by Susan Ware
THE LEGISLATION THAT Congresswoman Edith Green correctly predicted would be “the most revolutionary thing in higher education in the 1970s” had its roots in the civil rights legislation of the 1960s. Title IX was modeled directly on Title VI of the Civil Rights Act of 1964, which prohibited discrimination against the beneficiaries of programs receiving federal money on the basis of race, color, and national origin, but not sex. The better known Title VII outlawed discrimination in employment on the basis of race, color, national origin, and sex. As the story is often told, the sex provision had been added by Howard Smith, a conservative Southern representative, who hoped to undercut support for federal civil rights legislation with what he saw as a frivolous amendment. Women members of Congress such as Representative Martha Griffiths of Michigan did not see the issue of sex discrimination as frivolous at all and had been planning to introduce their own amendment to make sure it was covered in the law. For both the right and wrong reasons, it passed, giving women an important legal tool to fight sex discrimination in employment.3
Unfortunately neither Title VI nor Title VII covered sex discrimination in educational institutions, a gap Title IX would be designed to plug. In the meantime, a budding feminist activist named Bernice Resnick Sand-ler found a creative way to extend federal oversight into higher education. In 1965 President Lyndon Johnson had signed Executive Order 11246, which forbid discrimination on the basis of race in employment practices by federal contractors and mandated affirmative action plans to address past discrimination; in 1967 this executive order was amended to include sex discrimination. While researching federal antidiscrimination laws in 1969, Sandler noticed a footnote about this amendment and the proverbial light bulb went off in her head. “Even though I was alone,” she recalled, “I shrieked aloud with my discovery: I had made the connection that since most universities and colleges had federal contracts they were forbidden from discriminating in employment on the basis of sex.” When she contacted the director of the Office of Federal Contract Compliance in the Department of Labor, he confirmed her interpretation 4
It is impossible to tell the story of the passage of Title IX without giving Bunny (as she is universally known) Sandler a starring role as the “godmother of Title IX.” Sandler’s personal introduction to sex discrimination came in 1969 when, having finished her doctorate at the University of Maryland, she was not considered for a full-time position in the department where she was already teaching because, as a colleague told her, “Let’s face it. You come on too strong for a woman.” To her surprise and chagrin, no laws prohibited sex discrimination in education, that is, until she made the connection between Johnson’s executive order and university contracts. Based on her discovery, the women's Equity Action League (WEAL) filed a class action complaint in January 1970 against all the colleges and universities in the country, and the University of Maryland in particular, charging “an industry-wide pattern” of discrimination against women, especially in admissions, hiring, promotions, and salary discrepancies. The material she collected in support of the suit, especially the documentation of employment discrimination on campus, circulated widely, thanks to a Xerox machine made available by an ally at the Ford Foundation. (At the time most information circulated in mimeographed form; a fancy Xerox machine was a real luxury for most organizations.) Meanwhile activists pressed the Departments of Labor and Health, Education and Welfare to enforce the regulation.5
It is useful to pause to remember how new the topic of sex discrimination was in 1970, especially in education. The words had just entered the lexicon with the Civil Rights Act of 1964; phrases like sexism and sexual harassment were not even in common usage. Many of the things we would today call sex discrimination, such as women needing higher grades and test scores for admittance to colleges or professional schools arbitrarily capping the percentage of women, were simply accepted as the way things were. In fact, Bunny Sandler observed, “The issue of sex discrimination in education was so new that I received many letters from women and men asking me if it was true that such discrimination existed, and if so, could I send them proof.”6
Representative Edith Green, a Republican member of Congress from Oregon, was one who took note. A leading education specialist and, not co-incidentally, a member of WEAL, Green was planning to hold Congressional hearings on this topic; Sandler helped her compile a list of witnesses for the legislation Green planned to introduce. In June and July of 1970 Green held seven days of hearings on the barriers that women faced in higher education and then hired Sandler to edit the written record of the hearings. The resulting two-volume, 1,300-page document, which included both testimony and supporting material, provided convincing refutation of the view commonly held, especially by leaders in higher education, that there was no discrimination in education, or that if there was, it wasn't really a problem. Showing the political savvy of the emerging feminist network in Washington, D.C., Edith Green received permission to reprint 6,000 copies of the report, and Sandler helped her distribute them to educational leaders and the press, as well as each member of Congress. As Sandler concluded, “The hearings probably did more than anything else to make sex discrimination in education a legitimate issue.”7
The 1970 hearings set in motion a chain of legislative events that culminated two years later in the passage of Title IX. While Green’s original plan had been to amend the Civil Rights Act of 1964 to cover education, she realized such a strategy might expose the still-new law to other, potentially crippling amendments, so she concentrated instead on developing separate legislation to accomplish her purpose. In the spring and summer of 1971, she held another round of Congressional hearings. Green’s draft legislation was one of several bills introduced in the House. Around the same time, Senator Birch Bayh of Indiana, a good friend of the emerging women's movement and a strong supporter of the Equal Rights Amendment then under consideration, drafted similar legislation in the Senate. As the bills worked their way through the legislative process, private colleges and universities lobbied successfully to exempt undergraduate admissions from coverage. Another exemption covered military schools and the service academies; a third allowed private men’s and women's colleges to remain single-sex if they chose.8
As the final bill neared passage in the spring of 1972, Sandler and other representatives of women's groups in Washington offered to lobby on its behalf, but Representative Green warned them off, reminding them that “the less that people knew about the bill, the better its chances were for passage.” But it is wrong to imply that the provision on sex discrimination only slipped through because no one knew it was there. The Chronicle of Higher Education had taken note of the topic as early as July 1970,9 and in August of 1971 the New York Times weighed in editorially against the inclusion of the sex discrimination provision, calling its potential impact, especially on admissions policies, “educationally unsound.”10 Still, in 1972 Title IX was seen as a fairly minor bill, one of Edith Green’s pet projects, certainly lacking the historical gravitas of the civil rights legislation of the 1960s. That view would soon change, thanks to athletics.
The National Collegiate Athletic Association (NCAA) later tried to claim that Congress had not intended to include athletics under Title IX’s coverage, but the record lacks any sustained discussion of the subject.11 Senator Bayh provided one of the few references during floor debate on August 6, 1971, when he said: “I do not read this as requiring integration of dormitories between the sexes, nor do I feel it mandates the desegregation of football fields. What we are trying to do is provide equal access for women and men students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football involved. We are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be desegregated.” On the occasion of the thirtieth anniversary of the passage of the law, Representative Patsy Mink, who considered Title IX to be “one of my most significant efforts as a member of Congress,” remind
ed readers of the Congressional Record that athletics was not part of the original discussion. “Our primary goal was to open up educational opportunities for girls and women in academics,” adding that the most controversial issue at the time was the application of Title IX to admission policies.12
After the final differences were ironed out in a Senate-House conference committee, the Education Amendments Act containing Title IX was approved by the Congress on June 8, 1972, and signed by President Nixon on June 23. In addition to the sex discrimination provision, the $19 billion bill offered aid to community colleges and career education programs and initiated a student grant program for low-and middle-income students known as Pell Grants. Ironically, Edith Green voted against the very law that she had worked so hard to craft, disagreeing with a provision on the distribution of student aid. The passage of Title IX was not the only event in Washington that month that would have major historical consequences. In a further irony, Nixon signed the bill just one week after the burglary in the Watergate complex that would end his presidency two years later.13
The key provision of Title IX is a mere thirty-seven words long: “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.”14 Title IX applies to every aspect of education throughout an institution, not just a specific program receiving federal funds; while it is now associated almost entirely with the issue of athletics, its scope also includes admissions, counseling, course offerings, financial aid and scholarships, facilities and housing, health and insurance benefits, and discrimination based on marital or parental status. The penalty for noncompliance is the potential cut-off of all federal funds.15
Like many laws, Title IX’s mandate was left deliberately broad, in part because if lawmakers had made it more specific, it likely would have lost the consensus of support necessary for passage. Bunny Sandler is convinced that many politicians voted for the bill because they were thinking, “Oh, this is nice for the ladies. Let’s do that for them,” without fully thinking through the implications of what they were supporting.16 Bella Abzug, who won election to Congress in 1970, seconded this view: “We put sex discrimination provisions into everything. There was no opposition. Who’d be against equal rights for women? So we just kept passing women's rights legislation.”17
Given that athletics would become the “catalyst” that “pulled the other issues with it,” even though sports had hardly been mentioned in the legislative history, it is important to reconstruct as fully as possible how and when this transformation took place. Borrowing an analogy from the Senate Watergate hearings, which were unfolding as the Department of Health, Education and Welfare (HEW) struggled to determine the parameters of Title IX, Senator Howard Baker famously asked, “What did the President know and when did he know it?” A similar question can be asked about athletics: when did it dawn on people that Title IX would apply to physical education and athletics? More broadly, when did it become clear that Title IX had the potential to radically challenge the status quo of how schools structured and funded their athletic programs? Unlike Watergate, there is no conspiracy or smoking gun here, just a group of actors inside and outside the government following the implications of this wide-ranging law to its logical conclusion: that some of the most glaring inequities in higher education were in the area of athletics and that legally they must be addressed.18
Because of the complexity of the issues and the controversies that surfaced, it would be two years—not until June 1974—before draft regulations were published, and another year—not until July 1975—before they were officially approved. The lack of regulations meant that there was basically no enforcement on the part of the federal government for the critical first three years of the law’s existence, since HEW took the stand that it could not enforce the law until the regulations were written and approved. Note, however, that the law itself was in force as of July 1, 1972, and during this interim period complaints were filed with HEW and lawsuits initiated based on the law.19
At first officials at HEW seemed to be moving forward with all deliberate speed. In late July, J. Stanley Pottinger, head of its Office for Civil Rights (OCR), wrote to representatives of various education advocacy groups inviting them to informational meetings about Title IX the following week. The idea was to consult with them before regulations and administrative decisions were finalized and keep them apprised of major issues and problems. Margaret Dunkle, recently hired by Sandler to be her assistant at the Project on the Status and Education of Women at the Association of American Colleges, attended the August 4, 1972, informational meeting. According to Dunkle’s notes (and she took very good notes), athletics was not prominently mentioned at the meeting. But it must have come up in passing, because less than a week later she was back in touch with the OCR with more information about the issue. Sharing examples of how interest in women's athletics was already on the rise, she pointed out that women activists were concerned that any “separate but equal” facilities be truly equal and asked that “special care should be taken to assure that any policy be sex-neutral both on its face and in practice.”20
Margaret Dunkle’s involvement in concerns regarding athletics so soon after Title IX’s passage confirms that the issue was there from the start. What is missing is any foreboding of what a hot-ticket topic it would become. While it seems to have occurred to a few people (Bunny Sandler estimated no more than ten) that athletics would be covered, no one yet grasped Title IX’s potentially revolutionary impact. While sex discrimination in education was generally invisible, discrimination in sports was simply not on the radar. Even Sandler, who was in the thick of events, remembers thinking only that the law might mean a few more activities for girls at annual school field days. As she later commented, “If those of us close to Title IX did not fully realize its impact, especially on sports, how could others have known what it would be?”21
In October 1972, HEW attorney Gwen Gregory began to grapple with how to apply Title IX to athletics. Like so many others before and after, she began by seeing if it was possible to use the integration model developed for civil rights for the seemingly parallel issue of discrimination in sports. She quickly discarded that approach. (See chapter 5 for the implications of this lost moment.) Since women cannot “compete as a class with men,” they “would not be treated equally if forced to compete equally.” In other words, just opening all men’s teams to women—the equivalent of integration—would mean little since only the most exceptional female athlete would be able to qualify for a men’s team.22
Was the alternative, then, “separate but equal” teams for men and women? This concept was anathema to many activists because “separate but equal” was precisely the practice that civil rights legislation was designed to overturn. If separate could never be equal when it came to race, why would it be any different for women in sports? And yet women's sports were at such an embryonic stage of development that practically no one could envision a playing field where women and men competed equally. This conundrum, which of course is the puzzle of modern feminism—how to provide equal opportunity for women while also recognizing their differences from men—made the process of writing regulations for athletics extremely challenging, even before male athletic leaders entered the picture claiming that equal participation opportunities for female athletes would bankrupt the existing system.
One way to simplify the sports question just a bit was to distinguish physical education classes, intramurals, and recreational activities from competitive athletic programs. Here HEW adopted the approach known as formal equality that it applied to the rest of Title IX and education: “men and women should be treated alike if they are similarly situated for purposes of the policy or practice that is being challenged.” With the exception of sex education classes (which were traditionally an uneasy part of the physical education program), instructiona
l gym classes and other recreational opportunities would no longer be strictly segregated by sex. Even this amount of athletic integration was controversial, however, especially among female physical education leaders who worried about girls being injured or bullied by rough boys in coeducational activities. These gym teachers also worried about losing their jobs as programs were combined, a valid fear, as it turned out. While there were always some parents and administrators who did not like the idea of coed gym classes, this has in fact become the norm as a result of Title IX.23
The question of competitive athletics was trickier. In an October 1972 memo to her boss, Gregory proposed a general statement to cover the field: “As it appears that women cannot compete as a class with men in most athletics, such activities should be provided separately for men and women in most cases. However, if it can be shown by an institution that women are not limited by their physical ability from a particular sport, then and in that event, such institution may conduct the sport on a coeducational basis.” Pottinger agreed, provided there were some references to specific areas of equal treatment, such as incentives to participate, budgets proportionate to numbers on teams, equal access to facilities and support services, and athletic scholarships for both men and women.24
In general terms, therefore, several months after the law’s passage, HEW had moved quickly toward staking out a stance on how Title IX would apply to athletics that was not too different from the final regulations: make physical education instruction coeducational, but in most cases keep competitive athletics teams separate for men and women accompanied by a commitment to more equitable access to opportunities and resources. But these tentative formulations remained strictly in-house, and therefore of no help at all to schools and institutions trying to figure out how the law applied to them.