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Title IX Education & the Law > Title IX

Abstract

Title IX of the Educational Amendments to the 1964 Civil Rights Act was signed into law in 1972. It bans any educational institu- tion that receives federal funds from discriminating on the basis of sex, and applies to all academic and extra-curricular programs.

Title IX has been praised as the chief factor behind the advances made in gender equity in education over the past three decades. In addition, the significant advances of women in higher educa- tion and in the workplace since the 1970s have been attributed by some to Title IX. Despite all this, Title IX is most well known for the impact it has had on intercollegiate athletics. The scale of women's collegiate athletic programs has increased exponen- tially during the past three decades, principally as a result of Title IX.

Overview

Title IX has been called "the most controversial topic in col- lege sports," and its legacy has likewise been called "a legacy of debate" (Suggs, 2002). A component of the 1972 Educational Amendments to the 1964 Civil Rights Act, Title IX was designed to end discrimination on the basis of sex in education, just as Title IV of the original 1964 Civil Rights Act had been designed to end discrimination on the basis of race. While many claims have been made about the exact impact Title IX has had on gender equity in education, one result of Title IX is overwhelm- ingly clear: it began, and continues to fuel, a vigorous debate about funding for, participation in, and the purpose of intercol- legiate athletics.

After the passage of Title IX, educational institutions accepted and applied the legislation to their academic programs without any resistance or debate (Suggs, 2002). Most college and second- ary school athletic programs, however, virtually ignored Title IX until a series of Supreme Court decisions during the 1990s made it clear that lack of compliance left schools vulnerable to lawsuits with monetary-damage claims. Partly as a result of this threat of prosecution, educational institutions increased their efforts to comply with Title IX's athletic provisions throughout the 1990s (Anderson, Cheslock, & Ehrenberg, 2006, p. 227). These efforts persist, albeit not without continued controversy.

Over the first four decades of its existence, Title IX has gar- nered many vocal supporters and critics. The supporters praise Title IX for expanding women's educational opportunities and changing American culture's expectations of what women can achieve. The critics charge Title IX with discriminating against men, as efforts to comply with the legislation have

Abstract

Overview

History

The Political Climate Surrounding Title IX

Title IX & Athletics

Enforcing Title IX

Applications

Content of Title IX

What Is Sex-Based Discrimination?

Title IX & College Athletics

The Three-Prong Test

Viewpoints

Impact of Title IX: The First 25 Years

Title IX at 40

The Debate over Title IX

Men's Athletics

Changing Athletic Models

Terms & Concepts

Bibliography

Suggested Reading

Table of Contents

Title IX

led some institutions to eliminate men's teams in less widely popular sports such as wrestling and swimming. Despite these accusations, Title IX is legislation with which all educational institutions must comply.

History The Political Climate Surrounding Title IX During the late 1960s and the 1970s, the women's movement, what many refer to as the second wave of feminism, succeeded in focusing national attention on the sex-based inequalities that hampered American women's lives. One of the most deleteri- ous of these inequalities was the earning gap between men and women. Although women had, by this time, become a vital part of the American workforce, female wage earners were rarely paid as much as their male peers. Women's organizations and advocacy groups asserted that this earnings gap could be traced back to sex-based inequalities in education. Women filed class action lawsuits against colleges, universities, and the US fed- eral government, alleging that these institutions discriminated against women. All this encouraged Congress to focus on sexual discrimination in education and hold hearings on the subject in the summer of 1970 (U.S. Department of Justice, 2001).

This was the political climate out of which Title IX was born. Hoping to build on the momentum gained by the special hearings a year before, Representative Edith Green made an unsuccessful attempt to add a ban on sex-based discrimination to the 1971 Education Amendments. The next year, in an attempt to derail the renewal of the 1964 Civil Rights Act, conservative Southern congressmen added gender to the categories protected against discrimination. They hoped that the idea of equal opportunities for women would be distasteful enough to prevent the passage of the entire bill (Suggs, 2002). To their chagrin, the legislation was passed and Title IX became law.

Title IX & Athletics Title IX prohibits any educational institution receiving federal funds from discriminating in any activity or program on the basis of sex. In all academic and extra-curricular fields except athletics, Title IX was adopted and applied with little or no controversy (Suggs, 2002). In contrast, decades passed before Title IX was effectively enforced in the field of athletics. When Title IX became law in 1972, most colleges simply did not have varsity sports teams for women. According to the National Col- legiate Athletic Association (NCAA), while approximately 170,000 men participated in college sports programs in 1972, just under 30,000 women also participated (Suggs, 2002). In the first few years after Title IX was passed, it was unclear what, if anything, colleges and universities would be required to do to remedy this situation. The first interpretation of how Title IX applies to intercollegiate athletics was not issued until 1975, with a delayed compliance date of 1978. These initial instructions were generally felt to be too vague, so a more comprehensive

plan was issued by the US Department of Education's Office for Civil Rights in 1979 (Anderson et al., 2006).

Enforcing Title IX Although the 1979 plan included a three-part test to prove compli- ance with the portion of Title IX dealing with athletics, the test was ignored throughout most of the 1980s. The Carter, Reagan, and George H. W. Bush administrations put a low priority on enforcing Title IX, and as a result, educational programs felt no real need to comply with the law (Anderson et al., 2006). When, in 1984, the Supreme Court ruled that Title IX was only applicable to the spe- cific programs that directly received federal aid, athletic programs became legally exempt from compliance (Suggs, 2002). This situation lasted until 1988, when Congress, overriding a veto by President Reagan, enacted the Civil Rights Restoration Act. This law restored the broad interpretation of Title IX, in which Title IX applied to all programs or activities at institutions that received federal funds, whether or not a program was a direct recipient of these funds (U.S. Department of Justice, 2001).

Efforts on the part of collegiate athletic programs to enforce Title IX increased throughout the 1990s for several reasons. The US Department of Education's Office for Civil Rights is responsible for enforcing Title IX, and does so on a complaint-driven basis (Barnett, 2003). Until students started reporting discrimina- tion, and doing so in such a way that threatened more than just inconvenience for educational institutions, Title IX would not be enforced. This process of upping the stakes of Title IX compli- ance began in 1992 when the Supreme Court ruled in Franklin v. Gwinnett County Public Schools that the plaintiff in a Title IX lawsuit was entitled to monetary damages as long as the dis- crimination was intentional. In 1996, Cohen v. Brown University contributed to the increasing wariness on the part of colleges and universities of Title IX lawsuits. In this case, the Supreme Court held that Brown University was obliged to "adhere to strict cri- teria for demonstrating gender equity in intercollegiate athletics" (Anderson, et al., 2006, p. 228). This decision was particularly startling because Brown already had more women's sports teams than any other university besides Harvard. The decision con- vinced schools that until they were in strict compliance with Title IX, they would be vulnerable to lawsuits. Another factor that helped plaintiffs in such lawsuits was the Equity in Athletics Disclosure Act, which Congress passed in 1994. This law man- dated that institutions give free access to data about their men's and women's athletics programs. Access to this data helped the federal government more easily gauge compliance with Title IX. Finally, unlike its predecessors, the Clinton administration made enforcing Title IX a priority (Anderson et al., 2006).

Currently, educational institutions are generally committed to enforcing Title IX in their educational programs. Compliance, however, is not always easy. Much controversy has been caused in recent years by schools who have decided to eliminate men's sports teams, especially wrestling teams, in order to attain com- pliance with Title IX.

Title IX

Applications Content of Title IX According to the US Department of Education, Title IX "is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiv- ing federal financial assistance" (Office for Civil Rights, 1980, p. 375). This essentially means that institutions must provide students with academic and extra-curricular opportunities on a "gender-neutral basis" (Anderson et al., 2005, p. 225). While Title IX is most well-known in relation to college athletics, the legis- lation is applicable to myriad other aspects of education. The text of Title IX specifies the law as being applicable to admission, recruitment, housing, facilities (such as locker rooms), access to course offerings, access to schools operated by local educational agencies (LEAs), counseling, financial assistance, employment assistance to students, health insurance benefits, athletics, text- books and curricular materials, and marital/parental status. In regards to this last category, Title IX has made it illegal for high schools to prevent a pregnant teenager from finishing her degree (U.S. Department of Education, Office for Civil Rights, 1980). Title IX additionally prohibits sexual harassment and requires, "as a condition of receipt of federal financial assistance [that] if a recipient is aware, or should be aware, of sexual harassment, it must take reasonable steps to eliminate the harassment, prevent its recurrence and, where appropriate, remedy the effects" (U.S. Department of Justice, 2001, p. 100). Only educational insti- tutions that are operated by an entity controlled by a religious organization whose religious tenets are inconsistent with Title IX are exempted from enforcing the legislation's various provisions (U.S. Department of Justice, 2001, p. 11).

What Is Sex-Based Discrimination? Title IX prohibits three distinct types of sex-based discrimina- tion: disparate treatment, disparate impact, and retaliation. The US Department of Justice (2001) defines disparate treatment as "actions that treat similarly situated persons differently on the basis of a prohibited classification," such as sex (p. 57). Dis- parate impact "focuses on the result of the action taken, rather than the intent" (p. 63). Disparate impact applies to a policy that seems to be sex-neutral but that has the result of discriminating on the basis of sex. For example, a successful lawsuit brought against the National Merit Scholarship program claimed that by relying solely on SAT scores in determining scholarship eligibil- ity, the program discriminated against female applicants (p. 67). Title IX's prohibition of retaliation is designed to protect people who file Title IX complaints as well as the people who investi- gate these complaints from retaliation by the accused. In short, it is intended to "preserve the integrity and effectiveness of the enforcement process itself" (p. 71).

Title IX & College Athletics Title IX is most well known for its provisions related to col- lege athletic programs. Title IX specifically requires schools to provide men's and women's sports programs with equal "ben-

efits and services." This includes "scholarships, travel expenses, practice and competitive facilities, equipment and supplies, scheduling and practice times, and number and compensation of coaches and locker rooms" (Burnett, 2003). The legislation also contains more opaque compliance criteria. For this reason, the US Department of Education has issued very specific guidelines about what schools must do in order to be in compliance with Title IX.

The Three-Prong Test These guidelines include what was originally referred to as the three-part test (U.S. Department of Education, Office for Civil Rights, 2005) but today is known as the "three-prong test." The three-prong test has become the primary measure used in law- suits to gauge institutional compliance with Title IX (Anderson et al., 2006). According to the Office for Civil Rights, an institu- tion is judged to be in compliance if it meets any one of three parts of the following test:

• "the percent of male and female athletes is substantially proportionate to the percent of male and female students enrolled at the school; or

• "the school has a history and continuing practice of expanding participation opportunities for the underrepre- sented sex; or

• "the school is fully and effectively accommodating the interests and abilities of the underrepresented sex" (Dept. of Education, 2005, p. iii).

The most effective way to prove compliance with the three-prong test has long been considered to be the first criteria: ensuring that the ratio of men to women who participate in the sports programs is proportionate to the ratio of men to women enrolled in the college or university. As long as a college has the same propor- tion of female athletes as it does female students, it can claim "substantial proportionality" and be safe from potential lawsuit (Suggs, 2002). Recently, more schools have begun to explore test three, often using surveys to prove that they are accommo- dating female students' interests and abilities. As a result, the US Department of Education's Office for Civil Rights in 2005 offered new guidelines on how to properly compose and admin- ister such a survey.

Viewpoints Impact of Title IX: The First 25 Years Significant disagreement exists as to the exact impact Title IX has had on education, American culture, and college sports. The Department of Education has credited Title IX with many of the advancements women have made in education and in the work- place (U.S. Department of Education, Office for Civil Rights, 1997). In a press release celebrating the 25th anniversary of Title IX, it refers to women's advancements in these fields as "the

Title IX

great untold story of success that resulted from the passage of Title IX" (U.S. Department of Education, Office for Civil Rights, 1997). The report goes on to cite a number of statistics as evi- dence of this claim:

• "In 1994, 63 percent of female high school graduates aged 16-24 were enrolled in college, up 20 percentage points from 43 percent in 1973.

• "In 1994, 27 percent of both men and women had earned a bachelor's degree. In 1971, 18 percent of young women and 26 percent of young men had completed four or more years of college.

• "In 1994, women received 38 percent of medical degrees. When Title IX was enacted in 1972, only 9 percent of medical degrees went to women.

• "In 1994 women earned 38 percent of dental degrees, whereas in 1972 they earned only 1 percent of them.

• "In 1994 women accounted for 43 percent of law degrees, up from 7 percent in 1972.

• "In 1993-94, 44 percent of all doctoral degrees awarded to U.S. citizens went to women, up from only 25 percent in 1977" (U.S. Department of Education, Office for Civil Rights, 1997).

The report also includes statistics on women's involvement in college athletics, the area in which Title IX is considered to have had the biggest impact:

• "Today [in 1997], more than 100,000 women participate in intercollegiate athletics--a fourfold increase since 1971.

• "In 1995, women comprised 37 percent of college student athletes, compared to 15 percent in 1972.

• "In 1996, 2.4 million high school girls represented 39 per- cent of all high school athletes, compared to only 300,000 or 7.5 percent in 1971. This represents an eightfold increase" (U.S. Department of Education, Office for Civil Rights, 1997).

Since 1997, the percentage of women involved in high school and college athletics has only increased (Suggs, 2002; Anderson et al., 2006, p. 226).

Title IX at 40 Despite many the myths and misconceptions that still surround- ing Title XI, quite a lot has changed in women’s participation in athletics over the past forty years. For example,

• "The number of young women who played high school sports was just under 300,000 in the early 1970s. By 2011, the figure was over 3 million (Kane, 2012, p. 3; Ladda, 2012, p. 16).

• "Prior to Title IX, sports scholarships for women were unheard of. By 2012, almost 43 percent of all college athletes who received scholarships were women (Kane, 2012, p. 3).

• "Of the gold medals won by the American team during the 2012 Olympic Games in London, England, 66 percent were won by women (Kane, 2012, p. 3).

The Debate over Title IX As is evidenced by the above statistics, most commentators on the debate over Title IX, and especially Title IX's supporters, tout the legislation as causing a sea of change in American culture's attitude towards women. The most common debate about Title IX is not over whether the legislation has been effective, but over whether its gains have been worth the cost. Namely, have male students and men's athletic programs suffered as a result of Title IX?

Men's Athletics Critics of Title IX charge that it has "spawned resentment and confusion" and led to a state of affairs where there is "serious dis- crimination going on against men" (Darden, 2007, p. 41; Suggs, 2002). These critics are angered by the decision of many universi- ties to achieve Title IX compliance by cutting men's nonrevenue sports. If a school cannot afford to achieve "substantial propor- tionality" by boosting the number of its women's sports teams, then it may find the funds to do so by eliminating some men's teams. For many schools this has meant cutting less popular sports such as wrestling and tennis. Many college athletic coaches claim that this approach is especially illogical because there are simply more men on campus interested in playing sports. These coaches find that while they have to recruit women on campus to fill spots on some women's teams, they have to turn campus men away from walk-on spots on men's teams (Suggs, 2002).

Supporters of Title IX disagree (Suggs, 2002) and point out that the same athletic departments that cut men's wrestling and tennis teams spend an enormous portion of their budget on rev- enue-generating sports such as men's football and basketball. According to Fagan and Cyphers (2012), Division 1-A schools spent 59 percent of their athletic budget for men’s sports on foot- ball (59 percent) and basketball (19 percent) in the 2009–2010 school year. When non-revenue generating men’s sports such as wrestling or tennis are cut, it is usually not to fund women’s programs but rather to put more money into the already success- ful revenue-generating sports programs such as football. Rutgers University, for example, cut the men’s tennis program in 2006, which had a budget of $175,000. The university spent that same amount in 2006 housing football players in hotel rooms the night before six home games (National Women’s Law Center, 2012).

Changing Athletic Models This debate over Title IX has sparked a larger debate over the nature of college athletic programs. Many intercollegiate athlet- ics programs are run on a "commercial model," whereby schools

Title IX

invest in the most lucrative sports, namely football, and hope to generate revenue by doing so (Porto, 2005, pp. 29–30). Sup- porters of Title IX suggest that educational institutions' sports programs should instead follow a "participation model," whereby athletics are valued not according to their commercial worth, but as a rewarding part of a liberal arts education. In a participa- tion model, the principal beneficiaries of college athletics are not fans, television stations, colleges, or athletic departments, but student athletes (2005, p. 30).

At this point in time, male athletes and men's sports coaches continue to file lawsuits challenging the application of Title IX to intercollegiate athletics. Despite the anger generated over the elimination of men's sports teams, all indications show that col- lege athletic departments will have to continue to make Title IX compliance a top priority when allocating resources and bal- ancing budgets. Although future lawsuits might slightly alter protocols for complying with Title IX, the general spirit of the legislation with its absolute insistence on gender equity will almost certainly remain unchanged.

Terms & Concepts

Educational Institution: A local educational agency (LEA), meaning a school district that supervises public elementary and secondary schools; a preschool; a private elementary or second- ary school; any institute of undergraduate or graduate higher education; or any institute of professional or vocational educa- tion.

Gender Equity: The equal and fair assignment of resources, opportunities, and decision-making responsibilities to both men and women.

Nonrevenue Sports: Often referred to as Olympic sports, this group includes swimming, wrestling, and men's gymnastics, among others. These sports do not typically generate revenue at the college level.

Revenue Sports: Collegiate level sports such as football and basketball, which sometimes (but not always) generate revenue through ticket sales or participation in major tournaments.

Sex-Based Discrimination: Situation in which the sex of an individual either directly or indirectly results in their receiving unequal treatment, all other factors being equal.

Three-Part Test: Devised by the U.S. Department of Education's Office for Civil Rights, it is the primary means used to gauge institutional compliance with Title IX's athletic provisions.

US Department of Education's Office for Civil Rights: The mis- sion of this government office is to ensure that all citizens are given equal access to education. This office assists those who

face discrimination in education by resolving discrimination complaints and by attempting to prevent discrimination. The Office does this in part by helping institutions to reach voluntary compliance with all civil rights laws.

Bibliography

Anderson, D., Cheslock, J., & Ehrenberg, R. (2006) Gender equity in intercollegiate athletics: Determinants of Title IX compliance. Journal of Higher Education, 77 (2), 225-250. Retrieved March 16, 2007 from EBSCO Online Database Education Research Complete http://search. ebscohost.com/login.aspx?direct=true&db=ehh&AN=199 88333&site=ehost-live

Burnett, S. (2003, June 9). Revolution number IX. Community College Week, 15 (22), 6-9. Retrieved March 16, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=t rue&db=ehh&AN=10064699&site=ehost-live

Darden, E. (2007). Even out the playing field. American School Board Journal, 194 (2), 41-42. Retrieved March 16, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.asp x?direct=true&db=ehh&AN=23639598&site=ehost-live

Fagan, K., & Cyphers, L. (2012, April 29). Five myths about Title IXZ. ESPN W. Retrieved December 12, 2013, from http://espn.go.com/espnw/title-ix/article/7729603/five- myths-title-ix

Kane, Mary Jo. (2012, September ). Title IX at 40: Examining mysteries, myths, and misinformation surrounding the historic federal law.Fortieth Anniversary of Title IX: Status of Girls’ and Women’s Sports Participation, 13(2), 2–9. Retrieved December 12, 2013, from https://www.presidentschallenge.org/informed/digest/ docs/201209digest.pdf

Ladda, Shawn. (2012, September ). Examining Title IX at 40: Historical development, legal implications, and gover- nance structures.Fortieth Anniversary of Title IX: Status of Girls’ and Women’s Sports Participation, 13(2), 10–20. Retrieved December 12, 2013, from https://www.presi- dentschallenge.org/informed/digest/docs/201209digest.pdf

McAndrews, P. J. (2012). Keeping Score: How universities can comply with Title IX without eliminating men's collegiate athletic programs. Brigham Young University Education & Law Journal, (1), 111–140. Retrieved December 13, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=t rue&db=ehh&AN=74995628

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National Women’s Law Center. (2012, January 30). Debunking the myths about Title IX and athletics. Title IX Fact Sheet. Retrieved December 12, 2013, from http://www.nwlc.org/ resource/debunking-myths-about-title-ix-and-athletics

Pieronek, C. F. (2012). The 2010 "dear colleague" letter on Title IX compliance for college athletic programs: Pointing the way to proportionality . . . again. Journal of College & University Law, 38(2), 277–318. Retrieved December 13, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost. com/login.aspx?direct=true&db=ehh&AN=75378461

Porto, B. (2005). Changing the game plan: A participation model of college sports. Phi Kappa Phi Forum, 85 (3), 28-31. Retrieved March 16, 2007 from EBSCO Online Database Education Research Complete. http://search. ebscohost.com/login.aspx?direct=true&db=ehh&AN=189 73859&site=ehost-live

Stromquist, N. P. (2013). Education policies for gender equity: Probing into state responses. Education Policy Analysis Archives, 21(65), 1–28. Retrieved December 13, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=t rue&db=ehh&AN=90024100

Suggs, W. (2002, June 21). Title IX at 30. Chronicle of Higher Education, 48 (41), A38-41. Retrieved March 16, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=t rue&db=ehh&AN=6884866&site=ehost-live

U.S. Department of Education. (1997). Title IX: 25 years of progress. Washington, D.C. Retrieved March 16, 2007, from http://www.ed.gov/pubs/TitleIX/index.html

U.S. Department of Education, Office for Civil Rights. (1980). Title IX regulations. Washington, D.C. Retrieved March 16, 2007, from http://www.usdoj.gov/crt/cor/coord/titleix. htm

U.S. Department of Education, Office for Civil Rights. (2005). Additional clarification of intercollegiate athletic policy: Three-part test - Part three. Washington, D.C. Retrieved

March 16, 2007, from http://www.ed.gov/about/offices/list/ ocr/docs/title9guidanceadditional.html

U.S. Department of Justice. (2001). Title IX legal manual. Washington, D.C. Retrieved March 16, 2007, from http:// www.usdoj.gov/crt/cor/coord/titleix.htm