by Susan Ware
An early (perhaps the first) mention in a general circulation magazine that Title IX might apply to athletics appeared in October 1972 in Ms. magazine, which had debuted the previous winter. Under the header “How to Make Trouble: It’s Time for Equal Education,” NOW’S legislative vice president, Ann Scott (who probably had attended one of the informational meetings at HEW in August), proposed an affirmative action plan to implement Title IX in schools and on campuses that included a section on athletics. Under areas for review, she highlighted whether women were being denied the opportunity to participate in certain sports; what the per capita expenditures were per sex; and whether women received athletic scholarships. Noting that “legislation lives or dies by how it is enforced,” Scott urged readers to contact HEW’S Office for Civil Rights and members of Congress about holding educational institutions accountable to the intent of Title IX.25
Then the forward momentum stopped. Regulations were said to be forthcoming, but the waiting stretched to months and eventually years. Anne Grant, coordinator of NOW’S Education Task Force, told Margaret Dunkle in January 1973 that she had heard Pottinger was holding back on Title IX guidelines “because he wants to water-down athletic guidelines.” In February, Bunny Sandler updated Columbia law professor Ruth Bader Ginsburg that regulations were expected in March, which she said meant “April, May, June.…”26 In April, Dunkle, who was by now spending much of her time at the Project on the Status and Education of Women on the sports issue, reported to Bunny Sandler about an off-the-record meeting where she learned that the regulations would not be out until June, which she said meant September. As Dunkle said later that month in a speech to the American Association of Health, Physical Education and Recreation, “Perhaps all women athletes should be mountain climbers because the plight of women in sports programs is clearly an uphill struggle”.27
An important milestone in public awareness about discrimination in sport was a three-part Sports Illustrated series by Bil Gilbert and Nancy Williamson called “Sport is Unfair to Women” that appeared in May and June 1973, four months before the Billie Jean King-Bobby Riggs match. Gilbert had gotten interested in the subject as the father of three athletically inclined daughters; faced with limited options in his community, he helped start an Amateur Athletic Union (AAU) track club for girls, which he had profiled in an earlier feature for the magazine. When he pitched the idea for a series on women and sport to a magazine not noted, then or now, for its coverage of women, “Editorial authorities were dubious to say the least,” he later recalled, but they finally gave him and his coauthor the go-ahead. The first article opened with this forthright—and often quoted—statement: “There may be worse (more socially serious) forms of prejudice in the United States, but there is no sharper example of discrimination today than that which operates against girls and women who take part in competitive sports, wish to take part, or might wish to if society did not scorn such endeavors.” One long-distance runner said opportunities were so limited that “most of us feel that being second-class citizens would be a great advance.”28
Originally Gilbert did not think Title IX would have a lot to do with the story, but the final article mentioned it prominently, quoting Gwen Gregory as saying that guidelines would be issued by July 1973 (another deadline missed) and even giving the address of HEW to file complaints. Appearing in the most popular sports magazine in the country, the series documented the gross disparities between men’s and women's athletic programs across the country and helped to begin to spread the word that a new federal law mandated equitable treatment in athletics.29
By this point male athletic leaders and the National Collegiate Athletic Association had gotten wind that the draft regulations were going to cover athletics. Why had it taken so long? Since athletics programs did not receive federal funding, it simply had not occurred to many people that they would be included. Unlike the coverage of the events leading up to the passage of the original law, there had been very little public discussion in the New York Times, the Washington Post, or the Chronicle of Higher Education as the drafting process went forward in the second half of 1972 and into the first half of 1973. The first mention of athletics being covered did not appear in the Chronicle until November 1973.30
Billie Jean King became a public player in the Title IX story around this time. Much in demand after her successful demolition of Bobby Riggs in September, King put her sports celebrity to good use on Capitol Hill when she testified before the Senate Subcommittee on Education on November 9, 1973. This appearance is probably what she remembered when she claimed to have lobbied for Title IX, but she actually spoke in favor of the women's Educational Equity Act of 1973 (WEEA), a bill sponsored by Senator Walter Mondale and Representative Patsy Mink. The legislation authorized grants to administrators and institutions to develop nonsexist curricula, personnel training programs, and vocational and career counseling, as well as to expand and improve physical education programs for women. In other words, the WEEA was designed to fund projects that would implement the general goals of Title IX. Either way, King was a big hit, still fresh from what she jokingly described to the awe-struck senators as “that match against Roberta Riggs the other day.”31
Billie Jean King’s testimony spoke less to the arcane details of the bill than to the general stereotypes and problems that women faced in sports. For example, she recalled “one morning at the breakfast table asking my father what a good sport would be for a woman, and right there now that I reflect back, I realized I was already a product of the conditioning that goes on.” She spoke out against the tiny budgets allocated to women's sports, questioning why the benefits of sports were basically denied to half the population—the female half. “By the time a girl reaches high school or college she is often well programmed to think of sports as extraneous,” she said in her prepared remarks, before adding spontaneously, “There are so many women who have potential to be athletically inclined, and they are just afraid, but if through these educational programs, if you do fund athletic programs and girls find out it is fun, they find out that they are accepted, in fact they are looked up to, this will change everything.” The women's Educational Equity Act did not pass until August 1974, but Billie Jean King’s testimony certainly brought welcome attention to the issue as well as confirmation of the momentum building around women's sports.32
Title IX really burst onto the national scene in early 1974, when the NCAA launched a tremendous lobbying campaign against what it identified as a grave threat to the status quo in college athletics. Up until that point, it had been mainly women's groups and education advocacy organizations advising HEW on the implementation ofwhat was seen primarily as an education bill; now the NCAA aggressively inserted its point of view into the debate. The first six months of 1974, therefore, were when Title IX stopped being a general education law known mainly to Washington insiders and began to build a national reputation, pro and con, as “the sports law.”
The National Collegiate Athletic Association, established in 1905, had long been the dominant organization in intercollegiate athletics, administering programs and organizing national championships for its member institutions, and, starting in the 1950s, transforming itself into an economic powerhouse through its tight control of television rights to college sports, especially football. For all intents and purposes, it could have been called the National Collegiate Men’s Athletic Association, since by custom and (as of 1964) explicit rule, it confined its attention to male student athletes. women's collegiate sports in turn were tightly controlled by physical education leaders who downplayed competition and promoted a vision of participation and play instead of elite varsity competition.33
Starting in the 1960s and intensifying in the early 1970s, the NCAA began to get nervous that it might be exposing itself to legal challenges because it offered no opportunities for women to participate in intercollegiate athletics. Yet when the issue of women's athletics was raised at the January 1972 NCAA convention, there was gene
ral agreement that women's sports were beyond the realm of the group. women's athletic leaders in the Association for Intercollegiate Athletics for Women (AIAW), a newly constituted governance structure, agreed with that position, more than willing to be left alone to run their programs wholly apart from what they viewed as the NCAA’S corrupt model of sports. This dual structure thus suited the interests of both male and female athletic leaders: the women could have their programs and, most importantly, their autonomy, and the men could have theirs too, albeit on a much larger, more prestigious, and definitely more commercial basis. Title IX—as well as broader developments in sport and society—threatened to upset this fragile division of labor.34
From the start, football loomed over all Title IX discussions. “The problem is that you’re thinking in terms of equality for men and women,” a Title IX opponent once told attorney Margot Polivy. “Well, I’m all in favor of equality for men and women but it’s not just men and women, there’s men and women and football players.”35 Because of football’s high costs and huge rosters (upward of eighty-five scholarships, plus as many as fifty additional walk-on players), it was usually the biggest item in a school’s athletic budget, far overshadowing the spending on all other men’s sports and the tiny women's programs. Football programs enjoyed such a mystique in local communities and on college campuses, as well as with alums, that they were practically sacrosanct.36
Football’s seeming invincibility was also aided by the myth that football’s gate receipts and revenues paid for the rest of a school’s athletic program. This myth was not backed up by facts then or now. For example, analysis of NCAA figures from the 1970s showed that fewer than one in five varsity football programs generated revenue at least equal to operating expenses. If schools were forced to dramatically expand participation opportunities for girls and women, critics asked, where would that money come from without hurting men’s programs, especially football? Money and control fueled the Title IX debate, although there was also an undercurrent of hubris from the male athletic establishment that they “owned” sports and considered women as nothing more than unwelcome interlopers in their exclusive domain. In any case, changing business as usual where sports were concerned was not going to be easy.37
In early February 1974 an Associated Press story quoted Peter Holmes, the new director of the Office for Civil Rights, as saying that the federal government expected to issue regulations soon (yet another delay) that would help ensure “that women have an equal opportunity to participate in competitive athletics.” Showing how the media often trivialized the tenets of modern feminism, the Washington Post headline read, “Federal Rules Will Give ‘Em a Break, Ma’am.” Sports Illustrated’s “Scorecard” feature on the story warned that the guidelines might “emasculate college sport” by requiring “equity between men’s and women's activities” and singled out proposed measures such as equal pay for coaches and equal access to scholarships as especially “extreme.” Then Sports Illustrated gave a telling example of the other extreme that prompted such legislative scrutiny in the first place: with a multimillion dollar budget for men’s sports, the University of Oklahoma was willing to make only an additional $1,500 available for women's sports for the spring term. Repeatedly in the debate over Title IX, media coverage designed to support the status quo in men’s sports had the unintended consequence of publicizing just how unfair that status quo was.38
In a February 21, 1974, letter to the chief executive officers of member institutions, the NCAA launched its counteroffensive. Calling it a matter of “critical concern,” the NCAA noted, “If these regulations are ultimately given the force of law, the administration of the athletic program of virtually every NCAA member will be dramatically affected,” and urged all institutions to contact HEW with their objections. The NCAA lobbying had an impact. In mid-March, the Chronicle of Higher Education reported that the guidelines, primarily because of questions about their impact on college athletic programs, had been delayed yet again.39 One month later, the Chronicle’s Washington Notes reported “persistent speculation” that HEW might decide to exempt revenue-producing sports such as football from the guidelines.40
In many ways the NCAA and the male athletic establishment act as the villains in this story of the early days of Title IX (thankfully they later changed their tune somewhat), but in retrospect they unintentionally played a critical role in ensuring the viability of the law. By prominently entering the debate in 1974 and consciously seeking public support for their anti-Title IX stance, they helped bring this law out in the open, which in turn made it much less likely that it could have been amended or repealed behind the scenes by a few lobbyists and their Congressional supporters. By creating a corps of supporters as well as detractors, the NCAA made sure that any changes in Title IX would be actively—and publicly—contested 41
On May 20, 1974, the Senate inserted itself into the debate, passing on a voice vote an amendment sponsored by Senator John Tower of Texas that would have exempted “an intercollegiate activity to the extent that such activity does or may provide gross receipts or donations to the institutions necessary to support that activity.” In effect, the Tower Amendment would have exempted revenue-producing sports from Title IX’s coverage, a very serious threat to Title IX’s overall viability where sports were concerned.42
Once again Billie Jean King lent her name to the cause, writing to selected senators on stationery from her new magazine womenSports to ask them to strike the Tower Amendment because it would hurt women in college sports. Claiming that the amendment would “allow intercollegiate athletics to continue to discriminate against women,” she reminded senators that the “inequities for women athletes in colleges are tremendous,” with spending for men’s programs sometimes outpacing that for women's by a ratio of 1,000 to 1. “Indeed, the treatment of women in intercollegiate athletics is one of the worst examples of sex discrimination in our educational system.” On June 12, 1974, a House-Senate conference committee dropped the Tower Amendment from the education bill, a huge victory for Title IX supporters and personal vindication for Billie Jean King.43
King’s lobbying against the Tower Amendment, like her earlier testimony in favor of the WEEA, demonstrated her willingness to take time out of her incredibly busy tennis schedule (in 1974 she was still ranked number one) to speak out on political issues close to her heart. Then, as now, she received far more requests to speak than she could ever fulfill, so she had to pick her battles carefully. No doubt she had help from women's advocacy groups in drafting statements for her signature, but in the end what she said was less important than the fact that she lent her name. King’s generosity in sharing her celebrity on behalf of Title IX and women's sports helped build support for the law just as much as the work of lobbyists on Capitol Hill.
On June 18, 1974, almost two years to the day after Congress had originally passed Title IX, Secretary Caspar Weinberger announced the publication of draft regulations setting forth how the federal government proposed to enforce the law. HEW planned to solicit comments from interested citizens and organizations and then finalize a regulation to be submitted to the president for approval. Showing the complexity of the underlying issues, the government took over 12,000 words to explain a mere thirty-seven.44
The Chronicle of Higher Education called the draft guidelines “a lawyer’s dream but a client’s nightmare.” Committed to the goal of equal opportunity in athletics, the draft guidelines provided no definition of what equal opportunity meant but did set out a list of steps and changes schools were required to take. Discrimination was not allowed in physical education classes or athletic programs, although sponsoring separate teams for members of each sex based on competitive skill was allowed as long as there was no discrimination in equipment, supplies, “or in any other manner.” Schools were required to determine student interest at least annually to see in which sports members of each sex would like to compete. Under affirmative efforts, institutions were required to inform mem
bers of the previously limited sex (i.e., women) of the availability of opportunities and “provide support and training activities for members of such sex designed to improve and expand their capabilities and interests to participate in such opportunities.” The final section stated clearly, “Nothing in this section shall be interpreted to require equal aggregate expenditures for athletics for members of each sex.” That last section was clearly a sop to the NCAA.45
It is worth noting what these and future draft regulations did not do: they did not set specific quotas or guidelines to guarantee that minority women received their fair share of participation opportunities.46 In general Title IX practiced a race-blind approach to expanding opportunity that was mainly concerned with increasing the absolute numbers of women athletes relative to men, rather than a commitment to expanding opportunities for minority women; it opened slots but did not have a strategy for insuring that those slots represented the diversity of women. In the 1970s black female athletes benefitted as schools added popular sports such as basketball and track and field where African American athletes already had a strong presence. Later, however, as schools continued to add sports to stay in compliance, black athletes often lost out to “white-girl sports” such as ice hockey, soccer, rowing, and lacrosse, which were not available in many urban or black communities. This outcome was a direct legacy of the decision in the 1970s not to require affirmative action measures or quotas to structure which women actually benefitted, but instead to let the athletic market determine the talent pool. And that athletic market, like the free market in general, was far from fair and equitable.47