Politics in Sports

DATE DOWNLOADED: Wed Dec 16 17:14:15 2020 SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed. Susan Ware. Game, Set, Match: Billie Jean King and the Revolution in Women's Sports (2011).

ALWD 6th ed. Ware, S. Game, Set, Match: Billie Jean King & the Revolution in Women's Sports (2011).

APA 7th ed. Ware, S. (2011). Game, Set, Match: Billie Jean King and the Revolution in Women's Sports. .

Chicago 7th ed. Ware Susan. Game, Set, Match: Billie Jean King and the Revolution in Women's Sports. , .

McGill Guide 9th ed. Susan Ware, Game, Set, Match: Billie Jean King & the Revolution in Women's Sports (: ., 2011)

AGLC 4th ed. Susan Ware, Game, Set, Match: Billie Jean King and the Revolution in Women's Sports (., 2011)

MLA 8th ed. Ware, Susan. Game, Set, Match: Billie Jean King and the Revolution in Women's Sports. , . HeinOnline.

OSCOLA 4th ed. Ware, Susan. Game, Set, Match: Billie Jean King and the Revolution in Women's Sports. , .

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at

https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text.

Chap ter Tw

o In t he Me

antim e

T h e E a r ly D a

y s o f T i t l e I X

hirty years ater the Bobby Riggs match, Billie Jean King dramatically re- called her feelings about its larger historical signiicance for reporter Selena Roberts. “My job in the match, and I remember this being very clear, was to change the hearts and minds of people to match the legislation of Title IX and what we were trying to do with the women’s movement. It was to vali- date it, to celebrate it, and to get going toward changing a world where we had equality for both genders.” King had voiced similar sentiments on the twenty- ith anniversary of the match in 1998: “Title IX had just passed, and I would see people [looking] for an excuse to backtrack. I wanted to change the hearts and minds of people to match the legislation we had just goten in place.” Recently she upped the ante by claiming that she had helped get Title IX passed in the irst place.1 Billie Jean King’s memory is playing tricks on her. Without challeng- ing the larger signiicance of the match for either the emerging feminist movement or the struggle for gender equity in sports, a more historically grounded look at the early days of Title IX suggests that public awareness

44 T h e E a r ly D ay s o f T i t l e I X

of the law in general and its impact on women’s sports in particular was not necessarily as widespread in the fall of 1973 as her retrospective memories claimed. Passed without fanfare a litle more than a year earlier, Title IX was never mentioned by name in all the voluminous coverage the match received. When Billie beat Bobby, she wasn’t carrying the banner for Title IX precisely because the law was not yet associated with women’s sports in the popular mind. hat changed soon ater, in part because of her role in raising the nation’s consciousness where women’s sports were concerned. Just as important an inluence on the early days of Title IX were the actions of a small band of Washington insiders — bureaucrats, activists, and lobby- ists — who gradually realized that this litle- noticed general education law would have its most profound impact on an area no one had anticipated: sports. Even if Billie Jean King exaggerated her role in the passage of Title IX, she always grasped its larger signiicance: “Oh, my God, it’s the third most important piece of legislation in the 20th century. here was the vote, civil rights in the ’60s, and Title IX in the ’70s.” he events leading up to Title IX’s passage in 1972, and the struggle ever since to igure out how to imple- ment the law fairly, demonstrate how athletics became part of the broader political and cultural struggles of contemporary American life. Title IX also provides a textbook case of the diiculties — and the rewards — of puting abstract principles of liberal feminism such as equal opportunity and gen- der equity into concrete, everyday practice. From the start the law sparked high expectations as well as conlict and ambiguity, which continue to this day. So too does the revolution in women’s sports that Title IX helped to set in motion.2

The legisl ation that Congresswoman Edith Green correctly pre- dicted would be “the most revolutionary thing in higher education in the 1970s” had its roots in the civil rights legislation of the 1960s. Title IX was modeled directly on Title VI of the Civil Rights Act of 1964, which prohib- ited discrimination against the beneiciaries of programs receiving federal money on the basis of race, color, and national origin, but not sex. he bet- ter known Title VII outlawed discrimination in employment on the basis of race, color, national origin, and sex. As the story is oten told, the sex provi- sion had been added by Howard Smith, a conservative Southern represen- tative, who hoped to undercut support for federal civil rights legislation with what he saw as a frivolous amendment. Women members of Congress

45 T h e E a r ly D ay s o f T i t l e I X

such as Representative Martha Griiths of Michigan did not see the issue of sex discrimination as frivolous at all and had been planning to introduce their own amendment to make sure it was covered in the law. For both the right and wrong reasons, it passed, giving women an important legal tool to ight sex discrimination in employment.3 Unfortunately neither Title VI nor Title VII covered sex discrimination in educational institutions, a gap Title IX would be designed to plug. In the meantime, a budding feminist activist named Bernice Resnick Sand- ler found a creative way to extend federal oversight into higher education. In 1965 President Lyndon Johnson had signed Executive Order 11246, which forbid discrimination on the basis of race in employment practices by federal contractors and mandated airmative action plans to address past discrimination; in 1967 this executive order was amended to include sex discrimination. While researching federal antidiscrimination laws in 1969, Sandler noticed a footnote about this amendment and the proverbial light bulb went of in her head. “Even though I was alone,” she recalled, “I shrieked aloud with my discovery: I had made the connection that since most universities and colleges had federal contracts they were forbidden from discriminating in employment on the basis of sex.” When she con- tacted the director of the Oice of Federal Contract Compliance in the De- partment of Labor, he conirmed her interpretation.4 It is impossible to tell the story of the passage of Title IX without giving Bunny (as she is universally known) Sandler a starring role as the “god- mother of Title IX.” Sandler’s personal introduction to sex discrimination came in 1969 when, having inished her doctorate at the University of Maryland, she was not considered for a full- time position in the depart- ment where she was already teaching because, as a colleague told her, “Let’s face it. You come on too strong for a woman.” To her surprise and chagrin, no laws prohibited sex discrimination in education, that is, until she made the connection between Johnson’s executive order and university contracts. Based on her discovery, the Women’s Equity Action League (WEAL) iled a class action complaint in January 1970 against all the colleges and universi- ties in the country, and the University of Maryland in particular, charging “an industry- wide patern” of discrimination against women, especially in admissions, hiring, promotions, and salary discrepancies. he material she collected in support of the suit, especially the documentation of employ- ment discrimination on campus, circulated widely, thanks to a Xerox ma- chine made available by an ally at the Ford Foundation. (At the time most

46 T h e E a r ly D ay s o f T i t l e I X

information circulated in mimeographed form; a fancy Xerox machine was a real luxury for most organizations.) Meanwhile activists pressed the Departments of Labor and Health, Education and Welfare to enforce the regulation.5 It is useful to pause to remember how new the topic of sex discrimina- tion was in 1970, especially in education. he words had just entered the lexicon with the Civil Rights Act of 1964; phrases like sexism and sexual harassment were not even in common usage. Many of the things we would today call sex discrimination, such as women needing higher grades and test scores for admitance to colleges or professional schools arbitrarily capping the percentage of women, were simply accepted as the way things were. In fact, Bunny Sandler observed, “he issue of sex discrimination in education was so new that I received many leters from women and men asking me if it was true that such discrimination existed, and if so, could I send them proof.”6 Representative Edith Green, a Republican member of Congress from Oregon, was one who took note. A leading education specialist and, not co- incidentally, a member of WEAL, Green was planning to hold Congressio- nal hearings on this topic; Sandler helped her compile a list of witnesses for the legislation Green planned to introduce. In June and July of 1970 Green held seven days of hearings on the barriers that women faced in higher education and then hired Sandler to edit the writen record of the hear- ings. he resulting two- volume, 1,300- page document, which included both testimony and supporting material, provided convincing refutation of the view commonly held, especially by leaders in higher education, that there was no discrimination in education, or that if there was, it wasn’t really a problem. Showing the political savvy of the emerging feminist network in Washington, D.C., Edith Green received permission to reprint 6,000 copies of the report, and Sandler helped her distribute them to educational leaders and the press, as well as each member of Congress. As Sandler concluded, “he hearings probably did more than anything else to make sex discrimi- nation in education a legitimate issue.”7 he 1970 hearings set in motion a chain of legislative events that culmi- nated two years later in the passage of Title IX. While Green’s original plan had been to amend the Civil Rights Act of 1964 to cover education, she realized such a strategy might expose the still- new law to other, potentially crippling amendments, so she concentrated instead on developing separate legislation to accomplish her purpose. In the spring and summer of 1971, she

47 T h e E a r ly D ay s o f T i t l e I X

held another round of Congressional hearings. Green’s drat legislation was one of several bills introduced in the House. Around the same time, Sena- tor Birch Bayh of Indiana, a good friend of the emerging women’s move- ment and a strong supporter of the Equal Rights Amendment then under consideration, drated similar legislation in the Senate. As the bills worked their way through the legislative process, private colleges and universities lobbied successfully to exempt undergraduate admissions from coverage. Another exemption covered military schools and the service academies; a third allowed private men’s and women’s colleges to remain single- sex if they chose.8 As the inal bill neared passage in the spring of 1972, Sandler and other representatives of women’s groups in Washington ofered to lobby on its behalf, but Representative Green warned them of, reminding them that “the less that people knew about the bill, the beter its chances were for pas- sage.” But it is wrong to imply that the provision on sex discrimination only slipped through because no one knew it was there. he Chronicle of Higher Education had taken note of the topic as early as July 1970,9 and in August of 1971 the New York Times weighed in editorially against the inclusion of the sex discrimination provision, calling its potential impact, especially on ad- missions policies, “educationally unsound.”10 Still, in 1972 Title IX was seen as a fairly minor bill, one of Edith Green’s pet projects, certainly lacking the historical gravitas of the civil rights legislation of the 1960s. hat view would soon change, thanks to athletics. he National Collegiate Athletic Association (NCAA) later tried to claim that Congress had not intended to include athletics under Title IX’s cover- age, but the record lacks any sustained discussion of the subject.11 Senator Bayh provided one of the few references during loor debate on August 6, 1971, when he said: “I do not read this as requiring integration of dormito- ries between the sexes, nor do I feel it mandates the desegregation of foot- ball ields. What we are trying to do is provide equal access for women and men students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football involved. We are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be desegregated.” On the occasion of the thirtieth an- niversary of the passage of the law, Representative Patsy Mink, who con- sidered Title IX to be “one of my most signiicant eforts as a member of Congress,” reminded readers of the Congressional Record that athletics was not part of the original discussion. “Our primary goal was to open up edu-

48 T h e E a r ly D ay s o f T i t l e I X

cational opportunities for girls and women in academics,” adding that the most controversial issue at the time was the application of Title IX to ad- mission policies.12 Ater the inal diferences were ironed out in a Senate- House conference commitee, the Education Amendments Act containing Title IX was ap- proved by the Congress on June 8, 1972, and signed by President Nixon on June 23. In addition to the sex discrimination provision, the $19 billion bill ofered aid to community colleges and career education programs and initiated a student grant program for low- and middle- income students known as Pell Grants. Ironically, Edith Green voted against the very law that she had worked so hard to crat, disagreeing with a provision on the distribution of student aid. he passage of Title IX was not the only event in Washington that month that would have major historical consequences. In a further irony, Nixon signed the bill just one week ater the burglary in the Watergate complex that would end his presidency two years later.13 he key provision of Title IX is a mere thirty- seven words long: “No per- son in the United States shall, on the basis of sex, be excluded from partici- pation in, be denied the beneits of, or be subjected to discrimination under any education program or activity receiving Federal inancial assistance.”14 Title IX applies to every aspect of education throughout an institution, not just a speciic program receiving federal funds; while it is now associated almost entirely with the issue of athletics, its scope also includes admis- sions, counseling, course oferings, inancial aid and scholarships, facilities and housing, health and insurance beneits, and discrimination based on marital or parental status. he penalty for noncompliance is the potential cut- of of all federal funds.15 Like many laws, Title IX’s mandate was let deliberately broad, in part because if lawmakers had made it more speciic, it likely would have lost the consensus of support necessary for passage. Bunny Sandler is convinced that many politicians voted for the bill because they were thinking, “Oh, this is nice for the ladies. Let’s do that for them,” without fully thinking through the implications of what they were supporting.16 Bella Abzug, who won election to Congress in 1970, seconded this view: “We put sex discrimination provisions into everything. here was no opposition. Who’d be against equal rights for women? So we just kept passing women’s rights legislation.”17 Given that athletics would become the “catalyst” that “pulled the other issues with it,” even though sports had hardly been mentioned in the legis-

49 T h e E a r ly D ay s o f T i t l e I X

lative history, it is important to reconstruct as fully as possible how and when this transformation took place. Borrowing an analogy from the Sen- ate Watergate hearings, which were unfolding as the Department of Health, Education and Welfare (HEW) struggled to determine the parameters of Title IX, Senator Howard Baker famously asked, “What did the President know and when did he know it?” A similar question can be asked about athletics: when did it dawn on people that Title IX would apply to physical education and athletics? More broadly, when did it become clear that Title IX had the potential to radically challenge the status quo of how schools structured and funded their athletic programs? Unlike Watergate, there is no conspiracy or smoking gun here, just a group of actors inside and out- side the government following the implications of this wide- ranging law to its logical conclusion: that some of the most glaring inequities in higher edu- cation were in the area of athletics and that legally they must be addressed.18 Because of the complexity of the issues and the controversies that sur- faced, it would be two years — not until June 1974 — before drat regulations were published, and another year — not until July 1975 — before they were oicially approved. he lack of regulations meant that there was basically no enforcement on the part of the federal government for the critical irst three years of the law’s existence, since HEW took the stand that it could not enforce the law until the regulations were writen and approved. Note, however, that the law itself was in force as of July 1, 1972, and during this interim period complaints were iled with HEW and lawsuits initiated based on the law.19 At irst oicials at HEW seemed to be moving forward with all deliberate speed. In late July, J. Stanley Potinger, head of its Oice for Civil Rights (OCR), wrote to representatives of various education advocacy groups in- viting them to informational meetings about Title IX the following week. he idea was to consult with them before regulations and administrative decisions were inalized and keep them apprised of major issues and prob- lems. Margaret Dunkle, recently hired by Sandler to be her assistant at the Project on the Status and Education of Women at the Association of American Colleges, atended the August 4, 1972, informational meeting. According to Dunkle’s notes (and she took very good notes), athletics was not prominently mentioned at the meeting. But it must have come up in passing, because less than a week later she was back in touch with the OCR with more information about the issue. Sharing examples of how interest in women’s athletics was already on the rise, she pointed out that women ac-

50 T h e E a r ly D ay s o f T i t l e I X

tivists were concerned that any “separate but equal” facilities be truly equal and asked that “special care should be taken to assure that any policy be sex- neutral both on its face and in practice.”20 Margaret Dunkle’s involvement in concerns regarding athletics so soon ater Title IX’s passage conirms that the issue was there from the start. What is missing is any foreboding of what a hot- ticket topic it would become. While it seems to have occurred to a few people (Bunny Sandler estimated no more than ten) that athletics would be covered, no one yet grasped Title IX’s potentially revolutionary impact. While sex discrimination in educa- tion was generally invisible, discrimination in sports was simply not on the radar. Even Sandler, who was in the thick of events, remembers thinking only that the law might mean a few more activities for girls at annual school ield days. As she later commented, “If those of us close to Title IX did not fully realize its impact, especially on sports, how could others have known what it would be?”21 In October 1972, HEW atorney Gwen Gregory began to grapple with how to apply Title IX to athletics. Like so many others before and ater, she began by seeing if it was possible to use the integration model developed for civil rights for the seemingly parallel issue of discrimination in sports. She quickly discarded that approach. (See chapter 5 for the implications of this lost moment.) Since women cannot “compete as a class with men,” they “would not be treated equally if forced to compete equally.” In other words, just opening all men’s teams to women — the equivalent of integra- tion — would mean litle since only the most exceptional female athlete would be able to qualify for a men’s team.22 Was the alternative, then, “separate but equal” teams for men and women? his concept was anathema to many activists because “separate but equal” was precisely the practice that civil rights legislation was designed to over- turn. If separate could never be equal when it came to race, why would it be any diferent for women in sports? And yet women’s sports were at such an embryonic stage of development that practically no one could envi- sion a playing ield where women and men competed equally. his conun- drum, which of course is the puzzle of modern feminism — how to provide equal opportunity for women while also recognizing their diferences from men — made the process of writing regulations for athletics extremely chal- lenging, even before male athletic leaders entered the picture claiming that equal participation opportunities for female athletes would bankrupt the existing system.

51 T h e E a r ly D ay s o f T i t l e I X

One way to simplify the sports question just a bit was to distinguish physical education classes, intramurals, and recreational activities from competitive athletic programs. Here HEW adopted the approach known as formal equality that it applied to the rest of Title IX and education: “men and women should be treated alike if they are similarly situated for purposes of the policy or practice that is being challenged.” With the exception of sex education classes (which were traditionally an uneasy part of the physical education program), instructional gym classes and other recreational op- portunities would no longer be strictly segregated by sex. Even this amount of athletic integration was controversial, however, especially among female physical education leaders who worried about girls being injured or bullied by rough boys in coeducational activities. hese gym teachers also worried about losing their jobs as programs were combined, a valid fear, as it turned out. While there were always some parents and administrators who did not like the idea of coed gym classes, this has in fact become the norm as a re- sult of Title IX.23 he question of competitive athletics was trickier. In an October 1972 memo to her boss, Gregory proposed a general statement to cover the ield: “As it appears that women cannot compete as a class with men in most ath- letics, such activities should be provided separately for men and women in most cases. However, if it can be shown by an institution that women are not limited by their physical ability from a particular sport, then and in that event, such institution may conduct the sport on a coeducational basis.” Potinger agreed, provided there were some references to speciic areas of equal treatment, such as incentives to participate, budgets proportionate to numbers on teams, equal access to facilities and support services, and athletic scholarships for both men and women.24 In general terms, therefore, several months ater the law’s passage, HEW had moved quickly toward staking out a stance on how Title IX would apply to athletics that was not too diferent from the inal regulations: make phys- ical education instruction coeducational, but in most cases keep competi- tive athletics teams separate for men and women accompanied by a com- mitment to more equitable access to opportunities and resources. But these tentative formulations remained strictly in- house, and therefore of no help at all to schools and institutions trying to igure out how the law applied to them. An early (perhaps the irst) mention in a general circulation magazine that Title IX might apply to athletics appeared in October 1972 in Ms. mag-

52 T h e E a r ly D ay s o f T i t l e I X

azine, which had debuted the previous winter. Under the header “How to Make Trouble: It’s Time for Equal Education,” NOW’s legislative vice president, Ann Scot (who probably had atended one of the informational meetings at HEW in August), proposed an airmative action plan to imple- ment Title IX in schools and on campuses that included a section on ath- letics. Under areas for review, she highlighted whether women were being denied the opportunity to participate in certain sports; what the per capita expenditures were per sex; and whether women received athletic schol- arships. Noting that “legislation lives or dies by how it is enforced,” Scot urged readers to contact HEW ’s Oice for Civil Rights and members of Congress about holding educational institutions accountable to the intent of Title IX.25 hen the forward momentum stopped. Regulations were said to be forthcoming, but the waiting stretched to months and eventually years. Anne Grant, coordinator of NOW’s Education Task Force, told Margaret Dunkle in January 1973 that she had heard Potinger was holding back on Title IX guidelines “because he wants to water- down athletic guidelines.” In February, Bunny Sandler updated Columbia law professor Ruth Bader Ginsburg that regulations were expected in March, which she said meant “April, May, June. . . .”26 In April, Dunkle, who was by now spending much of her time at the Project on the Status and Education of Women on the sports issue, reported to Bunny Sandler about an of- the- record meeting where she learned that the regulations would not be out until June, which she said meant September. As Dunkle said later that month in a speech to the American Association of Health, Physical Education and Recreation, “Perhaps all women athletes should be mountain climbers because the plight of women in sports programs is clearly an uphill struggle.”27 An important milestone in public awareness about discrimination in sport was a three- part Sports Illustrated series by Bil Gilbert and Nancy Wil- liamson called “Sport is Unfair to Women” that appeared in May and June 1973, four months before the Billie Jean King–Bobby Riggs match. Gilbert had goten interested in the subject as the father of three athletically in- clined daughters; faced with limited options in his community, he helped start an Amateur Athletic Union (AAU) track club for girls, which he had proiled in an earlier feature for the magazine. When he pitched the idea for a series on women and sport to a magazine not noted, then or now, for its coverage of women, “Editorial authorities were dubious to say the least,” he later recalled, but they inally gave him and his coauthor the go- ahead. he

53 T h e E a r ly D ay s o f T i t l e I X

irst article opened with this forthright — and oten quoted — statement: “here may be worse (more socially serious) forms of prejudice in the United States, but there is no sharper example of discrimination today than that which operates against girls and women who take part in competitive sports, wish to take part, or might wish to if society did not scorn such en- deavors.” One long- distance runner said opportunities were so limited that “most of us feel that being second- class citizens would be a great advance.”28 Originally Gilbert did not think Title IX would have a lot to do with the story, but the inal article mentioned it prominently, quoting Gwen Greg- ory as saying that guidelines would be issued by July 1973 (another deadline missed) and even giving the address of HEW to ile complaints. Appearing in the most popular sports magazine in the country, the series documented the gross disparities between men’s and women’s athletic programs across the country and helped to begin to spread the word that a new federal law mandated equitable treatment in athletics.29 By this point male athletic leaders and the National Collegiate Athletic Association had goten wind that the drat regulations were going to cover athletics. Why had it taken so long? Since athletics programs did not re- ceive federal funding, it simply had not occurred to many people that they would be included. Unlike the coverage of the events leading up to the pas- sage of the original law, there had been very litle public discussion in the New York Times, the Washington Post, or the Chronicle of Higher Education as the drating process went forward in the second half of 1972 and into the irst half of 1973. he irst mention of athletics being covered did not appear in the Chronicle until November 1973.30 Billie Jean King became a public player in the Title IX story around this time. Much in demand ater her successful demolition of Bobby Riggs in September, King put her sports celebrity to good use on Capitol Hill when she testiied before the Senate Subcommitee on Education on November 9, 1973. his appearance is probably what she remembered when she claimed to have lobbied for Title IX, but she actually spoke in favor of the Women’s Educational Equity Act of 1973 (WEEA), a bill sponsored by Senator Walter Mondale and Representative Patsy Mink. he legislation authorized grants to administrators and institutions to develop nonsexist curricula, personnel training programs, and vocational and career counseling, as well as to ex- pand and improve physical education programs for women. In other words, the WEEA was designed to fund projects that would implement the general goals of Title IX. Either way, King was a big hit, still fresh from what she jok-

54 T h e E a r ly D ay s o f T i t l e I X

ingly described to the awe- struck senators as “that match against Roberta Riggs the other day.”31 Billie Jean King’s testimony spoke less to the arcane details of the bill than to the general stereotypes and problems that women faced in sports. For example, she recalled “one morning at the breakfast table asking my father what a good sport would be for a woman, and right there now that I relect back, I realized I was already a product of the conditioning that goes on.” She spoke out against the tiny budgets allocated to women’s sports, questioning why the beneits of sports were basically denied to half the population — the female half. “By the time a girl reaches high school or col- lege she is oten well programmed to think of sports as extraneous,” she said in her prepared remarks, before adding spontaneously, “here are so many women who have potential to be athletically inclined, and they are just afraid, but if through these educational programs, if you do fund athletic programs and girls ind out it is fun, they ind out that they are accepted, in fact they are looked up to, this will change everything.” he Women’s Edu- cational Equity Act did not pass until August 1974, but Billie Jean King’s testimony certainly brought welcome atention to the issue as well as con- irmation of the momentum building around women’s sports.32 Title IX really burst onto the national scene in early 1974, when the NCAA launched a tremendous lobbying campaign against what it identiied as a grave threat to the status quo in college athletics. Up until that point, it had been mainly women’s groups and education advocacy organizations advis- ing HEW on the implementation of what was seen primarily as an education bill; now the NCAA aggressively inserted its point of view into the debate. he irst six months of 1974, therefore, were when Title IX stopped being a general education law known mainly to Washington insiders and began to build a national reputation, pro and con, as “the sports law.” he National Collegiate Athletic Association, established in 1905, had long been the dominant organization in intercollegiate athletics, admin- istering programs and organizing national championships for its member institutions, and, starting in the 1950s, transforming itself into an economic powerhouse through its tight control of television rights to college sports, especially football. For all intents and purposes, it could have been called the National Collegiate Men’s Athletic Association, since by custom and (as of 1964) explicit rule, it conined its atention to male student athletes. Women’s collegiate sports in turn were tightly controlled by physical educa-

55 T h e E a r ly D ay s o f T i t l e I X

tion leaders who downplayed competition and promoted a vision of par- ticipation and play instead of elite varsity competition.33 Starting in the 1960s and intensifying in the early 1970s, the NCAA began to get nervous that it might be exposing itself to legal challenges because it ofered no opportunities for women to participate in intercollegiate athlet- ics. Yet when the issue of women’s athletics was raised at the January 1972 NCAA convention, there was general agreement that women’s sports were beyond the realm of the group. Women’s athletic leaders in the Associa- tion for Intercollegiate Athletics for Women (AIAW), a newly constituted governance structure, agreed with that position, more than willing to be let alone to run their programs wholly apart from what they viewed as the NCAA’s corrupt model of sports. his dual structure thus suited the inter- ests of both male and female athletic leaders: the women could have their programs and, most importantly, their autonomy, and the men could have theirs too, albeit on a much larger, more prestigious, and deinitely more commercial basis. Title IX — as well as broader developments in sport and society — threatened to upset this fragile division of labor.34 From the start, football loomed over all Title IX discussions. “he prob- lem is that you’re thinking in terms of equality for men and women,” a Title IX opponent once told atorney Margot Polivy. “Well, I’m all in favor of equality for men and women but it’s not just men and women, there’s men and women and football players.”35 Because of football’s high costs and huge rosters (upward of eighty- ive scholarships, plus as many as ity ad- ditional walk- on players), it was usually the biggest item in a school’s ath- letic budget, far overshadowing the spending on all other men’s sports and the tiny women’s programs. Football programs enjoyed such a mystique in local communities and on college campuses, as well as with alums, that they were practically sacrosanct.36 Football’s seeming invincibility was also aided by the myth that football’s gate receipts and revenues paid for the rest of a school’s athletic program. his myth was not backed up by facts then or now. For example, analysis of NCAA igures from the 1970s showed that fewer than one in ive varsity football programs generated revenue at least equal to operating expenses. If schools were forced to dramatically expand participation opportunities for girls and women, critics asked, where would that money come from with- out hurting men’s programs, especially football? Money and control fueled the Title IX debate, although there was also an undercurrent of hubris from the male athletic establishment that they “owned” sports and considered

56 T h e E a r ly D ay s o f T i t l e I X

women as nothing more than unwelcome interlopers in their exclusive do- main. In any case, changing business as usual where sports were concerned was not going to be easy.37 In early February 1974 an Associated Press story quoted Peter Holmes, the new director of the Oice for Civil Rights, as saying that the federal government expected to issue regulations soon (yet another delay) that would help ensure “that women have an equal opportunity to participate in competitive athletics.” Showing how the media oten trivialized the tenets of modern feminism, the Washington Post headline read, “Federal Rules Will Give ’Em a Break, Ma’am.” Sports Illustrated’s “Scorecard” feature on the story warned that the guidelines might “emasculate college sport” by requiring “equity between men’s and women’s activities” and singled out proposed measures such as equal pay for coaches and equal access to scholarships as especially “extreme.” hen Sports Illustrated gave a telling example of the other extreme that prompted such legislative scrutiny in the irst place: with a multimillion dollar budget for men’s sports, the Uni- versity of Oklahoma was willing to make only an additional $1,500 avail- able for women’s sports for the spring term. Repeatedly in the debate over Title IX, media coverage designed to support the status quo in men’s sports had the unintended consequence of publicizing just how unfair that status quo was.38 In a February 21, 1974, leter to the chief executive oicers of member institutions, the NCAA launched its counterofensive. Calling it a mater of “critical concern,” the NCAA noted, “If these regulations are ultimately given the force of law, the administration of the athletic program of virtu- ally every NCAA member will be dramatically afected,” and urged all in- stitutions to contact HEW with their objections. he NCAA lobbying had an impact. In mid- March, the Chronicle of Higher Education reported that the guidelines, primarily because of questions about their impact on col- lege athletic programs, had been delayed yet again.39 One month later, the Chronicle’s Washington Notes reported “persistent speculation” that HEW might decide to exempt revenue- producing sports such as football from the guidelines.40 In many ways the NCAA and the male athletic establishment act as the vil- lains in this story of the early days of Title IX (thankfully they later changed their tune somewhat), but in retrospect they unintentionally played a criti- cal role in ensuring the viability of the law. By prominently entering the debate in 1974 and consciously seeking public support for their anti–Title

57 T h e E a r ly D ay s o f T i t l e I X

IX stance, they helped bring this law out in the open, which in turn made it much less likely that it could have been amended or repealed behind the scenes by a few lobbyists and their Congressional supporters. By creating a corps of supporters as well as detractors, the NCAA made sure that any changes in Title IX would be actively — and publicly — contested.41 On May 20, 1974, the Senate inserted itself into the debate, passing on a voice vote an amendment sponsored by Senator John Tower of Texas that would have exempted “an intercollegiate activity to the extent that such ac- tivity does or may provide gross receipts or donations to the institutions necessary to support that activity.” In efect, the Tower Amendment would have exempted revenue- producing sports from Title IX’s coverage, a very serious threat to Title IX’s overall viability where sports were concerned.42 Once again Billie Jean King lent her name to the cause, writing to se- lected senators on stationery from her new magazine women Sports to ask them to strike the Tower Amendment because it would hurt women in col- lege sports. Claiming that the amendment would “allow intercollegiate ath- letics to continue to discriminate against women,” she reminded senators that the “inequities for women athletes in colleges are tremendous,” with spending for men’s programs sometimes outpacing that for women’s by a ratio of 1,000 to 1. “Indeed, the treatment of women in intercollegiate ath- letics is one of the worst examples of sex discrimination in our educational system.” On June 12, 1974, a House- Senate conference commitee dropped the Tower Amendment from the education bill, a huge victory for Title IX supporters and personal vindication for Billie Jean King.43 King’s lobbying against the Tower Amendment, like her earlier testi- mony in favor of the WEEA, demonstrated her willingness to take time out of her incredibly busy tennis schedule (in 1974 she was still ranked number one) to speak out on political issues close to her heart. hen, as now, she received far more requests to speak than she could ever fulill, so she had to pick her batles carefully. No doubt she had help from women’s advocacy groups in drating statements for her signature, but in the end what she said was less important than the fact that she lent her name. King’s generosity in sharing her celebrity on behalf of Title IX and women’s sports helped build support for the law just as much as the work of lobbyists on Capitol Hill. On June 18, 1974, almost two years to the day ater Congress had origi- nally passed Title IX, Secretary Caspar Weinberger announced the publica- tion of drat regulations seting forth how the federal government proposed to enforce the law. HEW planned to solicit comments from interested citi-

58 T h e E a r ly D ay s o f T i t l e I X

zens and organizations and then inalize a regulation to be submited to the president for approval. Showing the complexity of the underlying issues, the government took over 12,000 words to explain a mere thirty- seven.44 he Chronicle of Higher Education called the drat guidelines “a lawyer’s dream but a client’s nightmare.” Commited to the goal of equal opportu- nity in athletics, the drat guidelines provided no deinition of what equal opportunity meant but did set out a list of steps and changes schools were required to take. Discrimination was not allowed in physical education classes or athletic programs, although sponsoring separate teams for mem- bers of each sex based on competitive skill was allowed as long as there was no discrimination in equipment, supplies, “or in any other manner.” Schools were required to determine student interest at least annually to see in which sports members of each sex would like to compete. Under airma- tive eforts, institutions were required to inform members of the previously limited sex (i.e., women) of the availability of opportunities and “provide support and training activities for members of such sex designed to improve and expand their capabilities and interests to participate in such opportuni- ties.” he inal section stated clearly, “Nothing in this section shall be inter- preted to require equal aggregate expenditures for athletics for members of each sex.” hat last section was clearly a sop to the NCAA.45 It is worth noting what these and future drat regulations did not do: they did not set speciic quotas or guidelines to guarantee that minority women received their fair share of participation opportunities.46 In general Title IX practiced a race- blind approach to expanding opportunity that was mainly concerned with increasing the absolute numbers of women athletes relative to men, rather than a commitment to expanding opportunities for minority women; it opened slots but did not have a strategy for insuring that those slots represented the diversity of women. In the 1970s black female athletes beneited as schools added popular sports such as basketball and track and ield where African American athletes already had a strong presence. Later, however, as schools continued to add sports to stay in compliance, black athletes oten lost out to “white- girl sports” such as ice hockey, soccer, row- ing, and lacrosse, which were not available in many urban or black com- munities. his outcome was a direct legacy of the decision in the 1970s not to require airmative action measures or quotas to structure which women actually beneited, but instead to let the athletic market determine the tal- ent pool. And that athletic market, like the free market in general, was far from fair and equitable.47

59 T h e E a r ly D ay s o f T i t l e I X

he summer of 1974 was a busy one in Washington. On August 9, ater Senate hearings leading to an impeachment vote, plus an adverse Supreme Court ruling, Richard Nixon resigned from the presidency because of the Watergate scandal. One of the issues that new president Gerald Ford inher- ited was Title IX. By October, HEW had received close to 10,000 comments on the proposed regulations, an unprecedented number. Even though ath- letics took up less than 10 percent of the regulations, that subject generated over 90 percent of the comments. As HEW Secretary Caspar Weinberger later quipped, “I had not realized until the comment period that athletics is the single most important thing in the United States.”48 Even though NOW and WEAL ofered diferent critiques of the proposed guidelines, all the women’s groups agreed that the regulations were a step in the right direction.49 he NCAA argued the opposite. Calling the regu- lations “arbitrary government in its most naked form,” the NCAA called the proposed regulations “so vague, ambiguous and obviously lacking in comprehension of the realities of administration of college athletics as to represent a deterrent, rather than an aid, in the development of athletic op- portunity for women.”50 HEW was caught in the middle. Given the undeniable existing discrimi- nation that was being uncovered, it was legally obligated to try to ind a way to promote more equal athletic opportunities for women. At the same time it was engaged in a major public relations batle with athletic groups, and it had to seem responsive to their concerns. In such a situation, nobody was going to win big. In the short term, the more controversial athletics got, the more it helped the NCAA in its atempts to convince HEW to water down the provisions. In the long term, however, the controversy helped the cause of gender equity by building a popular base of support for the law, which helped in turn to insulate it from crippling amendments or repeal. Such popular support also put pressure on the federal government to enforce its wide- ranging provisions.51 In March 1975, word leaked that the White House staf was reviewing revised guidelines, and in April the guidelines were oicially submited to President Ford for his review. he headline in the Chronicle of Higher Edu­ cation, “HEW Sotens Bias Stand,” captured the signiicant watering down that had occurred. As always, HEW was trying to ind a middle ground in a complex area where there weren’t obvious winners or losers. he NCAA was not assuaged. Ater Weinberger’s press conference announcing the inal regulations, a lawyer for the NCAA was quoted as saying: “his may well

60 T h e E a r ly D ay s o f T i t l e I X

signal the end of intercollegiate athletic programs as we have known them in recent decades.”52 he main changes involved both procedure and policy. he new regula- tions allowed high schools, colleges, and universities a three- year grace pe- riod to deal with changes in athletic policies (elementary schools received a one- year extension), such as implementing the integration of physical education classes and requiring that women be allowed to try out for a men’s team if a women’s team was not available. (he extension was clearly a concession to the NCAA.) he regulations added a new (and troubling, to women’s groups) distinction between contact and noncontact sports: schools were now allowed to exclude women from teams in contact sports, even if there was no separate women’s team. his too seemed politically motivated: allowing girls to participate in contact sports such as wrestling and football was quite controversial and could undermine support for the law. Earlier requirements that schools be required to conduct an annual survey of student interest were dropped, and the language calling for reme- dial action to make up for past discrimination was weakened.53 Balanced against those drawbacks — and there is no denying that in most ways the inal regulations were far weaker than earlier drats — were what the regulations did accomplish. hey took a general concept of equal opportunity and identiied tangible, concrete areas where it had to be ad- dressed in order to be in compliance with the law. his so- called “laundry list” (originally developed by Margaret Dunkle in 1974) included provision of equipment and supplies, scheduling of games and practice time, travel and per diem allowances, coaching, locker rooms and facilities, medical training and services, and publicity, among others. More broadly, the regu- lations set as a compliance standard “whether the selection of sports and levels of competition efectively accommodate the interests and abilities of members of both sexes.” Furthermore, for the irst time the regulations set a deadline for institutions to be in compliance.54 here was one inal hurdle to clear. Ater the inal regulations were signed by President Ford on June 3, they went back to Congress for approval. Due to a rule change since the legislation originally passed in 1972, education regulations, which previously would have gone into efect on publication in the Federal Register, now were open to Congressional amendment or disap- proval for a period of forty- ive days. With the NCAA still actively lobbying against the Title IX regulations and various measures pending in Congress that could have potentially crippled its impact, it is not too melodramatic

61 T h e E a r ly D ay s o f T i t l e I X

to say that Title IX faced its most serious threat to date in June and July of 1975.55 In early June a broad coalition of thirty national organizations, many of which had been instrumental in the passage of the Women’s Educational Equity Act the previous August, met to discuss their stand in defense of the law. (By the fall this group had oicially become the Coalition for Women and Girls in Education, with Margaret Dunkle serving as its irst president. he group is still active in the Title IX ight today.) Hardly anyone was fully satisied by the inal regulations. Bunny Sandler’s assessment was both blunt and realistic: “Sure they could have been stronger, but they wouldn’t have goten anywhere. hat’s the political process: it’s what’s possible.” Ater a clear consensus emerged that weak regulations were beter than nothing, the group dedicated all its collective resources to making sure that the regu- lations survived what looked to be a rocky forty- ive days ahead.56 In June there were eforts in both the Senate and the House to send the regulations back to HEW for further review, which was just a cover for more delay. Representative James O’Hara of Michigan organized six days of hear- ings during which representatives of the NCAA and the American Football Coaches Association argued that since the so- called revenue- producing sports did not directly use federal funds they should not be covered by the regulations. Responded one feminist activist, “Since when is making money an excuse for discrimination?” O’Hara seemed to have the momen- tum when his subcommitee disapproved two sections of the regulations (on self- evaluation and on the grievance procedure), but the full commitee sent them back for more review. In a show of solidarity, supporters packed the hearing room wearing bright yellow butons that said, “God Bless You, Title IX.”57 A simultaneous threat came from a rider tacked on to an education ap- propriations bill by Representative Robert Casey of Texas which would have barred HEW from requiring the integration of physical education classes. his amendment had easily passed the House back in April by a vote of 253- 145 but loundered in the conference commitee, which sent it back to the loor for another vote. Just prior to the vote, Representative Patsy Mink of Hawaii, who was managing the loor debate against the rider, received word that her daughter had been in a serious car accident and she imme- diately let. his time the vote was much closer (212- 211), but the physical education exemption still passed. he Senate, however, voted it down the next day by a lopsided margin of 55- 29. Beaten, and with Mink back from

62 T h e E a r ly D ay s o f T i t l e I X

her daughter’s bedside, the House convincingly defeated the amendment 215- 178 three days before the regulation was scheduled to take efect. With the major amendments defeated, and in the absence of any serious efort to scrap the legislation entirely, the Title IX regulations went into efect on July 21, 1975.58 he passage of the Title IX regulations conirmed the importance of second- wave feminist organizations as powerful political forces in Washing- ton. Well- organized, disciplined, and commited to their cause, feminists’ clout was especially critical in crisis situations such as the last- ditch eforts to scutle the regulations. Even though sports were not a major priority for many of these women’s groups, they incorporated the issue into their agen- das when it became so prominent in the Title IX debate. For example, the Washington Post reported that the Casey Amendment had been voted down in the House ater members bowed to “week- long pressure from hundreds of women’s rights lobbyists.” Maybe it only seemed that many. Said one of those “hundreds”: “here were only twenty- seven of us, but we were a talky bunch.”59 he atention that athletics drew to Title IX had another, unintended, result. For every NCAA jeremiad predicting the end of football, the public also learned what second- class citizens women athletes were at all levels of the educational process. Discrimination in athletics produced clear and quantitative inequities that were so blatant they could not be denied. here is nothing abstract about men geting twenty new basketballs while women get the hand- me- downs, or female athletes piling into their coach’s station wagon while men travel by chartered bus or plane. Public awareness of the plight of women athletes increased their legitimacy and helped spread awareness of the broader issue of sexism in all aspects of educational life. Even though in many ways sports “hijacked” what was a general education bill, this outcome was neither surprising nor ultimately detrimental to the overall goals of the law. When Billie Jean King beat Bobby Riggs, hardly anyone outside of a small circle of Washington activists and HEW bureaucrats knew about Title IX. While women’s sports were aggressively entering the national conscious- ness through events such as the Batle of the Sexes, the role of this speciic law was still muted, uncertain. All that changed in the next two years, in large part because of the controversy that the athletics section of the law caused. Whereas in 1973 the phrase “Title IX” would have drawn only blank stares, by 1975 it was inally beginning to enter the vernacular as a symbol

63 T h e E a r ly D ay s o f T i t l e I X

of women’s new rights, athletic and otherwise. Bunny Sandler noticed the ripple efect: “it gave a tremendous impetus to women on campus — and to some men too and to students — to say, ‘What’s going on here is illegal. his violates Title IX.’ ”60 In March 1976 members of the Yale women’s crew team staged a dramatic protest that drew national atention to the glaring inequities facing women athletes and the potential of Title IX to change those conditions. Lacking access to shower facilities during their of- campus winter workouts, mem- bers of the women’s team were forced to wait, cold and sweaty, on a bus for half an hour while the men’s team showered in the facility’s only locker room before jointly returning to campus. Angered at Yale’s slow response to their call for proper facilities, nineteen members of the crew team, led by captain Chris Ernst, strode into the oice of Joni Barnet, the director of Women’s Athletics, and stripped of their sweat suits to reveal naked bodies with “Title IX” writen on their backs and chests in blue magic marker. he story was picked up by the New York Times and other newspapers around the country. Soon ater, the women’s crew team got its showers.61

One interesting aspect of the history of Title IX is how litle its im- plementation changed between the Republican administrations of Richard Nixon and Gerald Ford and the election of Democrat Jimmy Carter in 1976. Carter had a somewhat contested relationship with women’s rights activ- ists, and he never made Title IX enforcement a high priority.62 Republican HEW secretary Caspar Weinberger had a point when he said, “he most efective enforcement of all is a public which supports the law.” So did his Democratic successor, Joseph Califano, who was reportedly frustrated by the contentious batles over Title IX implementation: “Why did I have to be Secretary when this mess came up?”63 he Department of Health, Education and Welfare had three main re- sponsibilities in administering Title IX: 1) explaining the law to schools and colleges and advising the public of its rights under the law and what to do if those rights were denied; 2) investigating charges of discrimination iled by citizens; and 3) initiating investigations to make sure the nation’s 16,000 school districts were in compliance with the law. Obviously the delay until the summer of 1975 in inalizing regulations severely limited HEW’s abil- ity to publicize and carry out its mandate. “To get Title IX regulations was like pulling teeth with your ingers,” recalled its Senate sponsor Birch Bayh. And yet even before the regulations were published, the department could

64 T h e E a r ly D ay s o f T i t l e I X

have drawn on its general experience in handling civil rights complaints to rule that suspect practices such as barring girls from shop courses, ofering six sports for boys and none for girls, or expecting female coaches to vol- unteer their time while men were paid were clearly prohibited by Title IX. Instead it tried to avoid taking controversial or politically sensitive stands, of which Title IX had more than its share, especially where athletics were concerned.64 In 1974 the Legal Defense and Education Fund of the National Orga- nization for Women established the Project on Equal Education Rights (PEER) to monitor progress in the enforcement of federal laws against sex discrimination in schools, including Title IX.65 Frustrated by the inability of HEW to provide adequate documentation of its eforts or results, in 1976 PEER initiated an analysis of every complaint regarding sex discrimination in elementary and secondary schools iled between June 23, 1972, and Oc- tober 1, 1976. (Even though PEER excluded colleges and universities from its study, the enforcement paterns there were likely similar or possibly worse.) he title of PEER’s inal report, Stalled at the Start, foreshadowed its negative assessment. While the report covered all aspects of education, athletics drew special scrutiny: “he disparity in support for boys’ and girls’ athletic programs is perhaps the single most visible piece of discrimination in American education.”66 In the period under PEER’s study, HEW managed to resolve only one out of every ive complaints iled, with two- to three- year delays not un- common. More than a third of the complaints iled during 1973 were still unresolved three years later. his was not a question of tens of thousands of complaints looding the oice: HEW, with over one hundred people in eleven regional oices in addition to the staf in Washington, received 871 complaints for elementary and secondary schools and resolved only 179 in the four- year period surveyed. While the largest number of complaints concerned employment discrimination against women, the second- largest category was athletics.67 According to PEER’s case- by- case analysis, investigations were cursory, usually consisting of litle more than writing a leter to the school super- intendent and then considering the case closed if he (and in those days, the superintendent was almost always male) claimed to be addressing the problem; rarely did HEW regional oicials pay a site visit to investigate the complaint. Haphazard enforcement and failure to act on complaints under- mined public and institutional respect for the law. In May 1974, the local

65 T h e E a r ly D ay s o f T i t l e I X

chapter of the National Organization for Women iled complaints involving three school districts in Beaver County, Pennsylvania, to which the school districts were given thirty days to respond. Two replied but then did not hear anything again from HEW for almost two years; the third district never answered. Jeanne Doyle, the NOW activist who had organized the com- plaint, observed, “When we irst iled our complaint, the school people were really nervous. Today, when you talk to someone in the school dis- trict, they just smile. hey know nothing’s going to happen.” A HEW stafer conirmed that “Title IX is dead in a district that’s been treated that way.” And if HEW took two years to respond to a complaint, how serious could the threat of losing federal funds be?68 Without clear leadership from Washington, it was just too easy for school districts to ignore or feign indiference to the law. For example, the 1975 regulations required that schools do a self- evaluation within a year, but very few schools made more than a cursory efort, or if they did, they did not forward the results to HEW. And even though HEW repeatedly said that the three- year adjustment period to end in July 1978 was not a waiting pe- riod (elementary schools only had one year; that deadline passed in July 1976) and that institutions must immediately begin taking steps to bring themselves into compliance with the law, many schools made only the most supericial changes or put them of entirely.69 In a patern that would continue throughout Title IX’s troubled enforce- ment history, institutions said repeatedly that they could not go forward because they were confused about what the law required, especially where athletics was concerned. Cal Papatsos, the women’s athletic director at Queens College, put it this way in 1976: “he tragedy is that when Title IX initially came out in 1972, it set high expectations because HEW promised all things to all people. Since the inal regulations came in efect, I’ve been up and down the eastern seaboard and the only action I can see is people trying to igure out what it is. I see most people in a holding patern.” In some ways this was a valid concern, since there were major ambiguities about how the law would play out. Just as likely, however, when institutions claimed they didn’t understand the rules, what they were really saying was that they didn’t want to make the required changes in the irst place.70 Schools and universities oten had starkly diferent views of what was required. Some of the most apocalyptic language, not surprisingly, came from those with the most vested interest in the status quo. Alabama football coach Bear Bryant announced, “I’m all for women’s athletics but if we had

66 T h e E a r ly D ay s o f T i t l e I X

to split our budget, it would bankrupt us.” (HEW never considered requiring equal total expenditures on men’s and women’s athletics.) Athletic Director Jim Kehoe of the University of Maryland, where the women’s athletic bud- get hovered around 2 percent of the total, ofered a similar mix of support and intransigence: “While I support philosophically the principle of equal- ity, as a practical mater it just won’t work.” As a result of such foot dragging, it is probably safe to say that no college or university in the country was in full compliance with the law when it oicially went into efect on July 21, 1978, six long years ater its initial passage.71 In December 1978 HEW took yet another stab at explaining how the ath- letic policy would work, publishing drat guidelines and asking for com- ments by February 1979. hese proposals raised a storm of controversy in much of the athletic community because they proposed to use an “equal per capita” expenditure benchmark to compare men’s and women’s athletics, by far the most radical proposal yet to have come from Washington.72 By March HEW had received over 700 responses, nowhere near as many as the 10,000 it got when it was drating the initial regulations in 1974–75 but still a sizeable number, all with their own opinions and arguments about why the proposals would or would not promote equal opportunity for women ath- letes or potentially bankrupt existing sports programs, or indeed whether athletics should be covered in the irst place. With the potential for damag- ing riders to HEW appropriations bills working their way through Congress, Title IX’s fate once again hung in the balance. he Chronicle of Higher Educa­ tion called it a “giant game of ‘chicken.’ ”73 Like the major shit between the drat regulations circulated in 1974 and the inal ones adopted in July 1975, HEW’s inal Intercollegiate Athletics Policy Interpretation showed major diferences from its earlier incarnation. he most obvious change was dropping any references to equal per capita expenditures, which had proven a problematic way to measure equality. Among other things, because per capita expenditures were tied to present levels of participation, they tended to perpetuate past discrimination rather than encourage new opportunity slots. Instead colleges were required to provide “proportionately equal” scholarships for men’s and women’s ath- letic programs as well as ofer “equivalent” beneits and opportunities in other aspects of sports.74 In the long run the main signiicance of the December 1979 policy in- terpretation was the articulation of what came to be known as the “three- prong test.” Under this test, an institution was deemed in compliance with

67 T h e E a r ly D ay s o f T i t l e I X

Title IX if it met any one of the three prongs. he irst prong required that participation opportunities, especially scholarships, for male and female athletes be substantially proportionate to their general enrollment in the educational institution. For example, if male students made up 55 percent of students, then they should receive approximately 55 percent of the ath- letic opportunities, with the remaining 45 percent alloted to women. his emphasis on proportionality was a compromise, pushed by the NCAA and the Football Coaches Association. Two other options had been to require that athletic opportunities be split evenly at ity- ity or that athletic ex- penditures be equal for the men’s and women’s programs. At the time male undergraduates earned signiicantly more bachelors’ degrees than women (56 percent to 44 percent in 1972), so athletic directors probably breathed a sigh of relief when the proportionality option was chosen, because that goal seemed much easier to reach than ity- ity parity. In the long term, however, this compromise backired when women became a majority of college undergraduates in the 1990s.75 he two other routes to compliance concerned the key issue of “interest” on the part of the underrepresented sex, in this case, women. Many ath- letic administrators as well as leaders of the NCAA argued that the dispari- ties between men’s and women’s programs were not necessarily the result of discrimination but caused by longstanding societal factors that meant women were less interested in participating in organized sports than men. Women’s sports leaders such as Donna Lopiano dismissed this reasoning out of hand: “here’s never been a question of enough interest. If you build it, they will come.”76 Relecting the later point of view, the second prong required that a school show that it had a history and continuing practice of program expansion to meet the interests and needs of women; the third prong required demonstration that the school’s programs “fully and efec- tively accommodated” the interests and abilities of the underrepresented sex. With small changes and tweaking over the years, these same standards are still the main guiding principles for all Title IX litigation and compli- ance reviews today.77 At the same time the 1979 policy interpretation for athletics was being formalized, another batle was coming to a head: one between the National Collegiate Athletic Association and the Association for Intercollegiate Ath- letics for Women over formal control of women’s athletics. In fact the two stories were intimately connected. he promulgation of the policy interpre- tation conirmed that, like it or not, athletics were going to be part of Title

68 T h e E a r ly D ay s o f T i t l e I X

IX enforcement. Its political and legal options exhausted, the NCAA stepped up its eforts to maintain control over intercollegiate sports in general by unilaterally announcing in 1980 that it planned to ofer national champion- ships in most women’s sports starting with the 1981–82 season. Like many other aspects of the batle over Title IX, this power play was about money and control. As AIAW lawyer Margot Polivy noted, “When the budget for women was ten thousand dollars, no one cared how it was spent. When we added two zeroes, it became a power issue.”78 he NCAA had been eyeing women’s sports throughout the 1970s but nothing concrete had come of it. At various points the AIAW and the NCAA discussed a possible merger, but nothing came of those talks either, in part because of the vastly diferent resources and goals of the two groups and also because of ongoing ill will from the NCAA’s anti–Title IX lobbying. he AIAW was only interested in a merger between equals, with an equal split in decision making and continued oversight over the ield of women’s athlet- ics. Such guarantees were not forthcoming. For the NCAA, merger would really be a submerger: taking over and folding the AIAW’s programs into theirs. hink of it as a hostile takeover, and not just by any athletic orga- nization but by one of the most vocal and persistent leaders in the ight to weaken Title IX. Representative Pat Schroeder described the NCAA’s strat- egy in this way to delegates at the 1980 AIAW convention: “First they tried to eat the sheep. Now they’ve seen the light and want to herd them.”79 Actually the moment when the batle was lost may have occurred several years before the NCAA made its fateful announcement that it was moving into the ield of women’s athletics. he tipping point was the result of one of Title IX’s unintended consequences: the merging of previously separate men’s and women’s athletic departments. Note that there is nothing in the law or the regulations that mandates this outcome, but it was oten the irst step taken by schools as part of their Title IX compliance. By 1979–80, 80.5 percent of all women’s programs were run as part of a single administra- tive structure that included both men’s and women’s programs, invariably under the control of a male athletic director. he newly designated position of “Senior Woman Administrator” became a glass ceiling above which few women could rise. Without their former power base, and lacking control over the daily content and rhythms of women’s sports, women athletic leaders were already deeply disadvantaged when the NCAA made its move. In many ways the NCAA’s subjugation of the AIAW just replicated on a na- tional scale the patern that had already taken place at hundreds, probably

69 T h e E a r ly D ay s o f T i t l e I X

thousands of athletic departments across the country as the larger, more powerful male divisions absorbed — and co- opted — the smaller, formerly autonomous female departments.80 By the time the NCAA made its move in 1980–81, the chance for an in- dependently run women’s athletic structure had passed. Separate teams for girls and women prevailed, but not separate administration and gov- ernance. As the Women’s Sports Foundation noted, “he tragedy is that it is altogether possible for women to win the batle for equal opportunity and lose the war by turning over the control of women’s sports to others.” he Association for Intercollegiate Athletics for Women closed its doors on June 30, 1982. Once again the male model triumphed, although in this case it wasn’t without a ight.81

The fir st decade of Title IX’s existence represented a time of mo- mentous change for women and sport. Seemingly overnight, American sportswomen found participation opportunities that would have been unthinkable just ive or ten years earlier. Even if the law was not being ac- tively enforced for most of the 1970s, it was a powerful tool in the struggle for gender equity in sports because it allowed advocates to put pressure on schools and budgets knowing that a federal law was behind them. As Bernice Sandler observed in 1981, the very existence of Title IX “is a good example of how having a law in place leads to a voluntary change. he vast majority of institutions have not made all the changes we would like, but they have made some changes.”82 To ascribe all the breakthroughs and progress to Title IX, however, is both inaccurate and simplistic. Some of the biggest jumps in participation and funding happened before Title IX was passed or before its impact on athletics was widely known, which was not until late 1973 and early 1974. In addition, some changes, at least limited ones, were going to happen anyway precisely because the inequalities in sports were so extreme that they could not be ignored. Even the most diehard traditionalists would be hard pressed to argue that it was fair that women and girls received only 1 percent of sports budgets. As sports historian Kathryn Jay observed, “Sports had be- come too important to American society to exclude half the population.”83 Since so much progress occurred without active prosecution of the law, some critics have concluded that Title IX wasn’t all that important, that many of these changes would have happened on their own.84 And yet given the intransigence of many athletic directors, school administrations,

70 T h e E a r ly D ay s o f T i t l e I X

and NCAA oicials, it is hard to imagine that as much progress would have voluntarily occurred in this initial period without Title IX. In addition to suggesting that some change was inevitable, the threat of losing federal funds was also a powerful incentive for action. Even though in hindsight we know that the federal government never seriously considered resorting to this drastic option, institutions did not know this at the time. In Donna Lopiano’s memorable image, “It was more like a guillotine in a courtyard. People were afraid of it. For a while, people did things because they felt they had to.” hese were optimal conditions for change and progress in women’s sports.85 Just as signiicant was the inluence of a strong and vibrant feminist movement that put issues of gender equity squarely on the national agenda. In the climate of expectations fostered by the revival of feminism, especially in the irst half of the 1970s when so much progress for women occurred, the momentum was on the side of those who were calling for change in the gender status quo. Even though second- wave feminism never made sports a high priority, this supportive backdrop aided advocates who were pressing for changes in sports and recreation programs across the country. To use a metaphor from cycling: sports drated in feminism’s forward momentum. Absent the symbiotic connection between the women’s sports revolution and the explosion of modern feminism in the 1970s, it is quite likely that the story of Title IX would have been far less dramatic. he remarkable progress achieved in this initial take- of period shows how much could happen when a new federal law intersected with increas- ing demands for change in a supportive political climate alongside a certain reservoir of good will to make amends for past discrimination and neglect. Put another way, the existing sports structure had enough wiggle room in the 1970s to accommodate women — up to a point. hen the progress stalled. It took less than a decade to get girls’ high school participation rate from 7 to 32 percent of the total; thirty- ive years later, according to the Women’s Sports Foundation, female athletes on the high school level had only made it to 41.2 percent. Law professor Diane Heckman coined the term “glass sneaker” to refer to this plateau.86 While it may not be possible to prove empirically, there seems to have been enough lexibility in the system to meet many of the initial demands for more opportunities for women’s sports without seriously impacting the status quo. Many of these changes were more cosmetic than substantive. Add teams, but don’t pay the coaches; give girls uniforms, but not for home

71 T h e E a r ly D ay s o f T i t l e I X

and away games, and don’t replace them every year; upgrade girls’ intramu- ral teams to varsity status but still expect them to raise travel funds through bake sales; schedule girls’ games for 3 p.m. on hursday rather than prime- time Friday night. he looming deadline for Title IX compliance added a sense of urgency to implementing these changes. By 1978 — the year Title IX went into efect — most of the easy ixes had been applied. Ater that point the numbers, both participation opportunities and budgets, contin- ued to inch up, but by gradual increments, not huge spurts of growth. Mar- got Polivy put it this way in 1981: “We’re not going back to being barefoot in the kitchen, but we’re not going to see the growth continuing, either.”87 Numbers from both the high school and college level conirm the ex- istence of Title IX’s glass sneaker. Ater great leaps forward early in the de- cade, there were already noticeable signs of a slowdown by 1978–79 ater Title IX inally went into efect. For example, high school participation igures show that the sharp upward climb peaked in the following sports in 1977–78: basketball, ield hockey, gymnastics, swimming and diving,88 tennis, indoor and outdoor track and ield, and volleyball. In sports such as basketball, ield hockey, gymnastics, and outdoor track and ield, the number of girls playing in that year was an absolute all- time high; in others, the peak numbers from the late 1970s were only matched much later in the 1980s or 1990s. (See igure 1.) A similar patern is seen in women’s intercol- legiate sports. (See igure 2.) Obviously outside factors afect the popularity of individual sports (the steady rise of soccer conirms this) but the overall trend is incontrovertible.89 Once again, much of this is about money. School administrators and athletic directors were not necessarily opposed to women’s sports as long as they could add resources and participation opportunities for women without having to cut into preexisting programs for men. hose two goals coexisted fairly well for most of the 1970s, as budgets for both men’s and women’s sports increased. According to a study by the AIAW, the average men’s athletic budget in a NCAA Division I institution rose from $1.2 mil- lion in 1973–74 to $1.6 million in 1978–79, an increase of $424,000. Mean- while the average total women’s budget in the same schools for 1978–79 was $276,000. In other words, the increases alone in men’s budgets were more than 50 percent greater than the new resources given to women.90 With Title IX regulations inally in efect in 1978, most institutions needed to make some harder choices. And who was in charge of making these deci- sions? Male administrators and athletic directors with a vested interested in

Source: National Federation of State High School Associations Participation Figures, 〈 htp://www.nhs.org 〉.

Basketball Track & Field (Outdoor) Volleyball So�ball

600,000

500,000

400,000

300,000

200,000

100,000

0

19 6

9– 70

19 71

– 72

19 73

– 74

19 75

– 76

19 77

– 78

19 78

– 79

19 79

– 80

19 80

– 81

19 81

– 82

N um

be r

of S

tu d

en ts

P ar

ti ci

pa ti

ng

Figure 1. Women’s sports participation, high school, 1969–1982.

Figure 2. Women’s sports participation, collegiate, 1966–1982.

Basketball Field Hockey Volleyball So�ball Track & Field (Outdoor)

12,000

11,000

10,000

9,000

8,000

7,000

6,000

5,000

4,000

3,000

2,000

1,000

0

1966–67 1971–72 1976–77 1981–82

N um

be r

of S

tu d

en ts

P ar

ti ci

pa ti

ng

Source: National Collegiate Athletic Association, he Sports and Recreation Programs of the Nation’s Universities and Colleges, Report #7 (1987), 24–25.

74 T h e E a r ly D ay s o f T i t l e I X

the athletic status quo — “In short, the persons who have been most guilty of sex bias are the ones who are irst in line to direct its elimination,” accord- ing to an update by Candace Lyle Hogan in women Sports. Around this time the precipitous decline in women in athletic leadership positions that was a byproduct of Title IX kicked in, robbing women physical education lead- ers of an independent power base to serve as advocates for gender equity. his, combined with the escalating batle between the NCAA and the AIAW, muted the voices calling for continued program expansion for women and girls.91 Despite what seemed like revolutionary breakthroughs in the 1970s, in retrospect it is clear that this progress did not go anywhere near far enough. As Bernice Sandler pointed out ruefully, when budgets for women’s sports go from zero to 20 percent it only means “things have gone from absolutely horrendous to only very bad.” What was it going to take to break through the glass sneaker and get the percentage closer to ity- ity parity? Never again would the numbers for women surge the way they did in the 1970s; never again would the batle be fought in such a supportive political and social climate. From now on, it would be a long, slow, contested slog to- ward the still- elusive goal of gender equity in sports. Without Title IX, that struggle would have been much longer and even harder.92