Chapter 25: Title IX

October 31, 1982, McKinley, Ohio

"What are you doing here?" I asked. "And please tell me you just arrived!"

"Mom and Dad were away for the weekend," Emmy replied with a smirk, "so I came to visit! And I got here last night!"

"Please tell me you didn't..."

"All night! Wow!"

"Your dad will kill ALL of us if he finds out!"

"I'm not going to tell him! Are you?"

"No, of course not! But seriously, Emmy, this was super dangerous!"

"And super fun!"

"Where's Clark?"

"He went to the john."

"I need to get dressed."

"And so does your friend!" Emmy laughed.

Sandy and I went into my room, where she gathered her clothes and then waited while I dressed.

"Is it that bad?" Sandy asked quietly.

"You tell me," I said with some annoyance. "Her dad is a serious racist, and her grandfather was in the Ku Klux Klan."

"Uhm, yeah. That bad. I'm thinking the policy which says we can't keep guns in our rooms might be a problem."

"Do you have a gun?"

"A .22 rifle," Sandy replied. "You?"

"The same," I replied. "But a bolt-action .22 isn't exactly the best weapon for indoors. A handgun of some kind would be. But we aren't allowed to have any firearms."

"How serious is this? I mean, really?"

"As a heart attack," I said. "Len Nelson better never find out."

I finished dressing, and we left my bedroom.

"Do you have a death wish?" I asked Clark when I saw him come into the room.

"You aren't going to tell on me, White Boy! And neither is this sweet thing!"

Angie arrived a minute later, and I could tell from her eyes she was just as surprised to see Emmy as I was. Angie didn't say anything except 'Hello', and then we headed for the elevators.

"Has she lost her mind?" Angie asked quietly.

"That was pretty much my question," I said. "I'm seriously considering changing rooms, but I doubt that would assuage Emmy's dad's anger. I think he'd still blame me for introducing them."

"And how would Clark take you changing rooms?"

"That would obviously be a problem, too. This is a bad situation all around. And simply because Emmy was angry with her dad."

"You honestly think that's the reason she did it?"

"Absolutely. And not telling me she was coming to McKinley seems to prove that, at least in my view. She knew I'd do my best to talk her out of it. I mean, it's up to Emmy to decide what she does, but the risk here is just too great. I just hope she has it out of her system and doesn't try it again. If she does, or they start some kind of relationship, then I think I have to change roommates. I really don't see what else I could do."

"Will you say anything to Clark?"

"Not now. I made my point when I asked him about the 'death wish'. Now it's up to him to decide what to do."

November 3, 1982, McKinley, Ohio

On Wednesday, Clarissa, Sophia, Lee, and I walked together to the Biology Department lunch with a bit of trepidation. Dean Parker had launched a campaign to defund all campus clubs, activities, and programs which didn't have equal numbers of men and women. According to Melody, she was basing it on Title IX and had a good chance of succeeding, at least in some areas. Doctors Norris and Stanton had invited a speaker to talk to us about it and the potential impact on the Honors Program.

We arrived, lunch was quickly served, and then Doctor Norris introduced the speaker, Ms. Althea Harris, an attorney.

"First, let me reassure you all that these Departmental lunches are in compliance with every aspect of Title IX in that there are four females and four males. Even if that was not the case at inception, a remedy which eliminated equal participation by males would not be accepted by the courts, as Title IX very specifically prohibits discrimination based on sex.

"The areas where there MAY be concern, and I say 'may', are athletics, admissions, and honors programs. I believe the most pressing issue in your minds would be the honors programs. What I will tell you is that nothing in Title IX, nor in any of the regulations created by the Department of Education, supports the notion that all existing programs must be canceled. Instead, they support the idea of remedies to prevent future discrimination. That said, the University is free, within the bounds of its State charter, to restructure the programs as it sees fit. But there is NO requirement that they do so.

"What does this mean practically? For all of you and the others in the honors programs, there should be no changes. There MAY be changes to selections in the future, though purely merit-based selections are permitted IF they are not designed to discriminate against one sex. When there is a disparate impact, you get into a grey area. If the intent of the criteria for participating in a specific honors program is non-discriminatory, then Washington v. Davis applies, and there is no problem. In that case, the Supreme Court ruled that merely having a disparate impact was insufficient — discriminatory intent had to be shown.

"My review shows that in the science departments, female membership in the honors programs is within a statistical margin of error of female enrollment. What that says to me, as an attorney, is that the programs themselves do not discriminate. Female attendance is lower than the population from which students are typically drawn — the State of Ohio. The same is true for minority attendance. Current enrollment appears to properly reflect the racial and gender breakdown of applications, which means, again to me as an attorney, that the admissions process is not discriminatory.

"One area which WILL be evaluated carefully is the awarding of grants and scholarships, though I haven't looked into the details of those as yet. Historically, more scholarships and grants were given to males than females, as there was a general attitude that a woman would eventually go on to be a full-time mother and/or homemaker, and as such, the scholarships and grants were 'wasted'.

"Now, all of that said, it is entirely possible that lawsuits could be filed and remedies ordered. It is also possible that an internal review might make changes to the programs. And finally, legislation by the State or Federal governments might change how Title IX is implemented or interpreted, and the Department of Education may issue new regulations. I'll take questions if you have any."

"So you're saying they can't kick us out of this lunch because it's half guys and half girls?" Lee asked.

"That's correct. But the University could choose to defund any program at any time."

"What happens to our grants?" I asked.

"In theory, if they're found to be discriminatory, the courts could order a range of remedies. It is VERY unlikely they would order the withdrawal of grants, which were promised to continue until your graduation. The most likely remedy would be to change future grants so as to provide more money for women. How that might work out would be determined by the courts or the Department of Education."

"I'm a Senior," Don Ochs said. "Will this really affect me?"

"Most likely, no. It's highly unlikely any changes would be implemented before you graduate."

"What can we do to ensure the programs we care about aren't defunded or canceled?" Clarissa asked.

"Make sure you get involved and attend every meeting possible and make your case. My advice is to simply argue for the status quo for any enrolled students. If you believe there are things which need to be addressed, work to ensure they apply to new students only."

"What do you think the chances of Dean Parker succeeding are?" Clarissa asked as a follow-up.

"That really depends on the administration," Ms. Harris said. "My initial evaluation says that unless there is some kind of huge disparity between application and admission ratios, which there does not appear to be, then the only likely changes would come in finding ways to encourage more women to apply. Well, with the exception of team sports, which is an open question. And that is likely the place where the strongest effects will be felt."

"Why do you say that?" Sophia asked.

"The NCAA is dominated by male sports, with funding for female athletics being an afterthought at best. Very few people think equal funding is required by the law, but certainly equal opportunity is. What that probably will mean is some of the less important, from a financial standpoint, men's sports will be dropped in favor of new women's sports. Except for a few radicals, nobody believes that Ohio State, for example, would be required to spend as much money on women's soccer as they do 'Big Ten' football.

"That said, they will likely have to eventually offer equal numbers of sports scholarships to men and women, or at least match them to attendance ratios. So, if there are ten football scholarships, there will likely need to be ten soccer scholarships, or perhaps some other women's sport, such as softball or basketball, instead. Does that make sense?"

"Yes, and I actually believe that's fair," Sophia said. "But academics are purely merit-based, at least at this school. You said before that the ratios line up."

"They do, and it's my opinion, which is shared by other attorneys who work on Civil Rights issues with colleges, that if women are properly statistically represented, the issue is one of recruiting, not of discrimination. The ratio here is about 3:2, which is actually pretty good, all things considered. There are engineering and technical schools with ratios as high as 9:1. And that problem has to be solved in High School and earlier. Young women, in general, have been discouraged from engineering and technology."

Sophia nodded, "My guidance counselor, a guy, was pushing me towards nursing rather than being a doctor."

"That's common, though not so common as it was in the past. What that does, along with marriage and motherhood, is reduce the number of women in the applicant pool. And ultimately, the University can only draw from that applicant pool. There are race issues as well, but those are covered, among other places, by Title VI of the Civil Rights Act of 1964, which outlaws discrimination in any program which receives Federal funding. And again, that appears to be a matter of recruiting, not of academic discrimination."

"Is it OK to discuss unrelated topics?" Lee asked.

"It depends on what you mean, Lee," Doctor Norris replied.

"Student rights, in general."

"You're referring to the arrest of the student last week?"

"Yes."

"Let me take that," Ms. Harris said. "As I'm sure you all know, Ohio has made possession of personal consumption amounts of cannabis the equivalent of a speeding fine. But nothing has changed at the Federal level. It's still very much illegal to possess ANY marijuana. And Ohio does enforce distribution and trafficking laws against marijuana dealers. So, in that regard, there is very little that can be done. Trust me, the last thing you want is Federal involvement, and if the school doesn't coöperate with local law enforcement, that's what could happen.

"That said, the school did assert your rights against your private rooms being searched without a warrant. That was subject to internal debate, and fortunately, the University's attorney prevailed. There were members of the Board who believed they could, and should, authorize the police to search even the private rooms."

"How?" I asked. "Don't they need a warrant?"

"Maybe. There are exceptions for things such as preventing destruction of evidence, searches incident to an arrest, or if consent were to be given. The question of whether the University can give such consent is certainly open for debate. In the end, the police do not appear to have been able to convince a judge to issue a blanket warrant because of the decriminalization statute. Basically, possession of a joint, or even a small baggie of marijuana, is not a crime, and as such, the local judge refused to issue a blanket warrant."

"You mean the school could authorize a search of every room? Even if it's locked?" Martha Knox, a Junior, asked.

"They could. A student would have to challenge the search as unlawful if charges were brought and seek to have the evidence excluded. It's a grey area. The question is one of how far the concept of in loco parentis can be applied to students who are eighteen and older. Generally, the worst practices have been eliminated, such as curfews for women, expulsion for getting pregnant, and that sort of thing. But that doesn't mean it's a free-for-all.

"With regard to High Schools, there's a case working through the New Jersey courts right now about whether a High School could search a fourteen-year-old's purse without a warrant. Remember, after Terry v. Ohio, not all searches require warrants, and that includes frisking you if the officer has either reasonable suspicion a crime has been committed or that you might be armed and dangerous."

"So wait, you're saying the University policy, which basically bans sex, is unconstitutional?" Don asked.

I laughed and answered, "It doesn't. It bans opposite-sex students from staying overnight and severely limits overnight guests."

Ms. Harris nodded, "That's correct. Granted, the INTENT of those policies is clear, but there is no way the University could expel anyone who simply engaged in consensual sexual relations if they didn't violate the 'overnight guest' policies."

"So gays have an advantage?" Lee laughed.

Ms. Harris laughed for the first time, "I can see why you would say that. Yes, technically, the rules only apply to heterosexual couples, as written."

"What kinds of rules CAN they enforce?" Clarissa asked.

"Just about anything they want, so long as they provide you with the rules and there is due process in dealing with infractions. Remember, 'Free Speech' isn't absolute. We all know the 'inciting to riot' and other exceptions which we're taught in our government classes in High School. Universities do have some leeway in punishing speech of which they do not approve. BUT, such limits have to be reasonable and not viewpoint-based. And survive a court challenge.

"The area where this usually arises is student newspapers. Universities DO have the right to censor student publications in some cases, usually with regard to advocating illegal activity or promoting discrimination. And, of course, the University has the ultimate trump in that they can withdraw funding for pretty much any program they don't wish to continue. You're at a State school, which does limit the University in ways that a private university would not be limited."

"Did you have a plan, Doctor Norris?" Sophia asked.

"This was about ensuring you understood the current situation and to provide you with resources to argue against any policies which you find improper and allow you to influence any changes which might be made."

"Looks like you're going to have to be involved in politics whether you like it or not, Mike," Sophia said, leaning toward me.

"Yeah," I sighed.

There were no more questions, so once we finished our lunches, Clarissa and I headed to biology class.

I hated the idea of having to become involved in anything that touched on politics, but in this case, it directly affected me and my closest friends. That meant I'd have to spend time, which I didn't have much of, figuring out how to ensure our honors programs weren't messed up by Dean Parker.

November 4, 1982, McKinley, Ohio

"I was VERY disappointed on Saturday night!" Milena said when I walked into the music room. "And so was Deb. And Jennifer and Laurie were even MORE disappointed."

"I'm sorry I disappointed all of you, but having sex that casually just isn't my thing. It's not about needing to be in love, it's well, the freedom you profess."

"What's wrong with enjoying sex and having it with whomever you want to?"

"Nothing. But the key there is 'want to'. Just because I find someone attractive doesn't mean I want to, or should, have sex with them."

"You're Russian. I bet you're Orthodox, right?"

"Yes."

"And you go to church regularly?"

"Absolutely. We went to Vespers before the party on Saturday."

"My mom is right about that, for sure. Ancient books and the teachings of celibate men are no guide for living a happy, fulfilled life."

"And yet, I know quite a few people from my church back home who are quite happy and fulfilled. We have different world views, Milena. Very different."

"I think yours need to be broadened, and you need to think for yourself, not follow the prescriptions of some tradesman-turned-god from 2,000 years ago. Or rather, the men who turned him into a god and modified his message."

"Maybe this will come as a surprise to you," I said with a smile, "but I'm happy with my life. Is it perfect? No. But I find solace and comfort in the rituals and prayers of the Church. The theology speaks to me very deeply. I find no contradiction between what I hear in church and what I observe in the world. And you don't see me rejecting science as that Protestant preacher who runs around campus who believes the earth is only 6,000 years old!"

"That fool? They should ban him from campus before he does any MORE damage."

"It's a free country, and he's free to say what he likes," I replied. "He's wrong, but that doesn't mean he should be silenced."

"Do you think the same thing about Dean Parker?"

I chuckled, "You might have me there. SHE is dangerous. The Protestant preacher is merely annoying."

"Don't you have the fantasy of being with two girls?" she asked.

"Back to that?" I grinned. "Of COURSE I do, though more because it's been proposed than anything I thought of on my own. But just because I have a fantasy doesn't mean I'll act on it, even if the opportunity arises."

"Because the Church tells you not to?"

"Because I choose not to," I said. "And to be blunt, I'm no virgin. But I also control my desires."

"Why? If what you are doing doesn't hurt anyone, what's the big deal?"

"You see, that's just it. I think it would hurt ME — emotionally and spiritually. Look, Milena, I think both you and Deb are sexy and desirable and probably would do things with me I can't even imagine right now. But I don't think it's a good idea for me."

"Good afternoon, Mike!" Doctor Blahnik called out as she came into the room.

"Hi, Doctor Blahnik."

"Mom, give us a minute, OK?" Milena asked.

"Sure."

Milena lowered her voice, "All I can say is, live a little. There is FAR more to the world than your church and your small hometown. Let us show you."