Title IX, as a federal law enforced in the United States of America is considered a portion of the United States Education Amendments of 1972. This is Public Law No. 92-318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681-1688. It was co-authored and introduced by Senator Birch Bayh in the U.S. Senate while being renamed the Patsy Mink Equal Opportunity in Education Act in 2002 after Patsy Mink, its late U.S. House co-author and sponsor. The following below is the original text as made signed into law by U.S. President Richard Nixon in 1972:
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 receiving Federal financial assistance.
Video Title IX
Historical background
Foundations and hearings
Title IX was written as a byproduct of the successful passing of the Civil Rights Act of 1964 which was written in order to end discrimination in various fields based on biological sex, perceived/actual religion, race or color, perceived or actual age, and national origin in the areas of employment, and public accommodation. In this Act, it did not specifically include biological sex discrimination for those who were not employed at educational institutions. As a result, it empowered classical feminists during the early 1970s to lobby, or influence, federal leaders to draft a separate law that includes this demographic which was mostly applied to athletics, implicitly, at the time. This demographic was by far mostly the student demographic enrolled at U.S. schools, and universities. It did not apply to employees as they were protected under the Civil Rights Act of 1964. While Title IX is best known for its impact on high school and collegiate athletics, the original statute made no explicit mention of sports, but it was implied as this was the lobbying, or influence, was based upon. It wasn't until U.S. President Barack Obama who redefined, or refocused, this law to apply to a host of things like sexual orientation, gender identity, physical/mental handicap, among others through a series of "Dear Colleague" letters that are still to this day in legal limbo. Under U.S. President Donald Trump, this has been rescinded back to the original protections under the Civil Rights Act of 1964.
In 1967, U.S. President Lyndon Johnson wrote a series of executive orders involving the Act to make some clarifications. Before these clarifications were made, the National Organization for Women (NOW) persuaded him through successful lobbying, or influencing, his personal aides or Members of Congress to include the addition of biological females, or women. One of the most notable orders was entitled Executive Order 11375 which required all entities receiving federal contracts to end discrimination on the basis of sex in hiring and employment. In 1969, a notable example of its successes was a private female citizen named Bernice Sandler who used the executive order to retain her job, or tenure, at the University of Maryland. She utilized university statistics in showing how biological female employment at the university had plummeted as qualified biological women were replaced by biological men. Sandler then brought her complaints to the Department of Labor's Office for Federal Fair Contracts Compliance where she was now encouraged to file a formal complaint; in later citing inequalities in pay, rank, admissions, among others. Sandler soon began to file complaints not only against the University of Maryland, but to many other colleges as well while working in conjunction with NOW and the Women's Equity Action League (WEAL). Sandler then later filed two-hundred and sixty-nine (269) complaints against colleges and universities to only create a sort of movement of her own, which led to the events in 1970. In 1970, Sandler joined U.S. House Representative Edith Green's Subcommittee on Higher Education of the Education and Labor Committee, and observed corresponding congressional hearings relating to women's issues on employment,and equal opportunity. It was in these hearings that Green and Sandler initially proposed the idea of Title IX. An early legislative draft was then authored by Representative Patsy Mink with the assistance of Representative Green. In the hearing, there were implicit mentions of athletics, but the overall idea behind the draft was a progressive one in some what instituting a sort of affirmative action for biological females in all aspects of American education; as well as employment opportunities exclusively for biological women.
Steps from a draft to legislative act to public law
Mink's initial draft of Title IX was formally introduced in Congress by Senator Birch Bayh of Indiana in 1971 who then was its chief Senate sponsor with respect to congressional debate. At the time, Bayh was working on numerous constitutional issues related to women's issues regarding employment, and sex discrimination -- including but not limited to the revised draft of the Equal Rights Amendment. It was to build "a powerful constitutional base from which to move forward in abolishing discriminatory differential treatment based on [biological] sex". As he was having partisan difficulty in later getting the ERA Amendment out of committee, the Higher Education Act of 1965 was on the Senate Floor for re-authorization; and on 28 February 1972, Bayh re-introduced a provision found in the original/revised ERA bill as an amendment. which would become Title IX. In his remarks on the Senate Floor, Bayh states, "we are all familiar with the stereotype [that] women [are] pretty things who go to college to find a husband, [and whom] 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 [is to] 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." He then furthers. "While the impact of this amendment would be far-reaching. 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 then became public law on 23 June, 1972. When U.S. President Nixon signed the bill, he spoke mostly about desegregation busing, but did not mention the expansion of educational access for women he had enacted.
Implementation
When it comes to the wording of Title IX, it is unusually very brief and thus required specific, and concise language as well as clarifications to be soon articulated in its implementing regulations. U.S. President Nixon later directed the Department of Health, Education and Welfare (HEW) to carry this out. As a result, this law affected the statistical proportion of men's athletics; not its importance nor popularity. It soon prompted concern by critics, and as those concerns grew; they found ways to limit its impact. Senator Bayh later spent the next three years in keeping watch over HEW in order to get further regulations passed through the U.S. Congress; in which were soon carried out with its legislative intent of eliminating sex discrimination in educational institutions on the basis of biological sex. When these regulations were issued during Summer 1975, they were partisan contested; thus resulted in hearings that were held by the House Subcommittee on Equal Opportunities on the discrepancies between the regulations, and the law. Then in 1974, U.S. Senator John Tower introduced the Tower Amendment which would have exempted revenue-producing sports from Title IX compliance. Later that year, the Tower Amendment was thus rejected and the Javits Amendment soon proposed in return by U.S. Senator Jacob Javits in now stating that HEW must include "reasonable provisions considering the nature of particular sports" adopted in its place. In June 1975, HEW published the final regulations detailing how Title IX would be enforced. These regulations were codified in the Federal Register in the Code of Federal Regulations Volume 34, Part 106 (34 C.F.R. [https://www.law.cornell.edu/cfr/text/34/106 106] 34 C.F.R. 106 34 C.F.R. 106). It was not until this step was completed that many people truly understood the ramifications of Title IX as it would apply to athletics within educational institutions. Educational institutions receiving Federal financial assistance were given three years to comply with the Title IX regulations during that time as standard in protocol. In reaction, the NCAA (National Collegiate Athletic Association) soon claimed that the implementation of Title IX was illegal with respect to either case law, or constitutionally. They did not provide any concrete evidence. A revised Tower Amendment was then proposed out of successive lobbying of U.S. Congressional members, but Title IX as a whole lawfully stood in-tact.
In 1979 with respect to HEW, under U.S. President Jimmy Carter's administration, they issued further clarification in its Intercollegiate Athletics Policy Interpretation. Then 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). Its responsibility was for Title IX enforcement in educational institutions as it was then delegated to ED's Office for Civil Rights (OCR). These regulations and policy Interpretations soon clarified a number of key issues with respect to endorsing the separation of athletic teams by biological sex. These can be found in 34 C.F.R. 106.41 while comparable facilities can be found in 34 C.F.R. 106.33, and financial assistance in Section 34 C.F.R. 106.37. These subsections explain that evaluating the equality of these sections can be "strictly based on expenditures [which] is an unfair method for evaluating equity." The OCR came up with a way "to investigate" the equality of schools and institutions called, the Investigator's Manual on 28 July 1980. OCR then went further years later in issuing three letters of clarification in 1996, 1998 and 2003 respectively.. The first letter (1996) was written to clarify the proportionality test, the second (1998) to clarify the meaning of "substantially equal," and the third (2003) was to reaffirm the first clarification letter after a number of commission discussions and hearings. Any other regulations have never been adequately codified in any shape or form after these years in the major sense; even under U.S. President Barack Obama, the interpretations found under Title IX is to be considered a legal gray area, and thus fraudulent until a federal court makes an official opinion.
Further legislation and clarification (additional)
The Civil Rights Restoration Act of 1988 is tied to Title IX which was passed in response to the U.S. Supreme Court's 1984 ruling Grove City College v. Bell. The Court held that Title IX applied only to those programs receiving direct federal aid. This case was initially reached by the Supreme Court when Grove City College disagreed with the Department of Education's assertion 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 thus 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 that only this program had to be in compliance. This ruling was a major victory for those opposed to Title IX as it then made many athletic programs outside the purview of Title IX, and thus reduced its scope. Grove City's victory, however, was short-lived. The Civil Rights Restoration Act successfully passed in 1988 which extended Title IX coverage to all programs of any educational institution that receives any federal assistance, both direct and indirect. In 1994, the Equity in Athletics Disclosure Act, sponsored by congresswoman Cardiss Collins required that federally assisted educational institutions disclose information on roster sizes for men's and women's athletic teams; as well as budgets for recruiting, scholarships, coaches' salaries, and other expenses, annually. In October 2002, less than a month after the death of U.S. Rep. Patsy Mink, the U.S. Congress passed a resolution to rename Title IX the "Patsy Takemoto Mink Equal Opportunity in Education Act," which President George W. Bush signed into law. On November 24, 2006, 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; and this was largely to introduce federal abstinent-only programs; thus explains why it was supported by then President Bush.
Maps Title IX
Impact on American Schools
In 2014 and 2016, non-legal binding guidelines were issued by the U.S. Department of Education stating that transgender students are protected from sex-based discrimination under Title IX. It instructed public schools to treat transgender students consistent with their gender identity in academic life. A student who identifies as a transgender boy, for instance, is allowed entry to a boys-only class, and a student who identifies as a transgender girl is allowed entry to a girls-only class. This also applies to academic records if that student is over the age of eighteen at a university. The memo states in part that "[a]ll students, including transgender students, or students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender, or gender non-conforming, consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes."
In February 2017, the departments of justice and education under the Trump administration withdrew the guidance on gender identity issued by the Obama administration.
Impact on Athletics with Respect to Male-to-Female Enrollment
Though views differ as respects the impact of Title IX, discussion typically focuses on whether or not 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. In addition, the legislation had impacts on aspects other than athletes. The increased exposure of female sports led to increased dominance by males of the governance of female athletics. For example, the male-dominated NCAA, which had been content to let the female-dominated AIAW run female championships, decided to offer female championships, thus leading to the eventual demise of the AIAW.
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 non-legal binding 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.
Concerning male athletics with respect to diversity of teams
Some believe that the increase in athletic opportunity for girls in high school has come at the expense of boys' athletics. For example, the College Sports Council has stated, "Nationwide, there are currently 1.3 million more boys participating in high school sports than girls. Using a gender quota to enforce Title IX in high school sports would put those young athletes at risk of losing their opportunity to play." High school participation rates from the National Federation of High School associations report that in 2010-11, there were 4,494,406 boys and 3,173,549 girls participating in high school athletics.
There have been different interpretations regarding Title IX's application to high school athletics. The American Sports Council sued the Department of Education in 2011 seeking a declaratory judgment that its policy interpreting Title IX's requirement for equity in participation opportunities is limited to colleges and universities. The American Sports Council argued that "The three-part test and its encouragement of quotas, has no relevance to high schools or high-school sports, and no federal regulation or interpretation has ever said that high schools must abide by the three-part test". On the other hand, the Department of Education insists that Title IX is a "valuable tool" for ensuring a level playing field for all students" and "plays a critical role in ensuring a fundamental level of fairness in America's schools and universities".
Between 1981 and 1999 university athletic departments cut 171 men's wrestling teams, 84 men's tennis teams, 56 men's gymnastics teams, 27 men's track teams, and 25 men's swimming teams. While some teams--both men's and women's--have been eliminated in the Title IX era, both sexes have seen a net increase in the number of athletic periods over a similar time period as the above quote, and by studies including more recent data, though when total enrollment which had likewise increased is controlled for, only women had an increase in participation.
Because teams vary widely in size, it is more appropriate to compare the number of total participation opportunities. Additionally, the total number of college participation opportunities has increased for both sexes in the Title IX era, though solely for women when increased enrollment is accounted for, as men's participation remained static relative to university enrollment, and men's opportunities outnumber women's by a wide margin.
The Women's Sports Foundation reported in a 2007 study of athletic opportunities at NCAA institutions that over 150,000 female athletic opportunities would need to be added in order to reach participation levels proportional to the female undergraduate population. The same study found that men's athletics also receives the lion's share of athletic department budgets for operating expenses, recruiting, scholarships, and coaches salaries.
Impact on sexual harassment and sexual violence interpretations (under U.S. President Barack Obama)
Title IX applies to all educational programs and all aspects of a school's educational system. Civil rights activists and organizations such as the American Civil Liberties Union (ACLU) maintain that "when students suffer sexual assault and harassment, they are deprived of equal and free access to an education." Further, according to an April 2011 letter issued by the Department of Education's Office for Civil Rights, "The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime."
The letter, known colloquially as the "Dear Colleague" letter, states that it is the responsibility of institutions of higher education "to take immediate and effective steps to end sexual harassment and sexual violence." The letter illustrates multiple examples of Title IX requirements as they relate to sexual violence, and makes clear that, should an institution fail to fulfill its responsibilities under Title IX, the Department of Education can impose a fine and potentially deny further institutional access to federal funds.
On March 15, 2011, Yale undergraduate student and alleged sexual violence survivor Alexandra Brodsky filed a Title IX complaint along with fifteen fellow students alleging Yale "has a sexually hostile environment and has failed to adequately respond to sexual harassment concerns."
In October 2012, an Amherst College student, Angie Epifano, wrote an explicit, personal account of her alleged sexual assault and the ensuing, "appalling treatment" she received when coming forward to seek support from the College's administration. In the narrative, Epifano alleged that she was raped by a fellow Amherst student and described how her life was affected by the experience; she stated that the perpetrator harassed her at the only dining hall, that her academics were negatively affected, and that, when she sought support, the administration coerced her into taking the blame for her experience, and ultimately institutionalized her and pressured her to drop out.
- "The fact that such a prestigious institution could have such a noxious interior fills me with intense remorse mixed with sour distaste. I am sickened by the Administration's attempts to cover up survivors' stories, cook their books to discount rapes, pretend that withdrawals never occur, quell attempts at change, and sweep sexual assaults under a rug. When politicians cover up affairs or scandals the masses often rise up in angry protestations and call for a more transparent government. What is the difference between a government and the Amherst College campus? Why can't we know what is really happening on campus? Why should we be quiet about sexual assault?"
When the Amherst case reached national attention, Annie E. Clark and Andrea Pino, two women who were allegedly sexually assaulted at the University of North Carolina at Chapel Hill connected with Amherst student, Dana Bolger, and Brodsky to address the parallel concerns of hostility at their institution, filing Title IX and Clery Act complaints against the university on January 2013, both leading to investigations by the U.S. Department of Education.
Following the national prominence of the UNC Chapel Hill case, organizers Pino and Clark went on to coordinate with students at other schools; in 2013, complaints citing violations of Title IX were filed by Occidental College (on April 18), Swarthmore College and the University of Southern California (on May 22). These complaints, the resulting campaigns against sexual violence on college campuses, and the organizing of Bolger, Brodsky, Clark, Pino and other activists led to the formation of an informal national network of activists. Bolger and Brodsky also started Know Your IX, an organization of student activists focused on legal education and federal and state policy change.
In addition to its use within formal complaints submitted to the Department of Education, Title IX has been utilized in civil litigation. In 2006, a federal court found that there was sufficient evidence that the University of Colorado acted with "deliberate indifference" toward students Lisa Simpson and Anne Gilmore, who were sexually assaulted by student football players. The university settled the case, promising to change its policies and pay $2.5 million in damages. In 2008, Arizona State University was the subject of a lawsuit that alleged violations of rights guaranteed by Title IX: the university expelled a football player for multiple instances of severe sexual harassment, but readmitted him; he went on to rape a fellow student in her dorm room. Despite its claim that it bore no responsibility, the school settled the lawsuit, agreeing to revise and improve its official response to sexual misconduct and to pay the plaintiff $850,000 in damages and fees.
Controversy with respect to OCR's Dear Colleague letter and three-prong test
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 (in spite of the third prong, which focuses on any differences in the genders' respective levels of interest in participation). 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. Critics say that prong three likewise fails to consider male athletic interest in spite of its gender-neutral language, 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 are merely a product of past discrimination, and that Title IX should be interpreted to maximize female participation in athletics regardless 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. 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 underrepresented 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.
In 2011 the Dear Colleague letter, which mentioned Title IX, stated that sexual violence also falls into the category of sexual discrimination, which would not be tolerated. In the letter it stated that it was the duty of colleges and universities to enforce consequences if there were any students who had been victims to sexual violence, and that it was also the responsibility of these institutions to prevent any sexual violence to begin with. Schools were being threatened that if they were not in compliance with what the Dear Colleague Letter stated that they would lose all of their federal funding. Many schools were being investigated by the O.C.R, and several came under scrutiny for non-compliance. There have been several lawsuits that state that the O.C.R unlawfully made the decision to have contents of the Dear Colleague Letter enforced, and some cited that there was unfair treatment.
There are a number of cases regarding the use of bathrooms by transgender individuals, and there is a debate about whether or not a school administrator denying an individual their right to use their bathroom of choice qualifies as a Title IX discrimination case. The Obama administration, in interpreting Title IX to include "gender identity and expression" under the broader category of "sex," claimed that it wanted to make sure that all sexes and genders feel safe when using these restrooms.
On September 22, 2017, the US Department of Education, headed by Betsy DeVos, announced it would rescind portions of Title IX dealing with the burden of proof needed in campus sexual assault investigations.
Legacy and recognition
On the twenty-fifth anniversary of Title IX the National Women's Law Center lodged twenty-five complaints with the U.S. Department of Education's Office for Civil Rights.
There were several events praising the 40th anniversary of Title IX in June 2012. For example, the White House Council on Women and Girls hosted a panel to discuss the life-altering nature of sports. Panelists included Billie Jean King, All-American NCAA point guard Shoni Schimmel of the University of Louisville, and Aimee Mullins, the first double-amputee sprinter to compete in NCAA track and field for Georgetown University.
President Barack Obama wrote a pro-Title IX op-ed published in Newsweek magazine.
The Women's Sports Foundation honored over 40 female athletes.
On June 21, 2012, espnW projected a digital mosaic featuring the largest-ever collection of women and girls' sports images (all of which were submitted by the athletes themselves) onto the First Amendment tablet of the Newseum in Washington, D.C. The mosaic also included photos of espnW's Top 40 Athletes of the Past 40 Years.
ESPN The Magazine produced its first "Women in Sports" issue in June 2012.
Also in June 2012, ESPN Classic first showed the documentary Sporting Chance: The Lasting Legacy of Title IX, narrated by Holly Hunter. It also showed the documentary On the Basis of Sex: The Battle for Title IX in Sports, and other programming related to women's sports.
In 2013 ESPN Films broadcast Nine for IX, a series of documentaries about women in sports. Good Morning America anchor Robin Roberts and Tribeca Productions co founder Jane Rosenthal are executive producers of the series.
Notes
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