Titile Ix Essay, Research Paper
Sex. That one little word has led to a mini-revolution in all aspects of a girl’s education, from Kindergarten to Graduate School, all across the nation. In 1972, Title IX was adopted as the landmark legislation for prohibition of gender discrimination in schools, and was signed into law, by President Richard Nixon, on June 23. This legislation encompasses both academics and athletics. Title IX reads: “No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.” Since 1972, many attempts have been made to alter the appearance and effect of Title IX.
On May 20, 1974, Senator Tower proposed an amendment to Title IX which would allow revenue-producing sports to be exempt from being tabulated when determining a school’s Title IX compliance. This proposal was rejected. [1] Two months later, Senator Javits proposed an amendment which would require the Department of Health, Education and Welfare (HEW) to issue the Title IX regulation including the phrase “with respect to intercollegiate athletic activities, reasonable activities considering the nature of particular sports.” This amendment was adopted. [1] The following June, Representative O’Hara introduced House Bill H.R. 8394, proposing to use the revenue-producing sports money to first support that sport, then to help support the other sports. This bill died in committee, as did a July, 1977 proposal by Senators Tower, Bartlett and Hruska to exclude revenue-producing sports from Title IX coverage. [1] In 1975, HEW issued the final Title IX regulation (34 C.F.R. Part 106), which was signed into law, by President Gerald Ford, and was effective as of July 21, 1975. This final version of the act created a three-year window for institutions to comply. Finally, in 1980, when the Department of Education was established, they were given Title IX to oversee through the Office of Civil Rights. [1] Through all of this, the goal of Title IX has been and is,
“to ensure that Federal funds are not utilized for and do not support sex-based discrimination, and that individuals have equal opportunities, without regard to sex, to pursue, engage or participate in, and benefit from academic, extracurricular, research, occupational training, employment, or other educational programs or activities.” [2]
Despite the 1975 regulations schools and courts still debated whether the language of Title IX itself included their athletic departments at all. At issue was the Title IX, ? 1681(a), phrase dealing with funding: sex-based discrimination in “any education program or activity receiving Federal financial assistance violated Title IX.” [3] Depending on whether a party was fighting for or against gender equity compliance under Title IX in the athletics area, that party argued for, respectively, an “institution-wide” or “program-specific” view of this phrase. Supporters of the latter view argued that Title IX forbade gender discrimination only in those specific “programs or activities” receiving direct federal funding. Thus, if an athletic program did not receive any direct federal funding, the regulations and compliance guidelines of Title IX did not apply to it. As seen in Othen v. Ann Arbor School Board, 507 F. Supp. 1376 (E.D. Mich. 1981), where a student was cut from the golf team. The students dad brought suit alleging that she was cut because of her sex. They brought suit under Title IX, but it was found that the Ann Arbor School District did not receive financial aid from the government, thus they did not fall under the Title IX regulation and could not be stopped from discriminating in the Golf Team’s selection process. [4] This argument severely limited the number of athletic departments falling under the auspices of Title IX, as few of them received any direct financial aid. [5]
In contrast, those supporting the institution-wide viewpoint argued that an entire educational institution falls under the requirements of Title IX if any part of the institution was the recipient of federal monies. Because almost every American institution of higher education receive some type of federal aid or admits students who receive federal loans, this interpretation brought almost all interscholastic and collegiate athletic departments within Title IX’s grasp.
Advocates of both perspectives asserted that Title IX’s limited legislative history supported their view. Institution-wide proponents also argued that direct financial funding intrinsically had no bearing on whether programs were benefiting from federal money. Specifically, they used a “release theory”, finding that when the federal government aids one program in an institution, that program is able to “release” money to other programs in the institution. In essence, this “other”, indirectly funded program (such as an athletic department) was still benefiting from federal resources.
As a result, the first major court case to try Title IX was Grove City v. Bell, 465 U.S. 455 (1984). In this case, the Supreme Court ruled to remove the applicability of Title IX in athletics programs by ruling that the only programs which must comply with Title IX are those programs which are directly receiving Federal financial assistance. [6] On March 22, 1988, Grove City V. Bell was overruled when Congress overrode a Presidential Veto, by Ronald Reagan, to enact the Civil Rights Restoration Act Of 1987. This act made it law that any educational institution which receives any Federal aid be bound by Title IX in its entirety, not just those programs receiving the aid. This act, under (2)(A), meant a
“college, university, or other postsecondary institution, or a public system of higher education . . . any part of which is extended Federal financial assistance,” must be in compliance with Title IX. [7] Despite the fact that the Restoration Act failed to specifically mention sports in its codification, the record of congressional debates left little room for doubt that among its goals was the creation of more athletic opportunities and equality for female athletes. [8]
On February 2, 1992, in the case of Franklin vs. Gwinnett County Public Schools, 501 U.S. 1204 (1991), the Supreme Court further altered Title IX to allow for punitive damages when intentional action was taken to avoid Title IX compliance. [9] The case involved a high school girl who said she was sexually harassed and abused by a teacher. She filed for damages in Federal District Court, which dismissed the complaint, saying Title IX does not authorize an award of damages. The Court of Appeals agreed. But the U.S. Supreme Court held that compensatory and punitive damages were available under Title IX. This case was crucial in putting “teeth” into Title IX, allowing women to find lawyers willing to take their cases because of the possibility of an award for damages, and threatening colleges in their pocketbooks if they refused to comply with Title IX. [9] Additionally, Franklin makes clear that damages are essential to ensuring that Title IX’s mandate of equal educational opportunity is realized, since damages may provide the only concrete method of compensating a victim of sex discrimination.
In addition to Title IX, three pieces of supporting and related legislation have been enacted. First, the Women’s Educational Equity Act of 1974 provides for federal financial and technical support to local efforts to remove barriers for females in all areas of education through, for example, the development of model programs, training, and research. Then, Title IV of the Civil Rights Act of 1964 provides for support to schools to comply with the mandate for nondiscrimination by providing funds for regional Desegregation Assistance Centers and grants to state education departments for providing more equitable education to students. Finally, the 1976 amendments to the Vocational Education Act of 1963 require states to act affirmatively to eliminate sex bias, stereotyping, and discrimination in vocational education.
In 1975, Congress directed the Secretary of Health, Education, and Welfare to make the regulations known for implementing Title IX. These regulations specifically prohibited gender discrimination in “intercollegiate . . . athletics“, [10] and most notably included a section entitled “equal opportunity.” [11] Under this section, HEW related that a “recipient” of federal funding “shall provide equal athletic opportunity for members of both sexes.” In assessing whether a recipient were indeed offered equal opportunities, the regulation provided that the Director of HEW would consider, along with other factors:
(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;
(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. [12]
Equally important, and appended to the end of this list, was a stipulation by HEW that “unequal expenditures” for men’s and women’s teams would not necessarily “constitute noncompliance with this section;” however, HEW could consider a failure to provide adequate funding for teams of one sex in “assessing equality of opportunity for members of each sex.” [11] Thus, at this stage in the statutory interpretation of Title IX, the administrative agency appeared to focus more aggressively on “equal opportunity” aspects of compliance as opposed to “equal expenditures.”
Following the initial issuance of the regulations, HEW received more than one hundred discrimination complaints covering more than fifty schools. [13]
The Policy Interpretation found that the 1975 regulations suggested three areas of compliance necessary to avoid a Title IX violation. It summarized these areas as (1) compliance in financial assistance (scholarships) based on athletic ability; (2) compliance in other program areas (equipment and supplies, practice times, etc.); and (3) compliance in meeting the interests and abilities of male and female students. [14] HEW’s goals in adopting this framework were to foster compliance with Title IX by ensuring that “institutions remain obligated . . . to accommodate effectively the interests and abilities of male and female students with regard to the selection of sports and levels of competition available.” This would entail, in most instances, “development of athletic programs that substantially expand opportunities for women to participate and compete at all levels. How were institutions to discern whether or not they were “effectively accommodating” these interests and abilities? The Policy Interpretation stated that HEW would begin by examining three factors under this compliance standard to assess whether interests and abilities were being met. First, was the school determining the athletic interests and abilities of its students accurately, ensuring that its “methods of determining interest and ability” were not “disadvantaging the members of an underrepresented sex?” [15] Second, what selection of sports were being offered, taking into account the difference between contact and non-contact sports? [16] Third, and what proved to be the most important aspect of the Policy Interpretation for recent cases dealing with Title IX, was whether adequate levels of competition were being made available to both sexes, including the opportunity for team competition. [17]
When Title IX was looked at under the U.S. Constitution, The Supreme Court determined that it does not violate the First Amendment. Also, the Court “expressly rejected the notion that education is a fundamental right, protected by the Fourteenth Amendment.” [16] The court said “in the area of education, participation in interscholastic and intercollegiate activities is not a constitutionally protected civil right.” [16] Even though extracurricular activities are not considered a fundamental constitutional right, when a school provides these activities, it has to do so on an equal, though not necessarily identical, basis. “Absolute equality of opportunity in every sport is not the mandate.” [16] “The court further concluded that “interscholastic athletics is not a property right.”” [16]
In Hoover v. Meiklejohn, 420 F. Supp. 164 (D. Colo. 1977), the court decided that totally denying a female public high school student the opportunity to play soccer, was a equal protection violation under the Fourteenth Amendment. [16] “However, the court noted
that “there is no right to a position on the athletic team, but only a right to compete for it on equal terms.”” [23]
Most recently, in Communities for Equity v. Michigan High School Athletic Association, 80 F.Supp.2d 729, 141 Ed. Law Rep. 646 W.D.Mich, a sex discrimination case, representatives of high school girls in Michigan filed a complaint alleging that the Michigan High School Athletic Association (MHSAA) is violating Title IX and the Equal Protection Clause of the Fourteenth Amendment. They contend that MHSAA has violated the rights of girls in the school system by refusing to sanction additional sports for high school girls, requiring girls to play certain sports in non-traditional seasons (which reduces participation opportunities for high school girls by shortening playing seasons, thereby making it impossible to participate in club competitions and all-star competitions involving players from other states, and negatively affecting their chances of being recruited for collegiate-level sports programs), and providing inferior practice and playing facilities for post-season tournaments held in certain girls sports. MHSAA moved for summary judgment, arguing that: (1) it is not subject to Title IX because it does not receive federal funds; (2) it is not a state actor subject to the Constitution; (3) the individual defendants cannot be sued in their official capacities; and (4) plaintiffs do not have standing to bring this case. [18]
The United States Department of Justice filed an amicus brief in opposition to the defendants’ motions, arguing that (1) MHSAA, by assuming controlling authority over interscholastic athletics from member schools which receive federal funds, is subject to Title IX; (2) in Michigan the regulation of interscholastic athletics is a function reserved to the state, and MHSAA is therefore considered a state actor; (3) individual defendants may be sued in their official capacities because they exercise administrative control over MHSAA; and (4) the court has already found standing. [18]
On January 21, 2000, the court denied the defendants’ motions to dismiss, finding that MHSAA was a state actor and finding the question of whether MHSAA had in fact assumed controlling authority over interscholastic athletics from member schools to merit the court’s further consideration. On September 7, 2000, the court granted the United States’ motion to participate as amicus curiae at trial, which is scheduled for February, 2001. [18]
After a Title IX violation has been established, it is important to figure out what can be done about it. First, the school can discontinue a men’s team. This approach renders the opportunity equal for both sexes, but the underlying goal of Title IX is to foster female participation, not to deny athletic opportunity to both sexes. Second, the school can let the female try out for the men’s team, thereby permitting both sexes to compete on the same team. Finally, they can establish a separate team for the girls, provided it is equivalent to the men’s team. “An equivalent program includes comparable facilities, equipment, supplies, uniforms, coaches, tutors, playing time, practice time, medical care, and publicity.” [16]
In O’Connor v. Board of Education of School District Number 23, 545 F. Supp. 376 (N.D. Ill.) 1982, the plaintiff was an eleven-year-old girl who wanted to play on the boys’ basketball team. The school had a girls’ basketball team. An athletic association rule prohibited the plaintiff to try out for the boy’s team. “The school district argued that separate teams maximize the participation of both sexes in interscholastic sports, and that the separate team policy is substantially related to this goal. By maintaining separate programs, defendants enable girls to participate in interscholastic sports.” The court said, that because gender discrimination was an issue, one must evaluate the case while considering the physical differences between boys and girls at age eleven.
The girl argued that separate teams did not maximize the opportunities for either sex. The court found no reason or rule to make it necessary for this girl, or any other talented female athlete, to be able or to have to be allowed to try out for the boys’ team. [19]
No one is arguing that Title IX regulations require, and it has not been held, that girls be provided with a exact duplicate of the men’s program, or that schools spend the same amount of money on each program. In fact, many school districts face economic problems and are thus trying to reduce their spending. As schools look at their athletic departments to cut costs, the decision as to which programs stay and which are cut will be examined to ensure that schools comply with Title IX. [16]