Title IX explained

Title IX is a portion of the Education Amendments of 1972, U.S. legislation also identified using the name of its principal author as the Patsy T. Mink Equal Opportunity in Education Act. It states that

History

Although the Civil Rights Act of 1964 was written in order to end discrimination based on race, color, or national origin, the act also energized the women's rights movement, which had somewhat slowed after women's suffrage in 1920.[1] While Title IX is best known for its impact on high school and collegiate athletics, the original statute made no explicit mention of sports.[2]

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.[1] 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.[3] She used university statistics showing how female employment at the university had plummeted as qualified women were replaced by men.[1] 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 250 complaints against colleges and universities.[1]

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. Title IX was drafted and introduced by Congresswoman Patsy T. Mink, with the assistance of Congresswoman Green.[4] In the hearing there was very little mention of athletics.[1] 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.

Title IX became law on June 23, 1972.[5]

Implementation

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.[1]

Concern over how Title IX would affect men's athletics prompted some to look for ways to limit the influence of Title IX. 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.[6] 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[1] ”, was adopted in its place.

In June 1975, HEW published the final regulations detailing how Title IX would be enforced.[1] The regulations were codified in the Federal Register in Volume 34, Part 106. It wasn't until this step was completed that everyone 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.[5] The NCAA claimed that the implementation of Title IX was illegal. A revised Tower Amendment was proposed and many debates were had but Title IX stood.[1]

In 1979, HEW, under Jimmy Carter's administration, issued further clarifications in its "Intercollegiate Athletics Policy Interpretation."[7] [8]

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).[6] Oversight of Title IX enforcement and implementation was given to ED's Office for Civil Rights (OCR).[9]

Further legislation and regulations

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[10] in which the Court held that Title IX applied only to those programs receiving direct federal aid.[11] 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.[10] 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.[1] 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.[5]

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.[6]

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.[12]

Applicability and compliance

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.[13]

The regulations implementing Title IX require all universities receiving federal funds to perform self-evaluations of whether they offer equal opportunities based on sex[14] 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.[15] With respect to athletic programs, the Dept. of Education evaluates the following factors in determining whether equal treatment exists:[16]

  1. Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
  2. The provision of equipment and supplies;
  3. Scheduling of games and practice time;
  4. Travel and per diem allowance;
  5. Opportunity to receive coaching and academic tutoring on mathematics only;
  6. Assignment and compensation of coaches and tutors;
  7. Provision of locker rooms, practice and competitive facilities;
  8. Provision of medical and training facilities and services;
  9. Provision of housing and dining facilities and services;
  10. Publicity.

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.

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 [17] . 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.

Three-prong test

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.[18]

  1. Providing athletic participation opportunities that are substantially proportionate to the student enrollment. This prong of the test is satisfied when participation opportunities for men and women are "substantially proportionate" to their respective undergraduate enrollment.
  2. Demonstrating a continual expansion of athletic opportunities for the underrepresented sex. This prong of the test is satisfied when an institution has a history and continuing practice of program expansion that is responsive to the developing interests and abilities of the underrepresented sex (typically female).
  3. Accommodating the interest and ability of underrepresented sex. This prong of the test is satisfied when an institution is meeting the interests and abilities of its female students even where there are disproportionately fewer females than males participating in sports.

Litigation after Grove City case

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.[11] 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.[6]

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.[22]

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.[23] 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.[24] However, the following year, it eliminated its men's soccer team.[25]

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 eliminating both teams at the end of the current school year.[26]

Impact

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.[27] [28] [29] 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%.[30] 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%.[31]

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.[32] For example, though interest in the sport of wrestling has consistently increased at the high school level since 1990, [33] scores of colleges have dropped their wrestling programs during that same period.[34] [35] The OCR's three-prong test for compliance with Title IX often is cited as the reason for these cuts.[35] [36] Wrestling historically was the most frequently dropped sport,[36] 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).[34]

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.[37] 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.[38]

Controversy

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.[32] [39] [40]

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.[32] [40]

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,"[41] critics argue that the three-prong test goes beyond Title IX original purpose of preventing discrimination, and instead amounts to an exercise in governmentally-mandated social engineering whereby 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.[39]

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.[42] 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.[43] 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."[44] 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.[44]

Commission on Opportunity in Athletics

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.[45] 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. Sports scholarships between men and women must be equal.

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.[46] 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.[47]

Similar U.S. state laws

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, 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.[48]

See also

Further reading

Notes and References

  1. Suggs, Welsh. A Place on the Team. Princeton, NJ.: Princeton University Press, 2005.
  2. Book: Carpenter, Linda Jean. Acosta, R. Vivian. 2005. Title IX. Champaign, IL. Human Kinetics. 0-7360-4239-3.
  3. Valentin, Iram. “Title IX: A Brief History.” Women's Equity Resource Center. August 1997. http://www2.edc.org/WomensEquity/pdffiles/t9digest.pdf
  4. “Title IX: A Brief History.” AAUW. 2009. http://www.aauw.org/advocacy/laf/lafnetwork/library/AthleticsHistory.cfm.
  5. “Legislative History of Title IX” National Organization for Women. June 27, 2007. http://www.now.org/issues/title_ix/history.html.
  6. “Landmark Title IX Cases in History” Gender Equity in Sport. February 23, 2006. http://bailiwick.lib.uiowa.edu/ge/historyRE.html.
  7. http://www.ed.gov/about/offices/list/ocr/docs/t9interp.html Title IX 1979 Policy Interpretation on Intercollegiate Athletics
  8. IX:http://findarticles.com/p/articles/mi_m1568/is_10_31/ai_59580155
  9. Web site: US Department of Education Principal Office Functional Statements: Office for Civil Rights. 2009-09-12.
  10. http://oyez.org/cases/1980-1989/1983/1983_82_792 ”The Oyez Project, Grove City College v. Bell”
  11. http://www.britannica.com/EBchecked/topic/597287/Title-IX "Title IX."
  12. http://www.ed.gov/legislation/FedRegister/finrule/2006-4/102506a.html Retrieved 2008-09-05.
  13. 34 C.F.R. §106.2
  14. 34 C.F.R. §106.3
  15. 34 C.F.R. §106.4
  16. 34 C.F.R. §106.41(e)
  17. Web site: NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE. U.S. Department of Education. 27 January 2012.
  18. http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html Retrieved 2008-09-05.
  19. A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 FR 71413 (Dec. 11, 1979)
  20. http://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html
  21. http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html Retrieved 2008-09-05.
  22. News: Sports People: College Sports;Bias Found at L.S.U. In Title IX Ruling. New York Times. Associated Press. January 13, 1996.
  23. Web site: WKU Regents Approve Move To Division 1-A Football. http://web.archive.org/web/20080115123929/http://wku.edu/news/releases06/november/football.html. Western Kentucky University. November 2, 2006. 2008-01-15. 2009-09-12.
  24. Web site: State College Notebook: Toppers' switch to I-A probable. Bailey, Rick. Lexington Herald-Leader. 2006-10-05. 2006-10-06. http://web.archive.org/web/20070930204126/http://www.kentucky.com/mld/kentucky/sports/15682246.htm . 2007-09-30.
  25. Web site: Western Kentucky Athletics Discontinues Men's Soccer. Western Kentucky University. 2008-02-13. 2009-02-13.
  26. News: Feds looking at Delaware athletics. ESPN.com. May 2, 2011. May 2, 2011.
  27. Web site: Title IX Athletic Statistics. American Association of University Women. 2009-10-13.
  28. Web site: Title IX at 35: Beyond the Headlines. National Coalition of Women and Girls in Education. 2009-10-13.
  29. Web site: TitleIX.info. 2009-10-13. The MARGARET Fund of NWLC.
  30. Linda Jean Carpenter and R. Vivian Acosta, Women in Intercollegiate Sport: A Longitudinal National Study Twenty-Nine Year Update 1977-2006 (2006)).
  31. Web site: Women in Intercollegiate Sport, a Longitudinal National Study. 2008.
  32. Equally Bad is Not Good: Allowing Title IX "Compliance" by the Elimination of Men's Collegiate Sports. University of Michigan Journal of Law Reform. Donald E.. Shelton. 2001. 34. 1. 1163230.
  33. News: USA Wrestling response to quotes by Donna Lopiano - Women's Sports Found.. 2000.
  34. News: Title IX has hurt the college sport, but it is now fighting back.. 2003.
  35. News: Wrestling programs threatened by Title IX.. 1997.
  36. News: Bucknell to drop wrestling for Title IX compliance.. 2001.
  37. http://www.campussafetymagazine.com/Channel/University-Security/Articles/Print/Story/2011/04/How-to-Comply-With-the-Dept-of-Ed-s-Title-IX-s-Sexual-Violence-Guidance.aspx
  38. http://online.wsj.com/article/SB10001424052702303678704576440014119968294.html Yes Means Yes—Except on Campus
  39. News: Wrestling With Title IX. The New York Times. John. Irving. 2003. 2003-01-28.
  40. News: Tilting the Playing Field: Schools, Sports, Sex and Title IX. Jessica. Gavora. 2003.
  41. News: Smith professor speaks on Title IX. The Smith College Sophian. 2008.
  42. Web site: Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test ― Part Three. U.S. Department of Education. 2009-10-13.
  43. Web site: OCR rescinds 2005 Title IX clarification. N.C.A.A.. 2010-04-25.
  44. News: Commission: Title IX interpretation unnecessarily hurts men's sports. USA Today. Erik. Brady. 2010. 2010-04-02.
  45. Web site: Commission on Opportunity in Athletics. 2009-10-13.
  46. http://www.ed.gov/about/bdscomm/list/athletics/report.html COA Report Text
  47. http://www.ed.gov/news/pressreleases/2003/02/02262003a.html Retrieved 2008-09-05.
  48. Web site: State Title IX Laws. Women's Sports Foundation. 2008-09-05.