Danny Moreno1Danny Moreno is a Topic Access & Recruitment Editor of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. They received their B.A. from the University of Chicago.

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Not only the sex discrimination cases but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s social, political, and economic life?

Justice Ruth Bader Ginsburg

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I.  Introduction

The legal landscape of reproductive rights confronts a wave of uncertainty with a divided court, the recent appointment of a Supreme Court justice, and a new administration. Against this troubling backdrop threatening millions of people’s bodily autonomy, advocates must not lose sight of the fight for reproductive rights as a holistic push toward policies that promote—or at least do not hinder—evidence-based sexual health frameworks. In this context, effective and accurate sex education programs stand “at the crossroads between reproductive rights and sex equality.”

Access to reliable sex education affects reproductive decision-making among young people. These decisions directly impact their educational opportunities, sometimes leading to increased rates of absenteeism and dropping out of school among young women. This impact, coupled with the traditional role of public institutions as providers of sex education, implicates a right to comprehensive sex education programs under Title IX despite agency carveouts. Though evidence-based initiatives provide a uniquely promising route for addressing a number of inequities around young people’s sexual health that directly impact educational attainment, the existence of such an educational right is largely unexplored.

This Essay discusses the tension between the statutory and regulatory frameworks that govern Title IX protections and concludes that Title IX, at the very least, offers protection against abstinence-only sex education programs because they are inherently discriminatory and contradict legislative protections against sex-based discrimination2While recognizing the importance of sex education that goes beyond the gender binary for improving sexual health among LGBTQ+ students, this Essay will discuss sex education programs and their disparate impacts in traditionally-gendered terms due to a dearth of research around gender diversity in the context of domestic sex education initiatives. under Title IX.

II.  Ineffective and Inaccurate Sex Education as Sex-Based Discrimination

Misleading sex education programs do not impact students equally—teen pregnancy is the primary reason women drop out of school; one study suggests that teenage pregnancy accounts for 27.8% of female dropouts. Comprehensive sex education could result in a significant reduction in teen pregnancy and, consequently, high school dropout rates among women.

Misinformed sex education curricula, broadly falling under the umbrella of abstinence-only3Abstinence-only education is defined as having the exclusive purpose of “teaching the . . . gains realized by abstaining from sexual activity . . . teach[ing] abstinence from sexual activity outside marriage as the expected standard for all school-aged children . . .teach[ing] that abstinence  . . . is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems . . .teach[ing] that a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity. . .teach[ing] that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects . . . teach[ing] that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society. . .teach[ing] young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sexual advances. . .[and] teach[ing] the importance of attaining self-sufficiency before engaging in sexual activity.” programs, exacerbate the gendered effects of unintended pregnancy on educational opportunities and achievement. The United States boasts second place in teenage pregnancy rates among developed countries, highlighting the endemic nature of this sex-based issue. According to the Centers for Disease Control and Prevention, comprehensive sex education programs are effective at reducing unintended pregnancy and STI/HIV rates among adolescents, whereas “no conclusions could be drawn on the effectiveness of group-based abstinence education.” In fact, a national study on abstinence-only block grants found that they had perverse effects in conservative states, increasing adolescent pregnancy rates despite these states’ already-heightened rates of teen pregnancy.

Moreover, sex education is not just about preventing pregnancy; sex education applies a multifaceted approach to sexual health and family planning. Providing students with this information encourages health-conscious decision-making that, in turn, directly impacts students’ access to education. One example of this impact is the treatment of dysmenorrhea (period pain) in sex education curricula. Dysmenorrhea is a leading cause of short-term school absenteeism. Various birth control methods can significantly reduce or eliminate pain associated with menses, yet one study of Hispanic adolescents reported that 38% of participants missed school at least once in the last three months due to dysmenorrhea. Conscientious sex education would likely reduce these figures: if young women receive medically accurate information and are empowered to make informed decisions around their sexual health it will improve their learning.

Comprehensive initiatives are well-aligned with Title IX’s goals because they tackle an array of social phenomena affecting gender inequality in education through well-researched pedagogy. These programs tend to address prevalent issues such as intimate partner violence and include discussion on the sexual health of LGBTQ+ students. Failing to abolish inaccurate sex education directly contradicts the legislative intent of Title IX because it denies women the benefits of evidence-based sex education and is premised on harmful social dynamics, such as the notion that women are responsible for controlling male sexuality.

Though there is no federal statute mandating sex education, legislative silence does not empower educational institutions to misinform or mislead their students. Nonetheless, of the twenty-nine states and the District of Columbia that require sex education in schools, as of 2018, only twenty required it to be “medically, factually, and scientifically accurate.” All states except California have accepted abstinence-only block funds at some point—this represents an area ripe for significant progress in sex education. In establishing sex education programs, state and school officials should ensure that students receive accurate information. Misinformation related to sexual health—particularly related to family planning options—inherently discriminates against female students’ educational opportunities.

Abstinence-only initiatives rely upon inherently gender-discriminatory notions of sexuality. The curriculum is known for gender stereotyping, including a presumption that women are less driven by sexual desire and, thus, are responsible for controlling male sexuality. Additionally, the focus on waiting until marriage assumes that “[heterosexual] couples will marry young and the woman will become a family caretaker, principally supported by her husband.” Thus, there is a clear discriminatory impact as well as a discriminatory intent in abstinence-only regimes, since they are premised upon different roles for men and women in ensuring pre-marital abstinence and post-marital family planning.

III.  Tension Between Administrative Regulations and Legislative Basis

Despite a clear legislative intent to correct for gender-based educational disparities through the passage of Title IX, administrative regulations are interpreted to preempt claims of gender-based discrimination in sex education. In setting out the regulatory framework for Title IX, the Secretary of Education included a provision in 34 C.F.R. § 106.42 stating, “[n]othing in this regulation shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.” The direct contradiction between this provision and Title IX’s overarching goal of eliminating sex-based discrimination in education presents an issue of statutory and regulatory interpretation with a very tangible impact on young people’s education.

The language and framework establishing Title IX suggests an impressive push toward gender equality. Title IX’s relatively far-reaching language states that “[n]o person in the United States shall . . . be . . . subjected to discrimination under any education program or activity [emphasis added]” receiving federal funding. The statute provides enumerated exceptions, which may favor a more generous interpretation of the statute’s reach. Though the framework preempts sex-discrimination claims related to abortion rights under § 1688, this provision does not extend to all reproductive rights. As a result, construing this provision as prohibiting broader discussion of sexual health impacting educational outcomes curtails Title IX’s legislatively determined reach. Lastly, Title IX’s framework supports a more expansive understanding of Title IX protections given the relatively sharp limitation it places upon the federal agency controlling federal financial assistance, requiring that the issuance of rules, regulations, or orders be “consistent with achievement of the objectives of the statute.”

The Secretary of Education’s Textbooks and Curricular Material exception under 34 C.F.R. § 106.42 is in direct opposition to the relatively expansive language, far-reaching structure, and constraint on executive discretion that the legislature ascribed to Title IX. The exception bears no relation to actual provisions in the statute enacting Title IX and does not further the goal of eliminating sex discrimination in education.

Professors Deborah Brake and Joanna Grossman suggest that the exclusion of educational material from Title IX was an attempt to avoid thorny First Amendment issues associated with limiting the academic freedom of educational content. However, the administrative state’s push against extending Title IX protections to the quality of educational materials does not prohibit nor compel a particular form of speech; it merely holds educational institutions accountable for providing well-researched information to their students. Regardless, requiring evidence-based sexual health information neither imposes nor prohibits a particular set of curricular materials. It merely suggests that abstinence-encouraging programs must include accurate, representative facts regarding adolescent sexual health.

The exclusion of educational content from Title IX protections is at odds with the far-reaching protections guiding legislative intent in Title IX’s passage. It should be the role of courts to determine whether such legislatively imposed requirements for speech are permissible by applying the relevant legal test, rather than having an administrative agency enact sweeping regulations that effectively deny legislatively intended protections. Courts examining this issue must also consider separation-of-powers issues that arise when appointment-based administrative agencies can apply such arbitrary and troubling modifications to democratically created legislation.

When administrative regulations are at odds with their underlying statutory basis, finding “the law” is a developing and murky area of interpretation with unclear standards guiding the courts. In the case of Title IX protections, Professor Kevin Stack’s theory of regulatory interpretation would require agencies to interpret statutes purposively, which may adequately balance legislative intent, separation-of-powers interests, and administrative enforcement of the statute. This theory would require agencies to first identify the purpose of a statute and then select a course of action that best carries forward these purposes within the means permitted under the statute. Following this interpretive scheme, an agency is unlikely to approve of discriminatory educational programming as exists today.

IV.  Litigating for Non-Discriminatory Sex Education Programs

Literature in policy studies suggests that bureaucratic structures governing education reform are particularly prone to regulatory capture and cycles of band-aid solutions. Discarding 34 C.F.R. § 106.42’s restriction on curricular material in Title IX may provide an external check on this cyclical pattern of reform. The arena of sex education—with millions of dollars in block grants at stake, influential and well-funded interest groups benefitting from these grants, and an impacted population unfamiliar with its legal rights—may be particularly susceptible to these institutional failures. A judicially proposed solution could break the cycle of superficial reform and pull sex education curricula in a direction that abides by the protections offered under Title IX.

Given the current lack of protection against discriminatory sex education, state and local policymakers wield considerable discretion in designing curricula. Meanwhile, federal lawmakers fail to condemn and abrogate faulty sex education initiatives, suggesting that abstinence-only education will not be going away any time soon. Between 1998 and 2017, over two billion taxpayer dollars were allocated toward abstinence-only programs in the United States despite their marked inefficacy; this figure does not account for funding allocated toward sexual health initiatives abroad that fall under this umbrella. Though federal funding for abstinence-only education declined between 2009 and 2010, it subsequently increased in 2012 and 2016. The Trump administration attempted to eliminate funding for evidence-based programs in favor of abstinence-only programs on at least two occasions. Its administrative appointees regularly disregarded federal court mandates around funding allocation arising under alternative legal theories. The Biden administration’s FY22 proposed budget allocated over 100 million dollars toward teen pregnancy prevention programs, but, disappointingly, has also budgeted thirty-five million dollars toward abstinence-only programs.

Abstinence-only supporters justify their position by arguing that these programs merely emphasize sexual risk avoidance. Critics note the importance of informed decision-making in adolescent sexual health and point to an abundance of evidence that abstinence-only programs do not work—if anything, misinformation from abstinence-only education results in sexual risk proclivity, not avoidance. The debate becomes increasingly relevant as the right to abortion is under threat; we cannot lose sight of the intersectional and all-encompassing nature of the fight for gender equality.

In light of the discriminatory intent and impact of faulty sexual education, courts should reconsider the regulatory restriction imposed on Title IX that renders the statute inapplicable to textbooks and curricula, particularly in the context of sex education programs because the programs directly encourage erroneous and sex-discriminatory assumptions while producing differential outcomes on the basis of sex. Advocates should reconsider Title IX as an avenue for securing non-discriminatory sex education given the tension between its statutory and regulatory regimes, while paying special attention to the procedural benefits and forms of relief afforded to litigants under Title IX to ensure that federal court rulings are substantively enforced.

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Danny Moreno is a Topic Access & Recruitment Editor of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. They received their B.A. from the University of Chicago.

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Featured photo: wired_gr, School Lockers.

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