Honey or Vinegar?

To help boys and men in the long run, better to win hearts and minds than court cases

Image from Kent Wang

In the last few years, there’s been an increase in the number of sex discrimination lawsuits brought on behalf of boys or men. Many have succeeded. Particularly in areas like higher education, where in the grand scheme of things women are now at a clear advantage to men, more legal wins seem likely.

To be honest, I’m a bit uncomfortable with turning to the law here. Even if the cases are won, hearts and minds may not be. Changes in policy may be made, but perhaps with great reluctance and likely ongoing cultural resistance.

There may be some cases where institutional leaders would like to change tack, but fear doing so will invite the wrath of their progressive colleagues. This group would welcome the human shield that a lawsuit could provide. I just don’t know how big this group is. It is certainly true that the women’s movement made very effective use of civil rights law. As a general principle, it is also obviously bad for institutions to break the law.

But in the long run, the more important goal is not to force institutions to take up the cause of boys or men, but to persuade them that they ought to.

Honey rather than vinegar to catch flies, and all that.

The Lawman Cometh

Here are a three recent examples of Title IX complaints that have triggered a formal investigation by the Department of Education’s Office of Civil Rights (OCR).

The first is a complaint against Stanford University listing 27 university programs that allegedly broke the law against sex discrimination. The OCR is investigating five of these: Stanford's Women in Business, Women in Stanford Law, Stanford Women in Design, Stanford Society of Women Engineers and the Gabilan Provost's Discretionary Fund.

As Kim Elsesser writes in Forbes:

[The complainants] claimed that the four organizations are illegal because their names imply they exclude men, all their members are women, and Stanford offers no similar support programs for men. Their beef with the provost's fund is that it supports the hiring and retention of female faculty, but not male faculty, in the sciences and engineering.

Stanford was obliged by the OCR to provide a response to the claim with regard to the five listed programs, by November 28th. Now we’re waiting for OCR to review that evidence and make a ruling.

The second example is a claim against New York Law School (NYLS) brought by Prof Mark Perry, and also now under investigation by OCR. Perry is the leading activist on this legal front, and an emeritus scholar at AEI and the University of Michigan in Flint. He told me he has more than active 700 claims against college and universities for discriminating against boys and men.

The complaint against NYLS is about a women-only program established by none other than Judge Judy, who attended the School (as did her daughter and granddaughter). Here is how the School describes the program:

The Judge Judy Sheindlin ’65 Honors Scholars Program creates substantial new opportunities for women to attend law school and become leaders in the legal profession. This program is set to begin with the fall 2022 entering class, and is made possible by a historic gift from television icon and NYLS alumna Judge Judy Sheindlin ’65. Scholars will receive a full-tuition scholarship, a book stipend, and a 1L summer employment fellowship. The full-tuition scholarship is renewable through graduation.

Perry is astonished that in a law school of all places, nobody seems to have thought that this might constitute illegal sex discrimination.

A third example is Perry’s series of complaints against the Clare Booth Luce scholarships which offer support women in STEM subjects, at the undergraduate, graduate and faculty levels. So far more than $200 million has been provided to 3,000 scholarship recipients at more than 200 colleges. Although the money is private, and so not subject to Title IX sex discrimination law, the scholarships are awarded and administered by colleges, which is what, in Perry’s view, makes them illegal. He is now filed a complaint against every college announcing the scholarship.

Devils, details

Just in case you hadn’t noticed, I’m not a legal scholar. So how exactly civil rights law is worked out here is unclear to me. I will note however, that Perry is winning a lot cases. Of the 300 or so of his cases looked at by OCR, about 200 have been resolved in his favor.

But I’d make a few observations. The details of what and who is being funded seem to matter here, at least in substantive even if not legal terms. A goal of improving the share of clearly underrepresented groups in certain areas seems reasonable to me; then the argument can be made that the program is actually combating discrimination.

So it’s a problem when the group is not clearly underrepresented. Let’s go back to the Stanford case. The programs being reviewed by OCR relate to business, law, engineering, science and design. What are the facts about female representation in those fields at Stanford?

• Physical Sciences. Share of women undergraduate students = 50%. Share of Master’s students = 50%.

• Engineering. Share of women undergraduate students = 50%. Share of Master’s students = 37%.

• Law. Half (47%) of Stanford Law School students are women. So are half of the School’s faculty (48%) according to the School’s website (but only 35% according to this University report, so I’m not sure of the precise data here).

• Business. Women account for 44% of the the MBA Class of 2023.

• Design. I couldn’t easily find a gender breakdown of students taking classes at the Design School (or ““d.school”, as they call it). But based on my examination of the staff directory, the faculty at least look to be evenly balanced in terms of gender. Here’s a nice pic of the d.school team:

Stanford Design School fellows

Overall, then, it is hard to make the argument that women are underrepresented in the fields of study covered by the Stanford programs that form the basis for the case being examined by the Education Department.

It’s a different story at the Faculty level, however: women account for one in four or fewer of the professors in engineering, law and the physical sciences. And of course, this doesn’t mean that gender equality has been achieved at every level in these professions after graduation. Women only account for one in four partners in law firms, and only 14% of engineers, for example. So if these programs are working primarily with alumni networks, there’s still a case to be made that they are helping women overcome disadvantages in their later careers. In other words, you can argue the case about women’s underrepresentation either way, depending in large part on whether the focus is on students, or on faculty and alumni.

How about the NYLS case? Again, there is no evidence of female under-representation. In fact, women now account for 62% of the students at the college, a fact that Anthony W. Crowell, NYLS Dean and President noted when Judge Judy’s gift was announced:

“Her gift is a profound commitment to women aspiring to attend law school, and will ensure they have the opportunity to gain a first-class education and become leaders throughout the profession. I am proud that women are now the majority of our student body, and they have an extraordinary role model and champion in Judge Sheindlin. I look forward to working with her, Nicole, and Sarah, to support our women students and giving them the tools to succeed.”

But. . .hurting women doesn’t help men

My instinct is nonetheless that attacking programs that help women is not going to be generally helpful to the cause of men. I think it is better to argue constructively to build up similar programs to help men in fields where they are underrepresented or seem to be struggling the most.

If I was a college President facing these claims, I’d want to say: “But look at these programs we have for men. Overall we are not discriminating either way, just helping most where needed”.

For a start, I’d set up a Men’s Resource Center to help male students with mental health problems, study skills and career advice. Just like the one—the only one in the nation I think—at the University of Oregon.

The same approach could have been taken at Michigan State, where a women-only study space dating back to 1925 went co-ed after Perry brought a Title IX complaint. Instead, I think the administration should have re-opened the old study space for men.

I’d also create and support programs for men in fields of study where they are underrepresented. At Stanford, for example, only 10% of the undergraduate English students are men. So how about a Stanford Men in English Program? Only 30% of the Psychology students are male. So how about a Stanford Men in Psychology Program? As well as fairness arguments, there are broader social welfare arguments for getting more men into HEAL professions, as I’ve argued in my book Of Boys and Men, and in a previous newsletter.

In other words, rather than doing less for women, let’s do more for men.

I want male-only scholarships in fields where men are underrepresented, and needed - for example in education. I’m worried that these too will be struck down or deemed illegal. What’s the law here? If a college offered equally generous scholarships for women in computer science, and for men in nursing, would they both be illegal, or would the presence of one justify the other? Any good Title IX experts out there?

I’m conflicted

One of my concerns is that striking down women’s programs may not lead to those resources being shared with men. They could either disappear altogether, or institutions will find other, law-proof ways to spend them on women. Let’s say, for example, that Perry’s case against the Clare Booth Luce scholarships was successful. What would happen next? I doubt very much that the Foundation would simply open the scholarships up on equal terms to men. Here’s their mission for the program (with my emphasis added):

Clare Boothe Luce (1903-1987) was a trailblazer in the arts, journalism and public affairs. Through her bequest, which provides support to women in STEM fields in which they are underrepresented, the Henry Luce Foundation has become the nation’s single largest private source of funding in higher education for women in science, mathematics and engineering. We advance work to close the gender gap in STEM disciplines and across leadership roles in higher education.

Rather than changing its whole mission, it seems likely to me that the Foundation would instead look for ways to deliver the scholarships directly to female recipients, rather than through higher education institutions, so avoiding the legal obstacles.

But I don’t know, as a empirical matter, how often this happens. I reached out to Mark Perry to discuss his whole approach and he was kind enough to share some thoughts, as well as more detail on some of the cases I’ve discussed here. Specifically, I wanted to know how these cases help men. He pointed out that in most cases, institutions comply by opening up these programs to men as well as women. I asked him to state his position by email. Here’s what he sent me:

My civil rights efforts challenging illegal discrimination against men in higher education have produced some very favorable outcomes. Based on more than 700 federal civil rights complaints that I have filed to date, there have been hundreds of scholarships, fellowships, programs, and awards that were previously restricted to only females in violation of Title IX that have now been opened to male students and faculty. Even in the relatively few cases when schools have terminated female-only programs rather than open them to males, those outcomes have still had the positive effect of bringing greater awareness among college administrators that discrimination against men is illegal and won’t be tolerated by the Office for Civil Rights.

This is a strong argument. And I’ve been at least partly persuaded that these lawsuits, so long as they are conducted in a respectful and professional manner (which Perry does, but not all) have a role to play.

But my fear is still that in an area which is already too conflictual and too zero-sum, a legal recourse won’t help with the persuasive task. So as you can probably tell, I’m still a bit conflicted on this one myself. Would love to hear your views.