Title IX is a portion of the Education Amendments of 1972, Public Law No. 92-318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. sections 1681 through 1688, U.S. legislation also identified by the name of its principal author as the Patsy T. Mink Equal Opportunity in Education Act. It states (in part) that
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity
Although the Civil Rights Act of 1964 was written in order to end discrimination based on religion, race, color, or national origin, the act also energized the women's rights movement, which had somewhat slowed after women's suffrage in 1920. While Title IX is best known for its impact on high school and collegiate athletics, the original statute made no explicit mention of sports.
In 1967, President Johnson issued a series of executive orders in order to make some clarifications. Before these clarifications were made, the National Organization for Women (NOW) persuaded President Johnson to include women in his executive orders. Most notable is Executive Order 11375, which required all entities receiving federal contracts to end discrimination on the basis of sex in hiring and employment.
In 1969, Bernice Sandler used the executive order to help her fight for her job at the University of Maryland. She used university statistics showing how female employment at the university had plummeted as qualified women were replaced by men. Sandler brought her grievance to the Department of Labor's Office for Federal Fair Contracts Compliance where she was encouraged to file a formal complaint. Citing inequalities in pay, rank, admissions and much more, Sandler began to file complaints not only against the University of Maryland but numerous other colleges as well. Working in conjunction with NOW and Women's Equity Action League (WEAL), Sandler filed 269 complaints against colleges and universities.
In 1970, Sandler joined Representative Edith Green's Subcommittee on Higher Education and sat in on the congressional hearings where women's rights were discussed. It was in the congressional hearings that Green and Sandler first proposed Title IX. An early draft was prepared by Congresswoman Patsy T. Mink, with the assistance of Congresswoman Green. In the hearing there was very little mention of athletics. Their focus was more specifically on the hiring and employment practices of federally financed institutions. The proposed Title IX created much buzz and gained a lot of support.
The first person to introduce Title IX in Congress was its author and chief Senate sponsor, Senator Birch Bayh of Indiana.
At the time, Bayh was working on numerous constitutional issues related to women's rights, including the Equal Rights Amendment, to build "a powerful constitutional base from which to move forward in abolishing discriminatory differential treatment based on sex." As they were having some difficulty getting the ERA out of committee, the Higher Education Act of 1965 was on the floor for reauthorization, and on February 28, 1972, Senator Bayh introduced the ERA's equal education provision as an amendment.
In his remarks on the Senate floor, Bayh said, "We are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again. The desire of many schools not to waste a 'man's place' on a woman stems from such stereotyped notions. But the facts absolutely contradict these myths about the 'weaker sex' and it is time to change our operating assumptions."
"While the impact of this amendment would be far-reaching," Bayh concluded, "it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work."
Title IX became law on June 23, 1972. When President Nixon signed the bill, he spoke mostly about desegregation busing and not at all about educational access for women, which told Senator Bayh that this important moment in so many women's lives may have been lost upon the president.
The wording of Title IX is very brief, requiring specific language and clarifications to be articulated in its implementing regulations. President Nixon directed the Department of Health, Education and Welfare (HEW) to carry this out.
Concern over how Title IX would affect men's athletics prompted some to look for ways to limit the influence of Title IX, and Senator Bayh spent the next three years keeping watch over HEW to get regulations formulated that carried out its legislative intent of eliminating discrimination in higher education on the basis of sex. When they were issued in summer 1975 they were contested, and hearings were held by the House Subcommittee on Equal Opportunities on the discrepancies between the regulations and the law. Implementation by colleges and universities also had to be monitored, although many were working to comply. One such attempt was made in 1974 by Senator John Tower who introduced the Tower Amendment, which would have exempted revenue-producing sports from Title IX compliance. Later that year the Tower Amendment was rejected and the Javits Amendment, proposed by Senator Jacob Javits, stating that the HEW must include “reasonable provisions considering the nature of particular sports,” was adopted in its place.
In June 1975, HEW published the final regulations detailing how Title IX would be enforced. The regulations were codified in the Federal Register in Volume 34, Part 106. It was not until this step was completed that many people truly understood the ramifications of Title IX as it would apply to college athletics. Universities receiving Federal financial assistance were given three years to comply with the Title IX regulations. The NCAA claimed that the implementation of Title IX was illegal. A revised Tower Amendment was proposed and many debates occurred[vague] but Title IX stood.
In 1980, HEW was split into two separate agencies in accordance with the Department of Education Organization Act - the Department of Health and Human Services (HHS) and the Department of Education (ED). Oversight of Title IX enforcement and implementation was given to ED's Office for Civil Rights (OCR).
The Civil Rights Restoration Act of 1988 was passed in response to the U.S. Supreme Court's 1984 ruling Grove City College v. Bell in which the Court held that Title IX applied only to those programs receiving direct federal aid. The case reached the Supreme Court when Grove City College disagreed with the Department of Education that it was required to comply with Title IX. Grove City College was not a federally funded institution; however, they did accept students who were receiving Basic Educational Opportunity Grants through a Department of Education program. The Department of Education's stance was that, because some of its students were receiving federal grants, the school was receiving federal assistance and Title IX applied to it. The Court decided that since Grove City College was only receiving federal funding through the grant program, only that program had to be in compliance. The ruling was a major victory for those opposed to Title IX, as it made many institutions' sports programs outside of the rule of Title IX and, thus, reduced the scope of Title IX. The ruling, however, was short-lived. The Civil Rights Restoration Act was passed in 1988 which restored Title IX coverage to every educational institution's programs if the institution receives any federal assistance, whether direct or indirect.
In 1994, the Equity in Athletics Disclosure Act, sponsored by congresswoman Cardiss Collins, required federally assisted higher education institutions to disclose information on roster sizes for men's and women's teams, as well as budgets for recruiting, scholarships, coaches' salaries, and other expenses, annually.
On November 24, 2006, the Title IX regulations were amended to provide greater flexibility in the operation of single-sex classes or extracurricular activities at the primary or secondary school level.
The legislation covers all educational activities, and complaints under Title IX alleging sex discrimination in fields such as science or math education, or in other aspects of academic life such as access to health care and dormitory facilities, are not unheard of. It also applies to non-sport activities such as school band and clubs; however, social fraternities and sororities, sex-specific youth clubs such as Girl Scouts and Boy Scouts, and Girls State and Boys State are specifically exempt from Title IX requirements.
Title IX applies to an entire school or institution if any part of that school receives federal funds; hence, athletic programs are subject to Title IX, even though there is very little direct federal funding of school sports.
The regulations implementing Title IX require all universities receiving federal funds to perform self-evaluations of whether they offer equal opportunities based on sex and to provide written assurances to the Dept. of Education that the institution is in compliance for the period that the federally funded equipment or facilities remain in use. With respect to athletic programs, the Dept. of Education evaluates the following factors in determining whether equal treatment exists:
Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary [of Education for Civil Rights] may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
- Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
- The provision of equipment and supplies;
- Scheduling of games and practice time;
- Travel and per diem allowance;
- Opportunity to receive coaching and academic tutoring on mathematics only;
- Assignment and compensation of coaches and tutors;
- Provision of locker rooms, practice and competitive facilities;
- Provision of medical and training facilities and services;
- Provision of housing and dining facilities and services;
Although the most well-known application of Title IX regards athletics, there are several protections the law specifically delineates. Section 106.40 protects pregnant and parenting students from discrimination based on pregnant status, marital status, or parenthood . Their condition must be treated as any other medical condition. Students may not be excluded from any activity based on their condition of pregnancy, parenthood, or marital status. If they attend a separate facility, they must elect to do so voluntarily, and the facility must provide comparable programs.
HEW's 1979 Policy Interpretation articulated three ways compliance with Title IX can be achieved. This became known as the "three-part test" for compliance. A recipient of federal funds can demonstrate compliance with Title IX by meeting any one of the three prongs.
Since Title IX was passed into law there have been many court cases claiming non-compliance. One of the most notable cases is Franklin vs. Gwinnett County, was brought to court in 1992. The decision in this case required that punitive damages should be awarded to plaintiffs when Title IX is intentionally avoided. In addition, one year later in the Favia vs Indiana University of Pennsylvania the court of appeals ruled that financial difficulties is not an excuse for non-compliance.
In one specific instance, Title IX was instrumental in a court case involving Louisiana State University (LSU). In 1996, a federal court referenced Title IX in ruling that LSU violated the civil rights of female athletes by refusing to fund a trip to a women's volleyball tournament in Hawaii, when earlier in the year, travel for a men's basketball tournament was funded. Since this ruling, LSU has made changes in its athletic programs to achieve compliance and is one of only three NCAA programs that are 100% self funded and that do not accept financial contributions from the university or government.
In an "unusual" case, Title IX was invoked to justify a school's decision to upgrade its football program from Division I FCS (formerly I-AA) to Division I FBS (formerly I-A). The Western Kentucky University Board of Regents approved this move in November 2006, to take effect in 2009. At the time of the vote, WKU was purportedly out of Title IX compliance because it had a disproportionately large number of female scholarship athletes. By upgrading football, it increased the percentage of male athletes on scholarship. However, the following year, it eliminated its men's soccer team.
More recently, the Associated Press reported in May 2011 that the Department of Education was investigating the University of Delaware (UD) for potential sex discrimination against men, following a complaint by members of the school's men's cross country and track teams. UD had announced in January 2011 that it would be eliminating both teams at the end of the current school year.
Though views differ as respects the impact of Title IX, discussion typically focuses on whether and to what extent Title IX has resulted in increased athletic opportunities for females, and whether and to what extent Title IX has resulted in decreased athletic opportunities for males.
Advocates of Title IX's current interpretation cite increases in female athletic participation, and attribute those increases to Title IX. One study, completed in 2006, pointed to a large increase in the number of women participating in athletics at both the high school and college level. The number of women in high school sports had increased by a factor of nine, while the number of women in college sports had increased by more than 450%. A 2008 study of intercollegiate athletics showed that women's collegiate sports has grown to 9,101 teams, or 8.65 per school. The five most frequently offered college sports for women are, in order: (1) Basketball, 98.8% of schools have a team, (2) Volleyball, 95.7%, (3) Soccer, 92.0%, (4) Cross Country, 90.8%, and (5) Softball, 89.2%.
At the same time, many contend that the current interpretation of Title IX by the OCR has resulted in the dismantling of men's programs, despite strong participation in those sports. For example, though interest in the sport of wrestling has consistently increased at the high school level since 1990,  scores of colleges have dropped their wrestling programs during that same period. The OCR's three-prong test for compliance with Title IX often is cited as the reason for these cuts. Wrestling historically was the most frequently dropped sport, but other men's sports later overtook the lead, such that according to the NCAA, the most-dropped men's sports between 1987 and 2002 were as follows: Cross country (183), indoor track (180), golf (178), tennis (171), rowing (132), outdoor track (126), swimming (125) and wrestling (121).
A guideline announced by Vice President Joe Biden on 4 April 2011, on sexual harassment or violence, required that institutions conduct investigations and discipline on the preponderance of the evidence standard, rather than that of beyond reasonable doubt. The use of such a standard by the University of North Dakota has been criticized by the Foundation for Individual Rights in Education in the case of Caleb Warner, who was suspended for three years in January 2010 on the basis of a report by a complainant who was subsequently charged with filing a false report by state police, a decision which the University has refused to reconsider.
Title IX has been a source of controversy in part due to claims that the OCR's current interpretation of Title IX, and specifically its three-prong test of compliance, is no longer faithful to the anti-discrimination language in Title IX's text, and instead discriminates against men and has contributed to the reduction of programs for male athletes.
Critics of the three-prong test contend that it operates as a "quota" in that it places undue emphasis on the first prong (known as the "proportionality" prong), which fails to take into account any differences in the genders' respective levels of interest in participating in athletics. Instead it requires that the genders' athletic participation be substantially proportionate to their enrollment, without regard to interest. Prong two is viewed as only a temporary fix for universities, as universities may only point to past expansion of opportunities for female students for a limited time before compliance with another prong is necessary. Prong three likewise fails to consider male athletic interest, as it requires that the university fully and effectively accommodate the athletic interests of the "underrepresented sex," despite the fact that ED regulations expressly require that the OCR consider whether the institution "effectively accommodate[s] the interests and abilities of members of both sexes." As such, with a focus on increasing female athletic opportunities without any counterbalance to take male athletic interest into consideration, critics maintain that the OCR's three-prong test actually operates to discriminate against men.
Defenders of the three-prong test counter that the genders' differing athletic interest levels is merely a product of past discrimination, and that Title IX should be interpreted to maximize female participation in athletics irrespective of any existing disparity in interest. Thus while defenders argue that the three-prong test embodies the maxim that "opportunity drives interest," critics argue that the three-prong test goes beyond Title IX original purpose of preventing discrimination, and instead amounts to an exercise in which athletic opportunities are taken away from male students and given to female students, despite the comparatively lower interest levels of those female students. Academy Award winning author and self-described women's rights advocate John Irving opined in a New York Times column that on this topic, women's advocates were being "purely vindictive" in insisting that the current OCR interpretation of Title IX be maintained.
On March 17, 2005, OCR announced a clarification of prong three of the three-part test of Title IX compliance. The guidance concerned the use of web-based surveys to determine the level of interest in varsity athletics among the under-represented sex. Opponents of the clarification – including the NCAA Executive Committee, which issued a resolution soon afterward asking Association members not to use the survey – claimed the survey was flawed in part because of the way it counted non-responses. On April 20, 2010, the U.S. Department of Education's Office for Civil Rights abandoned the 2005 clarification that allowed institutions to use only Internet or e-mail surveys to meet the interests and abilities (third prong) option of the three-part test for Title IX compliance.
On April 20, 2010, the United States Commission on Civil Rights weighed in on the OCR's three-prong test and procedures for implementing it. On that date, the Commission on Civil Rights released several recommendations on Title IX policy to address what it termed "unnecessary reduction of men's athletic opportunities." The Commission advocated use of surveys to measure interest, and specifically recommended that the Department of Education's regulations on interest and abilities be revised "to explicitly take into account the interest of both sexes rather than just the interest of the underrepresented sex," almost always females.
On June 27, 2002, Secretary of Education Rod Paige announced the creation of the Commission on Opportunity in Athletics (COA), a blue-ribbon panel to examine ways to strengthen enforcement and expand opportunities to ensure fairness for all college athletes. Co-chairs for the COA were Cynthia Cooper and Ted Leland. The purpose of the Commission was to collect information, analyze issues, and obtain broad public input directed at improving the application of Federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX.
The panel held four town hall meetings (in Atlanta, Chicago, Colorado Springs, and San Diego) to allow the general public to comment on the past, present, and future of Title IX. On February 26, 2003 the COA issued its final report. The COA provided twenty-three recommendations to the Secretary of Education. Although many of the recommendations were unanimous, some of the more controversial recommendations passed by an 8-5 vote. These dealt with considering non-scholarship athletes in prong one of the three-part test for compliance and allowing interest surveys to determine compliance with prong three. On the same day, Secretary of Education Rod Paige announced he would only consider the unanimous recommendations, which provided that the Department of Education (1) reaffirm its strong commitment to equal opportunity for girls and boys, women and men; (2) aggressively enforce Title IX in a uniform way across the nation; (3) give equal weight to all three prongs of the test governing Title IX compliance; and (4) encourage schools to understand that the Department of Education disapproves of cutting teams in order to comply with Title IX.
Because Title IX only addresses public and private schools that receive federal funding, several states have enacted similar laws to prohibit discrimination based on sex regardless of whether the school receives federal funding. As of 2008,[dated info] about a third of the states have done so, including Alaska, California, Florida, Georgia, Hawaii, Illinois, Iowa, Maine, Minnesota, Nebraska, New Jersey, New Mexico, New York, Rhode Island, South Dakota, Washington, and Wisconsin.
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