Title IX, Education Amendments (1972)

Julie A. Davies

Title IX was enacted as part of the Education Amendments of 1972 (P.L. No. 92-318, 86 Stat. 373). This amendment prohibits sex discrimination in education by programs that receive federal financial assistance. It was patterned after Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the grounds of race, color, or national origin in any program or activity receiving federal financial assistance. Unlike Title VI, however, Title IX prohibits discrimination only in education: "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." This provision covers programs such as admissions, recruitment, financial aid, academic programs, physical education, athletics, grading, discipline, housing, and employment in school districts, colleges, and universities, and for-profit schools that receive federal money.

The basic idea behind statutes such as Title VI and Title IX is that federal tax money should not be used to support programs that discriminate on certain bases. The U.S. Constitution gives Congress the power to decide how federal money is spent, and Congress has chosen to condition grants of federal funds on the recipients' promise not to discriminate on the grounds of race or sex. The statute contains certain exemptions, including social fraternities or sororities, father-son or mother-daughter activities, and educational programs in religious organizations whose beliefs are contrary to the statute.

HISTORY AND POLITICAL CLIMATE SURROUNDING ENACTMENT

Titles VI and VII of the Civil Rights Act of 1964 paved the way for Title IX's passage eight years later. In Title VI, Congress utilized the threat of withholding federal money to help overcome massive resistance to desegregation that followed the Supreme Court's decision in Brown v. Board of Education of Topeka, Kansas. However, Title VI did not include a prohibition on sex discrimination; the concept of equality between the sexes was only beginning to emerge. Title VII included protection from sex discrimination in employment, although this was added by amendment as an afterthought. Title IX was notable because it combined the elements of restrictions on federal funding and protection from sex discrimination and applied them for the first time to education.

In 1972 girls and women faced numerous barriers in education. Nationwide, awareness of societal discrimination against women was growing. Representative Patsy Takemoto Mink (Hawaii), Title IX's author and co-sponsor, had experienced educational barriers firsthand when, despite strong undergraduate preparation, she could not gain admission to medical school. Mink and cosponsor Representative Edith Green of Oregon introduced Title IX in the House of Representatives. The bill's chief advocate in the Senate was Birch Bayh of Indiana.

During the Congressional hearings, witnesses presented evidence of rampant discrimination in education. Some colleges offered admission only to those women who were "especially well qualified" but placed no such restriction on men. Schools commonly spent money on athletic programs devoted to boys while offering little, if any, opportunity to girls. Boys were much more likely to be recruited and to receive athletic scholarships. Curricula often perpetuated long-standing stereotypes, channeling girls into sewing and cooking classes and boys into "shop" (which taught such skills as woodworking). Boys were viewed as more capable in math and science and encouraged to take advanced courses. Professional career options such as law, medicine, and accounting were overwhelmingly male.

ENFORCEMENT

Originally, Title IX was to be enforced by the Office of Education in the Department of Health, Education and Welfare. Later, after the creation of the Department of Education, enforcement of Title IX, along with Title VI and other statutes, was transferred to that department's Office for Civil Rights (OCR). OCR's duties include making and implementing policy, investigating complaints of discrimination, and initiating enforcement actions against entities that refuse to comply. Although in theory the remedy for noncompliance is a cutoff of funding, in practice this has not occurred, no doubt because of the devastating impact of such a cutoff on students. Instead OCR has typically worked to obtain an agreement from the funded program that it will comply. OCR is also permitted to refer cases to the U.S. Department of Justice.

After Title IX had been in effect for a number of years, critical analysis of its impact suggested that federal enforcement was not as effective as it could have been. In addition, critics thought it troubling that the victims of discrimination could neither enforce the statute through litigation nor obtain any remedy for discrimination. In response, the Supreme Court, in Franklin v. Gwinnett County Public Schools (1992), recognized the right of a private individual injured by discrimination to sue the federally funded entity for damages. Recognition of this private right of action (and the availability of attorneys' fees under the Civil Rights Attorneys' Fees Awards Act of 1976) gave people who suffer sex discrimination in education a powerful additional enforcement tool.

IMPORTANT TITLE IX ISSUES

In the decades since the enactment of Title IX, the most intolerable barriers to women's advancement in education have fallen. Some issues, however, remain at the forefront of public attention. One controversial issue concerns Title IX's impact on the funding of men's and women's sports, particularly at the collegiate level. Title IX detractors claim the OCR's interpretation of Title IX policy has forced the elimination of some men's sports by requiring schools to spend proportionate amounts on both women's and men's sports. Title IX advocates argue that proportionality in spending is only one indicator of compliance, with the other factors not based on numbers. They claim that by offering men extremely costly programs, such as football, colleges and universities have created the need to cut lesser sports.

Another important issue, unrecognized at the time of Title IX's adoption, is sexual harassment in education. The Supreme Court, following the development of the concept of sexual harassment in employment law, has held that entities violate Title IX when they know of teacher-to-student and student-to-student harassment and respond with deliberate indifference, and harassment deprives the student of equal educational opportunity. A 1993 survey by the American Association of University Women called Hostile Hallways found sexual harassment to be common in schools and saw little evidence that educational entities were doing anything to address it. A survey ten years later still found harassment to be common, but concluded that federally funded entities were much more likely to be aware of the issue and to have a sexual harassment policy.

Another subject of debate is whether Title IX's regulations allow sufficient flexibility for educators to establish single-sex classes and schools at the elementary and secondary levels. Title IX does permit such classes, but only when the classes are designed to remedy a sex-based disadvantage. Some argue this option should be made more freely available.

STATUS OF TITLE IX AND ITS IMPACT

To the modern student, the educational obstacles that faced females in 1972 may seem unbelievable. The degree of equity between the sexes in all aspects of federally funded educational programs is a testament to Title IX's success. Title IX's advocates believe there is much more to be done, as evidenced by the continued underrepresentation of women in science and technology, disparities between numbers of men and women receiving athletic scholarships, and the prevalence of sexual harassment in education. Others claim that Title IX is too restrictive and call for reform, particularly in the areas of athletic equity and single-sex education.

See also: Civil Rights Act of 1964; Equal Pay Act of 1963; Individuals with Disabilities Education Act.

BIBLIOGRAPHY

American Association of University Women. Hostile Hallways: The AAUW Survey on Sexual Harassment in America's Schools. Washington DC: American Association of University Women Educational Foundation, 1993.

American Association of University Women. Hostile Hallways: Bullying, Teasing and Sexual Harassment in School. Washington, DC: American Association of University Women Educational Foundation, 2001.

American Association of University Women. A License for Bias, Sex Discrimination, Schools and Title IX. Washington, DC: American Association of University Women Legal Advocacy Fund, 2000.

Spring, Joel. The Sorting Machine: National Educational Policy Since 1945. New York: David McKay, 1976.

Stein, Nan. Classrooms and Courtrooms: Facing Sexual Harassment in K-12 Schools. New York: Teacher's College Press, 1999.

United States Commission on Civil Rights. Equal Opportunity Project Series, Vol. 1. Washington, DC, 1996.

Yuracko, Kimberly, "One for You and One for Me: Is Title IX's Sex-Based Proportionality Requirement for College Varsity Athletic Positions Defensible?" Northwestern University Law Review 97 (2003).

INTERNET RESOURCES

American Association of University Women. <http://www.aauw.org>.

Office for Civil Rights. <http://www.ed.gov/offices/OCR>.

National Coalition for Women and Girls in Education. "Title IX at 30, Report Card on Gender Equity." <http://www.ncwge.org/title9at30-6-11.pdf>.

U.S. Department of Education. "Title IX, 25 Years of Progress."<http://www.ed.gov/pubs/TitleIX>.

U.S. Department of Education. "Open to All: Title IX at 30." <http://www.ed.gov.pubs/title9_report.pdf>.

Women's Educational Equity Act Resource Center. "Title IX and Education Policy." <http://www.edc.org/WomensEquity/resource/title9/index.htm>.

Has Title IX Helped?

• •In 1972, women earned 9 percent of medical degrees. In 1994, women earned 38 percent.
• •In 1972, women earned 7 percent of law degrees. In 1994, women earned 43 percent.
• •In 1972, women earned 25 percent of doctoral degrees. In 1994, women earned 44 percent.
• •In 1971, 18 percent of women had completed four years of college, compared to 26 percent of men. In 1994, 27 percent of both men and women had earned a bachelor's degree.
• •In 1972, women comprised 15 percent of college student athletes. In 1995, women comprised 37 percent.
• •In 1971, 300,000 high school girls participated in athletics. In 1996, there were 2.4 million.