22 Title IX: Failure to Perform

Bella Scott

Introduction

Title IX was created in 1972 with the purpose to ban discrimination within the realm of education and occupations. Although the amendment does not specifically pertain to athletics, most of the public opinions regarding the amendment revolves around higher-level athletics at colleges and universities.[1] Title IX has opened a further public discussion about what it means to be a woman in society and puts regulations in place to push society further when it comes to discrimination. Although there are new pathways for women, there is still restraining legislation that acts as a boundary for women who seek to break into new opportunities. This raises the essential question: was the creation of the Title IX act for the purpose of diminishing acts of discrimination or serve to be a place holder to silence the voices of those who want change?

Title IX’s emphasis on women in athletics draws large suspicion regarding the true grounds of the amendment. For example, Title IX never explicitly discusses sports yet most of the subsequent legislation highlights the ways in which Title IX has led to an athletics focus.[2] While the athletic field has grown immensely with women athletes, other fields need to expand as well. The fact that Title IX is only largely propelling women and other races into a more prominent spot in sports and not in many other places of society goes to demonstrate the ways in which Title IX was created as a way to distract the voices of change and to delay the effect of equality among everyone.

For instance, women account for less than 1 in 5 faculty members in STEM-related jobs and that number is even lower for women in engineering.[3] How come when people think Title IX is most closely related to sports? It is because Title IX is not properly accomplishing the advancements for which it was created. In my opinion, Title IX needs to do more. Not only is Title IX not promoting equality in the workplace, but within the realm of Title IX sexual harassment cases, there is much to be changed.

This raises the most critical concern regarding Title IX with the fact that it is too broad. Universities differ in their definitions of what sexual harassment and assault are, as well as in ways to handle and address situations and complaints.[4] Thus creating an unwelcoming environment for sexual assault cases.

Additionally, in 1974 it was deemed that the educators had it at their discretion to decide what to eliminate from the class curriculum. A large concern such as biased courses of study that make others feel discriminated against classroom should fall under that umbrella of Title IX.[5] Overall, Title IX once again fails to accomplish its basic provisions to further excel those in discriminatory positions to feel supported and comfortable in their communities.

Title IX has the ability to create an equal playing field in an array of areas and provide those who are historically marginalized with new opportunities but fail to push beyond sports due to the vagueness of the provisions. As stated within this primary source, more people are attempting to further break down the crumbling walls of Title IX to create more access to discrimination. Title IX is an opportunity for changes and requires correction for it to truly push boundaries and open doors.

Collegiate Sports and Other Title IX Controversies (1974)[6]

By Judith Miller
The two-year-old federal law barring sex discrimination in education promises to advance equal education for women. But whether or not it fulfills its promise depends on the fate of proposed regulations currently being considered by the Department of Health, Education and Welfare (HEW).[7]

The regulations at issue are intended to provide educational institutions guidelines for compliance with Title IX of the Education Amendments of 1972. Title IX prohibits discrimination on the basis of sex in education programs and activities of institutions receiving federal aid. Since their publication for comment four months ago, the regulations have generated more than 5,000 written complaints from legislators, educators, and the public.[8] Educational organizations contend the regulations are overly aggressive and unduly burdensome, while feminist and civil rights groups argue that the proposed regulations are not sufficiently strong to end sex discrimination.

The provisions of Title IX are similar to those of the law approved eight years earlier by Congress- Title VI of the Civil Rights Act which bars federal aid to institutions that engage in discrimination on the basis of race, creed, color, or national origin.[9] Title IX empowers HEW to delay and revoke federal funds from institutions engaging in sex discrimination. In addition, the Department of Justice can file suit if an institution refuses to comply with the law.

Although much of the publicity concerning the proposed regulations has focused on competitive athletics, many other areas would be affected: recruiting and admissions policies, financial aid, student rules and regulations, housing, health care, insurance benefits, and single sex clubs and activities. There appears to be little public interest in the regulations prohibiting different curfew and visitation rules, dress codes, standards of punishment, and course requirements for men and women.

Many of those who feel the regulations provide inadequate protection of women’s rights attribute the deficiencies to the original legislation. They argue that Congress designated exemptions under Title IX that would be unthinkable if applied to discrimination based on race. For example, Title IX specifically exempts all institutions controlled by religious organizations, such as divinity schools, whose tenets are incompatible with complete sexual equality. Also exempted from coverage are military schools whose primary purpose is the training of individuals for the armed forces or merchant marine. Congress also exempted other types of institutions from Title IX admissions regulations, while requiring compliance in all areas other than admissions. As the result of pressure from the education community, private institutions preschools, elementary and secondary schools, and undergraduate institutions and single sex public undergraduate institutions can continue to use sex quotas and to demand higher admissions requirements for aspiring women students.

The U.S. Civil Rights Commission has attacked these legislatively mandated exemptions, arguing that such exclusions can only be explained “by a philosophy that sex discrimination is less invidious than race discrimination/’ Strong objections have also been raised to the regulation affecting curricular materials.[10] The League of Women Voters and other groups have strongly protested the exclusion of textbooks and instructional materials from coverage.[11] Although the regulation preamble concedes that sex stereotyping in curricula is a serious problem, HEW has concluded that specific regulatory provisions would raise fundamental constitutional questions under the First Amendment. Therefore, it has decided to rely on professional educators to eliminate sex bias from such teaching materials.

The American Council on Education has endorsed HEW’s refusal to tackle sex bias in curricular material, but has confined its endorsement to teaching materials intended for use in higher educational institutions.[12] Sheldon Steinbach, ACE staff counselor, believes that precollege institutions may require guidance in this area. “Censorship,” Steinbach recently wrote to HEW, “is not the answer where individuals who have reached maturity can judge written materials and formulate their own ideas from those available in the marketplace.

The decision to exclude textbooks at all levels from nondiscrimination provisions has been supported by the Association of American Colleges, the National Association of State Universities and Land-Grant Colleges, and other representatives of higher education.[13] The National Education Association, however, has urged HEW to publish guidelines for determining sexism in teaching materials for adoption by state and city school systems.[14]

Another hotly contested issue is the exemption of single sex scholarships and financial assistance programs such as those established under foreign governments, wills, or legal trusts. Tailored especially to preserve the prestigious Rhodes fellowships in their present form, this exemption infuriates feminist groups.[15] They argue that financial aid discrimination against women severely limits their access to higher education. The ACE has supported HEW’s exemption of endowed single sex scholarships, but suggests that institutions be permitted to pool scholarship resources by matching single sex dollars generated by endowed trusts with general institutional revenues, and then administering the remainder of the pool in a nondiscriminatory manner. This procedure, they argue, is less expensive than resorting to legal trustbusting which, ACE claims, will only reduce scholarship funds for male and female students alike.

The guidelines’ treatment of pregnancy is another thorny issue. Holly Knox, director of the National Organization for Women’s (NOW) Legal Defense and Education Fund, strongly objects to the planned approach, which regards pregnancy as a temporary disability but requires the woman to give her employer 120 days notice prior to the expected birth of her child. Knox insists that pregnancy, traditionally a rationale for inequitable treatment of women, must be considered a standard temporary disability which imposes no special requirements.

The fight over equal athletic opportunities has become a symbol of the struggle over the ultimate strength of Title IX. Most women’s groups feel that HEW has already substantially capitulated to pressure from the athletic community, while organized sports claims that the regulations impose burdensome requirements that threaten many university athletic programs.

The National Collegiate Athletic Association (NCAA), which regulates intercollegiate athletic competition at its 680 member institutions, is HEW’s harshest critic. The guidelines, the NCAA argues, are not ” rationally related to the objectives of Title IX” and fail to reflect “rational, real differences between male and female athletes and differences related to the nature of particular sports.”

The current regulations permit institutions to select either a single, mixed team or separate teams for males and females for sports based on competitive skills. Although the regulations do not require equal spending on athletics for men and women, they do demand equality in equipment, supplies, and coaching services. The NCAA believes this provision could eventually lead to equal spending and that it would prove disruptive to current athletic programs. The group also argues that revenues produced by popular sports events finance other university sports and recreational activities.

The disparity between athletic programs for men and those for women, especially at university levels, is perhaps the most blatant area of separate and decisively unequal treatment of women. A publication issued by the Association of American Colleges’ Project on the Status and Education of Women notes that at some universities, more than a thousand times as much money is spent for men’s intercollegiate athletics as for women’s. Knox says that although the NCAA preaches that football revenues pay for all other sports, the truth is that in most secondary and postsecondary institutions football is an expensive drain and competes with other sports for scarce resources.

Knox also argues that resistance to change in athletics traditionally a male domain makes this area symbolically crucial. “Women have been socialized,” she says, “to believe that athletics is not an important component of education.” Athletics, and particularly competitive athletics, she contends, develops leadership, competitive spirit, physical prowess, and self confidence in physical accomplishments. “To deny women, many of whom are more athletically inclined than men, the right to compete equally with men in this prestigious area,” says Knox, “will breed psychological inferiority.”

Attempts to weaken Title IX regulations are directed at other areas as well: most prominently, prohibition of single sex social fraternities, sororities, and clubs that receive substantial support from the university. Representative Edith Green (D Oregon) has offered an amendment to this year’s Appropriations Bill that would exclude social clubs and fraternities, Girl Scouts, Boy Scouts, Campfire Girls, the YMCA, the YWCA, and others from Title IX coverage.

Green’s amendment is just one of several legislative efforts to reorient Title IX. Earlier in 1974 Senator John Tower (R-Texas) introduced legislation that would have virtually excluded all intercollegiate activities from Title IX purview. The Tower amendment, however, was deleted in the House-Senate conference.[16] Another unsuccessful effort made by Representative Marjorie Holt (R-Maryland) would have relieved educational institutions of their obligation to maintain records and statistics on sex and race. Without such data, HEW would be unable to evaluate charges of discrimination. Holt intends to reintroduce her bill.

There is little doubt that the regulations to Title IX need substantial revision. Critics on all sides agree that the proposed guidelines are hopelessly vague, that they fail to spell out procedures for compliance or to present a workable timetable for reform, and that they often fail to distinguish between secondary and postsecondary institutions.

Substantial revamping is currently underway. No matter what the regulations ultimately say, however, the predominantly male Congress will have final authority over their content. If the members disapprove of the final document, the regulations will be sent back to HEW and the difficult process of compromise and conciliation will begin anew.

 


Bella Scott is a current first year at Wake Forest University. She hopes to major in Sociology and Minor in Politics while continuing to pursue gender and sexuality studies classes on campus. 

 


  1. Ramirez, Florencio (Larry). “TITLE IX.” GPSolo, Sex and The Law, 27, no. 1 (February 2010): 16–19. https://www.jstor.org/stable/23630054
  2. United States Government. “Title IX.” The United States Department of Justice, August 6, 2015. https://www.justice.gov/crt/title-ix.
  3. Sandberg, Kathryn, and Joseph G. Verbalis. “Sex and the Basic Scientist: Is It Time to Embrace Title IX?” Biology of Sex Differences 4, no. 1 (July 27, 2013): 13. https://doi.org/10.1186/2042-6410-4-13.
  4. Sulfaro, Valerie A., and Rebecca Gill. “Title IX: Help or Hindrance?” Journal of Women, Politics & Policy 40, no. 1 (January 2, 2019): 204–27. https://doi.org/10.1080/1554477X.2019.1565460.
  5. Ramirez, Florencio (Larry). “TITLE IX.” GPSolo, Sex and The Law, 27, no. 1 (February 2010): 16–19. https://www.jstor.org/stable/23630054
  6. Miller, Judith. “Collegiate Sports and Other Title IX Controversies.” Change 6, no. 10 (Winter 1974): 20–23.
  7. HEW was originally a federal agency that sought to administer programs in health, education, and social and economic security. HEW has most recently been split into the Department of Education and the Department of Health and Human Services. Ramirez, Florencio (Larry). “TITLE IX.” GPSolo, Sex and The Law, 27, no. 1 (February 2010): 16–19. https://www.jstor.org/stable/23630054
  8. Title IX is a federal US law that takes away obstacles the create discrimination in carrers and education United States Government. “Title IX.” The United States Department of Justice, August 6, 2015. https://www.justice.gov/crt/title-ix.
  9. Title IV of the Civil Right Act outlaws the use of federal aid to contribute to any form of discrimination.The United States Department of Justice. “Title IX.” The United States Department of Justice, August 6, 2015. https://www.justice.gov/crt/title-ix.
  10. The U.S. Commission on Civil Rights is an independent agency within the US government. They are tasked with investigating and reporting civil rights issues. “USCCR: United States Commission on Civil Rights > Home Page.” Accessed November 4, 2019. https://www.usccr.gov/.
  11. The LWV is group the encourages full government participation to promote equality and overcome diversity to aid in the ideal democracy. “About Us | League of Women Voters.” Accessed November 4, 2019. https://www.lwv.org/about-us.
  12. The ACE is a 501 US higher education nonprofit which was created in 1918. The ACE serves to influence public policy to ensure colleges and universities better serve their students. Brown, Sarah. “What Does Higher Ed Have to Say About the Proposed Title IX Rules?” The Chronicle of Higher Education, January 30, 2019. https://www.chronicle.com/article/What-Does-Higher-Ed-Have-to/245581.
  13. AAC is a national organization that seeks to promote quality and equity of liberal education. “About AAC&U.” Text. Association of American Colleges & Universities, March 19, 2014. https://www.aacu.org/about.
  14. This organization promotes graduate education, research, and international education within governmental policies. “National Association of State Universities and Land-Grant Colleges - Purpose and History of Association, Governance and Membership.” Accessed November 4, 2019. https://education.stateuniversity.com/pages/2268/National-Association-State-Universities-Land-Grant-Colleges.html.
  15. The Rhodes Scholarship is a prestigious scholarship awarded to 32 students. “The Rhodes Scholarships.” Accessed November 4, 2019. http://www.rhodesscholar.org/.
  16. The Tower amendment which was put forth by Senator Tower proposed legislation that would add fewer restrictions and regulations to Title IX including an exemption to revenue-producing sports. Women’s Sports Foundation. “History of Title IX.” Accessed November 4, 2019. https://www.womenssportsfoundation.org/advocacy/history-of-title-ix/.