The Former Majority Association for Equality.”  A key objective of the group is to fund scholarships exclusively for white males who have at least a 3.0 grade point average. This notion of victimhood is also evident in right wing racial politics, as pundits and politicans  actually encourage Caucasians to identify with their own sense of victimhood. You can turn on Fox News any day and hear rhetoric promoting the idea that minorities don’t achieve in America on their own merits because they are unfairly helped by programs like affirmative action, which allow them to benefit from racism that has been long dead, while whites are unfairly cast as evil-doing racists.

This victimhood narrative is important because of the way it portrays affirmative action policies as oppressive and discriminatory.  Discrimination against people of color and affirmative action both involve race-based considerations, but historic and contemporary discrimination against people of color differs from affirmative action in numerous ways.   A large part of racial discrimination was predicated historically on a belief in white superiority — affirmative action, however, is not grounded in any similar theory because it does not presume that people of color are more or less capable than whites.  Additionally, racial discrimination against people of color creates and protects a system of inequality where unearned white advantages are preserved, while affirmative action does not set up a structure that doles out unearned advantages.  Rather, it simply seeks to reduce the unearned advantages that white have accumulated over time.   Furthermore, racial discrimination and institutionalized racism has actually created extreme imbalances and inequities in housing, education, poverty rates, earnings ratios, etc. Affirmative action has not, nor does it seek to create these inequities in reverse.  Thus, the claim of reverse racial discrimination is misplaced.

It’s easy to see why.  Regardless of how much of Marman’s boxers may have been visible prior to the beginning of the video, by the time the pilot enters the cabin to ask him to leave the plane, Marman is in his seat, surely not bothering anyone with his arguable wardrobe malfunction.  LZ Granderson of ESPN, who spoke to Marman’s mother, said “”the reason that black parents like [Marmon's mother Donna] Doyle are on their sons about something as mundane as pulling up their pants is not that they’re too old to understand but rather that they’re old enough to understand the world all too well.”

Marman begins the conversation in polite astonishment at what he is being asked, and gets understandably angrier as the incident progresses.  It is worth noting that Marman was flying back from the funeral of his best friend.  Still, the passenger filming the video said of Marman, “”His demeanor never changed from, ‘I’m not getting up, I didn’t do anything wrong, I paid for my ticket.’ “  The fact that he remained as reasonable as he did is fairly remarkable.  I’m not sure I would have behaved nearly as politely in the same situation.

According the Marman’s attorney, Marman finally got up from his seat after fifteen to twenty minutes of conversation once he was promised a refund of his ticket, and police surprised him by handcuffing him once he left the plane.  He was arrested and held temporarily on charges of trespassing, battery, and resisting arrest.  The arrest could jeopardize his scholarship.

The story has taken an interesting, if disheartening, turn this week with the revelation that a man dressed only in women’s underwear was allowed to fly on a US Airways flight just days before Marman’s loose waistband caused such a stir.  The man, seen in the photograph at the right, had a bare midriff, and far more visibility of the outlines of his covered parts than would be provided by any pair of boxer shorts I have ever encountered.

The photo has forced US Airways to repeatedly confirm that the airline does not, in fact, have any formal dress code, leading one to the unfortunate conclusion that it was Marman’s skin, appropriately covered or not, that led to his arrest.  Marman is a large black man with dread locks, and given the circumstances of his flight, one could forgive him for not flashing a broad smile at the flight attendants as he boarded.  When Marman didn’t pull up his pants when first asked, it led the crew to believe he intended to cause trouble, a rather enormous logical leap without underlying assumptions about black men.

Hopefully the airline will do all it can to right this wrong.  A formal and public apology, a request that the police not pursue the charges against Marman, and possibly a financial settlement for the distress they have caused him all seem appropriate.  Unfortunately, none of that does anything to solve the underlying issue with the airline’s policy.  The Wal-mart v. Dukes case, decided this week in the Supreme Court, is another example of the danger of providing low-level employees with uncabined discretion.  Ideally the airline will recognize the risk of allowing flight crews to ask passengers to leave when they feel “uncomfortable”, a very loose standard that allows for more than a little bias to enter the equation.

Marman’s attorney indicated that Marman is now free on bail and plans to return to campus within a few days.  “He’ll fly Southwest.”

The resolution was backed by the United States, the European Union, Brazil and other Latin American countries.  However, African and Islamic countries, led by Nigeria and Pakistan, slammed the resolution saying it had “nothing to do with fundamental human rights.”

Read the resolution HERE.

Still, the Editorial Board of the Times does not seem to have thought through its position to any kind of logical conclusion.  The fact that DOMA is indefensible is clear, and yet the Obama administration is still defending it. So, they conclude, “[t]he executive branch’s duty to defend federal laws is not inviolate,” and the Justice Department should agree with the law’s challengers that it is unconstitutional and cease to defend it in court.  This position is indefensible with any kind of projection of the long-term consequences of such a choice.

A choice by the administration to stop defending a law passed by both houses of Congress and signed by the president would clearly enrage conservatives and be seen as a gross overreach of executive authority.  This overreach would likely, in turn, be seen by conservatives as a license to return the favor when next a Republican president was in office.  Progressive bills passed by the current Congress, and even bills long-standing in federal law, would be at risk of being overturned by conservative courts simply by virtue of not being defended by the Justice Department.

The most obvious candidate for this treatment would be the health care overhaul.  The current challenges to the health care bill are surely to continue through 2012 and even conceivably 2016.  If, in either of those elections, a Republican were to take the White House, they would face the choice to defend the law, or to agree with its challengers that it is unconstitutional.  If the current administration allows DOMA to go undefended, the health care law would likely precipitate the same choice by a future Republican administration.

The grand effect of this precedent would be to give each successive presidential administration an effective veto on the legislation passed under previous congresses and presidents.  Whenever a president of one party signed into law a bill opposed by the opposition party (which currently would be all of them), opponents could simply wait until a president from the opposition party is elected, challenge the law in court, and sit back assuming that the current president would support their challenge.  Without standing to oppose these challenges, no parties outside the federal government could stand up to prevent the invalidation of law after law, and then reinstatement of an opposed legal regime by each successive administration.

Even if President Obama opposes DOMA, which he does, and even if the arguments supporting DOMA are weak, which they are, the Obama Justice Department should still make those arguments.  Some of the more extremely facially discriminatory arguments could be avoided, but overall a sitting administration has a responsibility to defend a law currently on the books.  There is no reason to believe a law on such weak constitutional footing as DOMA will ultimately be upheld.  Progressives should wait until the inevitable striking down of DOMA is final.  If the law was defended throughout its legal challenge, conservatives will be left with few arguments for reverting back to any kind of DOMA-like regime.  Any steps by the Obama administration to do anything less than fully defend DOMA (to the extent it is defensible) will only be fodder for conservatives to attack the process, rather than the substance, when the law is overturned.

There are many constitutional issues on which I would not encourage patience.  Waiting for democracy to grant rights that should be fundamental guarantees too often leads to indefinite waiting.  In this case, we are waiting not for democracy, consensus, or majority opinion.  Instead, democracy has spoken with a unconstitutional voice, and we are waiting for the process of judicial review to take its course.  Though this process is slow, it is inevitable.  Let the different branches of government do their respective jobs, the executive defending the law and the judiciary judging its validity.  DOMA will be struck down, and the process that achieves that result will be unimpeachable.

On the gay marriage front, cases like Goodridge (MA case allowing gay marriage) and Perry v. Schwartzenegger (the CA case striking down an amendment defining marriage as between a man and a woman) have noted that, as with racial discrimination, “separate is not equal.” The Courts noted that such laws create a separate institution (Civil unions) for gay people, for the express purpose of denying them the ability to marry based on their choice of partner. Now, a lawsuit in the U.K. by straight couples who were not allowed to obtain civil unions offers a chance to test the theory that courts can only see this type of discrimination when members of the “in-group” challenge it.

The public ethic against discrimination finds its barrier at the edge of consciousness. Almost everyone in the workplace understands that discrimination is prohibited, and this understanding reduces acts of open hostility or conscious discrimination. Far fewer people in the workplace understand how underlying stereotypes can operate at an unconscious level to affect workplace decisions. This form of discrimination, while less well understood, is also prohibited. As a result, discrimination continues to occur, even in an environment where it is condemned and even by people who share in its condemnation.

The enforcement mechanism has found its barrier in a legal environment where typical dispute resolution options are unattainable for most victims of discrimination. For most workers, it is prohibitively burdensome to obtain legal assistance or to take effective action.

Although it is necessary to address both of these barriers — the complex nature of discrimination and problems with the enforcement mechanism — this article focuses on the latter, ending with a discussion of possible solutions.

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