Filling the Gaps
Women, Civil Rights, and Title IX
By Kristen M. Galles
The Civil Rights Act of 1964 (Act) opened public facilities, public accommodations, education, jobs, and voting booths to more Americans by making it illegal to discriminate on the basis of race, color, religion, and national origin. Women, however, were glaringly absent. In fact, only the employment provisions of Title VII mention women at all—and that mention was inserted as a last-minute attempt to defeat the bill entirely rather than to include women in the civil rights revolution. Believing that even those in Congress who supported racial equality would balk at the idea of gender equality, Virginia Congressman Howard Smith submitted an amendment to add “sex” to the categories protected by Title VII. Fortunately, his ploy backfired when the few women in Congress supported the amendment and ensured its survival.
Despite this small victory, the Act still ignored women in education. Women were not included in Title VI, which made it illegal to discriminate in federally financed educational programs. Meanwhile, Title VII excluded educational institutions, local and state governments, and the federal government, meaning that these organizations could continue to discriminate against women at all levels. At the time, many secondary schools required girls to take home economics and English, while boys took industrial arts and calculus. Physical education classes were sex segregated, with boys playing team sports while girls engaged in calisthenics or tumbling. Athletics remained a male-only bastion, with girls relegated to cheering. Even the few states that offered athletic opportunities to girls subjected them to discriminatory rules like six-on-six half-court basketball or scheduled them in odd seasons so the boys would not have to share their facilities.
The discrimination continued in colleges and universities. Many schools completely barred women from stereotypically male programs like law and medicine. Still others set quotas that limited the number of female students, no matter their qualifications relative to male applicants and students. Many of the nation’s prestigious schools—including even public colleges like the University of Virginia—remained male only. Meanwhile, women in academia were denied tenure or simply not hired because of their gender. The law even allowed public schools to assign female teachers in elementary schools while they hired only males for high school math or science classes. Not even the Equal Protection Clause protects women from these indignities, because the Supreme Court has not yet recognized “sex” as a suspect class entitled to heightened scrutiny.
The year 1972 was a breakthrough one for women’s rights. Congress extended Title VII to educational institutions, local and state governments, and even the federal government in the Equal Employment Act of 1972. Schools could no longer hire women for home economics and men for math and science; they could no longer bar women from leadership jobs as principals and superintendents; and they could no longer deny tenure to women on the basis of sex. Local governments could no longer bar women from important jobs as police officers and fire fighters.
Congress also passed Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), which makes it illegal to discriminate on the basis of sex in federally financed programs—in both public and private schools. Its primary language mirrors that of Title VI:
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.
Although most people today associate Title IX with athletics, its coverage is and was intended to be far broader. It opened doors for admissions, academic majors, classes, and vocational education. It also mandated equal access and equal treatment once admitted. But the doors did not open overnight.
Soon after its passage, several lawmakers tried to amend or even repeal Title IX. Organizations like the National Collegiate Athletic Association and the College Football Coaches Association strongly opposed its application to athletics or at least to men’s “revenue producing” (not profit-producing) sports. Health, Education, and Welfare Secretary Caspar Weinberger defended the law, noting that Title IX had no exclusions for athletics or any other educational program. Nevertheless, for the next several years Congress battled numerous attempts to weaken Title IX and its 1975 regulations. Each attempt failed.
Yet attacks on Title IX continued into the 1980s. Many schools argued that Title IX applied only to educational programs that actually received federal funds and not to all educational programs simply because the schools themselves received general federal monies. Despite extensive, contrary legislative history, the Supreme Court adopted this view in Grove City College v. Bell, 465 U.S. 555 (1984). Another attack came in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), which held that, absent express waiver, state-run institutions were protected by sovereign immunity from monetary damage suits under the Rehabilitation Act of 1973 (like Title VI, a spending clause sister statute of Title IX). As a result of these two Supreme Court decisions, enforcement activity of all three civil rights statutes virtually ceased.
Congress responded to these decisions by passing the Civil Rights Remedies Equalization Act (CRREA) of 1986 and the Civil Rights Restoration Act (CRRA) of 1987 (later incorporated into Title IX). The CRREA conditioned acceptance of federal funds on an express waiver of sovereign immunity. The CRRA made it clear that Congress intended Title IX and its sister statutes to cover all programs and activities of any educational institution that receive federal funds and not just the few programs that received the funds directly. Congress passed the CRRA over President Reagan’s veto.
By 1990, it seemed that the tools were finally in place to enforce the eighteen-year-old Title IX statute. A series of sexual harassment and athletics cases started fleshing out Title IX’s requirements—and gaps—throughout the 1990s.
Sexual harassment: The Supreme Court’s decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), added to the tools of Title IX enforcement by holding that plaintiffs can obtain monetary damages from defendants for intentional discrimination. The decision also made clear that sexual harassment is a form of discrimination barred by Title IX.
However, it took two more Supreme Court decisions to clarify the limited extent of that coverage. In Gebser v. Lago Vista Ind. School District, 524 U.S. 1011 (1997), the Court described the standard of liability when a teacher sexually harasses a student as one that requires a person of authority to have actual notice of the harassment and respond with “deliberate indifference” to it. Ironically, the Court rejected the more lenient standard applicable to adults in employment settings under Title VII, wherein employers are liable if they know or should have known about the harassment by supervisors and even coworkers. In doing so, the Court expressly chose to give less protection to children than to adults.
Later, in Davis v. Monroe County Bd. of Education, 526 U.S. 629 (1999), the Court applied the same liability standard to peer sexual harassment. Schools are not liable for sexual harassment of one student by another unless the school has actual knowledge of the harassment and fails to respond adequately. Once again, the Court chose to protect adult employees from their coworkers more vigilantly than to protect children from their peers in the classroom.
Congress has not considered any Title IX amendments to respond to these Supreme Court decisions or to subject schools to the same standards of liability as employers.
Athletics: Although Title IX’s final regulations required that all elementary schools reach full athletic compliance by 1976 and that all secondary and post-secondary schools reach full compliance by July 1978, virtually no schools had done so by 1990. 34 C.F.R. 106.41(d). In fact, a 1992 gender equity study by the National College Athletic Association found nearly universal noncompliance among its member schools. A series of lawsuits soon set the standards for equal opportunity in athletics.
In Cohen v. Brown University and Roberts v. Colorado State Bd. of Agriculture, the district and appellate courts addressed the meaning of “equal opportunity” in the sex-segregated world of athletics in light of the Title IX regulations and the 1979 Office for Civil Rights (OCR) policy interpretation on Title IX and Intercollegiate Athletics. 44 Fed. Reg. 71413 (Dec. 1979). Still other court decisions and OCR policy statements explained the requirements for equal opportunity in athletic scholarships and benefits.
In 1995, the National Women’s Law Center and this author filed the first comprehensive Title IX athletics lawsuits against high schools. We sued schools in four different sections of the State of Nebraska to force them to increase athletic participation opportunities for girls by adding softball to their programs. We also sought equal treatment of boys and girls, so boys would not always have the best gym at the best times, so girls could play games at night when their parents could attend, so girls could have cheerleaders and pep bands like the boys, and so girls could travel to games on the same charter buses as the boys. The cases eventually settled, but sent a shock wave through the state that prompted many other schools to learn more about their Title IX responsibilities.
While female athletes experienced dramatic successes in the courts and on the fields throughout the 1990s, the Title IX backlash returned. In 1993 and again in 1995, the College Football Coaches Association and other groups returned to Congress to try to amend Title IX. When this congressional route failed, they turned to the courts to challenge the decisions of some schools to decrease opportunities for males rather than increase opportunities for females. Courts universally rejected these challenges, holding that schools can offer athletic programs of any size they choose so long as they allocate their opportunities equitably between male and female students. See, e.g., Miami University Wrestling Club v. Miami University of Ohio, 302 F.3d 608 (6th Cir. 2002); Boulanis v. Board of Regents of Illinois State University, 198 F.3d 633 (7th Cir. 1999); Chalenor v. University of North Dakota, 292 F.3d 1042 (8th Cir. 2002); Neal v. Board of Trustees of the California State Universities, 198 F.3d 763 (9th Cir. 1999).
When the congressional and judicial challenges to Title IX failed, opponents turned to the executive branch, convincing the secretary of education to establish a Title IX Commission on Opportunity in Athletics. The Commission issued a 2003 report that recommended numerous regulatory changes that would have substantially weakened Title IX enforcement. Eventually, with public pressure mounting, the secretary issued a July 2003 letter that made no major changes.
Opponents continued their Title IX assault even after losing in all three branches of government. The National Wrestling Coaches Association (NWCA) filed a lawsuit against the Department of Education, challenging Title IX’s regulations directly. Although NWCA lost in the district court, the matter is now before the U.S. Court of Appeals for the District of Columbia. Meanwhile, the College Sports Council, the NWCA, and other groups have challenged the secretary’s July 2003 letter and even the accuracy of athletic participation studies performed by the Government Accounting Office. These administrative complaints remain outstanding.
After more than thirty years, Title IX remains a work in progress. Access to higher education and professional programs is clearly its greatest achievement. But girls still are denied access to traditionally male academic programs and vocational education opportunities. Counselors and teachers still steer boys to the sciences and girls to the humanities. Girls still endure sexual harassment from teachers and peers. Athletic opportunities, scholarships, and even coaching positions still lag behind for girls.
The world of education is far better for women and girls in 2004 than in 1972, but more work remains and the backlash continues. We must be vigilant to ensure that future generations reach and enjoy true equality under the law.
Kristen M. Galles is the co-chair of the Rights of Women Committee of the Section of Individual Rights and Responsibilities.
• Number of girls participating in high school sports around 1972: less than 300,000; in 1999: more than 2.8 million
• Percentage more opportunities for boys and men to participate in high school and college sports than women: 40% and 38.4%, respectively
• Percentage of college undergraduates who are women: 55%
• Percentage of college athletic scholarship dollars that go to women: 42%
• Percentage of athletic budgets that go to women’s sports: 36%
• Amount of money in college aid the scholarship disparity costs women: more than $133 million each year
Source: National College Athletic Association Gender Equity Report, 1999–2000