Does Michigan State's Women-Only Study Lounge Violate Title IX?

The Washington Post reported this week on the controversial decision by Michigan State University to lift the women-only designation that had formerly applied to a study lounge in the student union. Though the timing coincides with public critique of the lounge by a professor from the University of Michigan, MSU contends that it had already decided to remove the women-only designation as a means to comply with Title IX. Female and male MSU students alike have reportedly responded to the decision by petitioning the university to reinstate the women-only space.

Putting aside the question of whether a women only lounge is a helpful and/or necessary, I have to say that I agree with MSU's assessment that a study lounge designated for women only is a violation of Title IX.  I furthermore disagree with the university's apparent belief that adding a comparable lounge for men -- an idea that MSU rejected -- would have cured the legal problem.

Title IX by its terms bans sex discrimination in federally funded institutions. Technically, the only time it is permissible to treat students differently on the basis of sex is when there is an exception written in to the statute or into the regulations. . In terms of facilities, these areas include housing, toilets, bathrooms and housing facilities, where "separate but equal" treatment is permissible (34 C.F.R. 106.32 & 106.33). In terms of programs, it is permissible for colleges and universities to separate men and women in athletics, some physical education classes that involve contact sports, and choruses. Id. at 106.34.  Admissions of private undergrad institutions is not covered by Title IX which is how women's colleges can legally exist. But this exemption does not pertain to public schools like Michigan State, and even if it did, it does not give rise to a right to impose differential treatment on male and female students once they are admitted. Id. at 106.15. Elementary and secondary schools have a little more leeway to offer single-sex education in some circumstances, but this is not replicated for higher education outside the context of admissions. Id. at 106.34. Finally, there is a provision that allows a university to administer scholarships and awards that are designated for only one sex, so long as it "otherwise makes available reasonable opportunities for similar [opportunities] for members of the other sex."  Id. at 106.37.

And that's it. Those are the exceptions to the default rule of equal treatment. So in the absence of a provision governing women's-only or gender-segregated study lounges, they are technically not allowed.

That said, students are justified in insisting on space to study that is free from interruption by other students who want to ask them out -- what appears to be the chief concern of petitioning students at MSU.  One way to accomplish this would be for MSU to designate the lounge as a "quiet" lounge and prohibit all people from interrupting studiers, whether to ask them out or for other reasons that would presumably be equally intrusive. Or MSU could permit students to sign out the lounge (or parts of it) for use by study groups, which would permit a self-assembled group of female students to use the lounge at their designated time. A study lounge within a women's dormitory or on an all-women's floor would also be OK under the exception for housing.  Finally, I'd argue that it would also be permissible to designate space for a gender-focused student group, such as the Society of Women Engineers.  Though men could not legally be excluded from the lounge if they really wanted to make a big deal about it, a sign on the door declaring the space to be "SWE headquarters" would probably work to divert most male engineers to another lounge as a matter of respect and/or disinterest.