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Did Critics of Programs for Women Win at Tulane?

University agrees to review whether any programs or scholarships discriminate illegally against men, but legal experts say programs reserved for women are legal.

January 14, 2019
 
Newcomb College Institute of Tulane

Conservative websites this weekend announced what they said was a major victory in the battle against discrimination against men in higher education.

"Female Lawyer Gets Tulane University to Stop Discriminating Against Men" was the headline on PJ Media. The article says, "Tulane University has agreed to stop financially discriminating against male students in an unprecedented response to a Title IX complaint made against the school." Mark J. Perry, a professor at the University of Michigan at Flint who has filed many complaints against colleges that maintain scholarships or programs for women, proclaimed victory on the website of the American Enterprise Institute. He sent an email to reporters about this win against "Tulane University’s ongoing, systematic and illegal gender discrimination."

But Tulane officials and other experts on higher education law suggest that what the university has committed itself to is only to review various programs to make sure that they don't discriminate against men, and to make changes if needed. And many legal experts say that there is no evidence -- as the complaint against Tulane suggests -- that having some programs for women is inherently illegal under federal antibias laws.

Some critics of scholarships and programs for women have been filing complaints against a number of colleges and universities, in some cases prompting changes. In 2016, Michigan State University, following a complaint from Perry, closed a lounge that was for women only. This year, the University of Minnesota-Twin Cities agreed to open up several scholarships that had been only for women so that they could be awarded to men as well.

In the Tulane case, the university reached an agreement with the Education Department's Office for Civil Rights to resolve a complaint before OCR had made a determination in the case. Under the agreement, Tulane will review programs to assure that male students do not face illegal discrimination with regard to financial aid or educational programs, and will report on any needed changes. The university also pledged to provide training for administrators on requirements of antibias laws, including prohibitions on discrimination against male students.

The programs are all part of the Newcomb College Institute, which grew out Newcomb College, which was a women's college affiliated with Tulane and over time was merged into the university.

The agreement names a number of scholarships and mentoring programs or organizations for women at Tulane -- scholarships and programs that were the basis of the complaint filed against the university. But Tulane did not in the agreement pledge to change any of the programs, only to report to OCR if it does so, and on the university's compliance with antibias laws.

A spokesman for Tulane noted that the agreement with OCR did not involve any admission of wrongdoing by the university. Further, he said that Tulane would continue to abide by 1975 guidance from the Education Department about how to administer scholarships that had been created specifically for either men or women (the guidance is written based on the assumption that the former is the case): "If 50 students are selected by a university to receive financial assistance, the students should be ranked in the order in which they are to receive awards … The list should then be given to the financial aid office which may match the students to the scholarships and other aid available, whether sex-restricted or not. However, if after the first 25 students have been matched with funds, the financial aid office runs out of non-restrictive funds and is left with only funds designated for men, these funds must be awarded without regard to sex and not solely to men unless only men are left on the list. If both men and women remain on the list, the university must locate additional funding for the women or cease to give awards at that point."

The spokesman said that "Tulane’s financial aid office administers donor-restricted institutional scholarships restricted based on sex in a manner consistent with this guidance, and going forward, will continue to administer such donor-restricted funds in this way."

Tulane's explanation reflects the reality that the scholarships involved are relatively few in number compared to the university's overall efforts to provide financial aid for students. For example, one of the challenged scholarships is "bestowed upon a current second-year woman from an under-represented group at Tulane University who has distinguished herself through involvement with the Newcomb College Institute, an engaged pursuit of learning, and contribution to the greater New Orleans community. The recipient of the award will receive $250; this one-time cash award can be used to enhance the recipient's education experience at Tulane."

Adaku Onyeka-Crawford, senior counsel for education at the National Women's Law Center, said that "the agreement doesn't say that they are going to end these programs." Onyeka-Crawford said that she was not familiar with Tulane's discussions with the Education Department, but that it is common for colleges to reach agreements like this to avoid long investigations.

Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston Law Center and author of several books about higher education law, said he saw nothing illegal or improper in what Tulane has been doing. While women may be a majority of undergraduates, he said, evidence is widespread of discrimination faced by women at all levels of education. Programs for women "are necessary" in this environment, he said, adding that it was also important to look at "the totality of programs" at Tulane, an examination that would show a small number of programs to help women amid a much larger group of programs for everyone.

Olivas called complaints filed over programs for women "a dog whistle to create the impression that men are discriminated against."

Peter McDonough, vice president and general counsel of the American Council on Education, said that many colleges have programs such as Tulane's and that they are (within certain limits) legal. In some cases, however, he said via email, it may be important for colleges to consider whether their demographics have changed and whether programs are needed for members of particular groups.

"No one’s intending to violate the law," he said. "But staying on top of what’s legal and what’s questionable can be hard. The facts really matter. What’s more, these facts change over time. Twenty years ago a school may have enrolled a class that was 70 percent male, yet today finds itself with women making up 70 percent of its freshmen. Ten years ago, perhaps there were no men interested in a noon yoga class, and today there are. Changes like these may be good reasons to take a look at how some things are structured, described and done."

He said such reviews go on all the time, he said.

The problem about publicity over the complaint about Tulane, he said, is that it may discourage colleges from keeping programs that are legal. "We would only be concerned if a misimpression developed," McDonough said. "It would be worrisome if people came to believe that any college program or activity that is more attractive to women, or designed to attract women, is illegal. That is not the case."

Perry, via email, said that he believed Tulane would be forced by the agreement to abandon the programs and scholarships cited. He said that he believed the agreement "seems to be a significant legal precedent."

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