Game, Set, Match

by Susan Ware

  The summer of 1974 was a busy one in Washington. On August 9, after Senate hearings leading to an impeachment vote, plus an adverse Supreme Court ruling, Richard Nixon resigned from the presidency because of the Watergate scandal. One of the issues that new president Gerald Ford inherited was Title IX. By October, HEW had received close to 10,000 comments on the proposed regulations, an unprecedented number. Even though athletics took up less than 10 percent of the regulations, that subject generated over 90 percent of the comments. As HEW Secretary Caspar Weinberger later quipped, “I had not realized until the comment period that athletics is the single most important thing in the United States.”48

  Even though NOW and WEAL offered different critiques of the proposed guidelines, all the women's groups agreed that the regulations were a step in the right direction.49 The NCAA argued the opposite. Calling the regulations “arbitrary government in its most naked form,” the NCAA called the proposed regulations “so vague, ambiguous and obviously lacking in comprehension of the realities of administration of college athletics as to represent a deterrent, rather than an aid, in the development of athletic opportunity for women.”50

  HEW was caught in the middle. Given the undeniable existing discrimination that was being uncovered, it was legally obligated to try to find a way to promote more equal athletic opportunities for women. At the same time it was engaged in a major public relations battle with athletic groups, and it had to seem responsive to their concerns. In such a situation, nobody was going to win big. In the short term, the more controversial athletics got, the more it helped the NCAA in its attempts to convince HEW to water down the provisions. In the long term, however, the controversy helped the cause of gender equity by building a popular base of support for the law, which helped in turn to insulate it from crippling amendments or repeal. Such popular support also put pressure on the federal government to enforce its wide-ranging provisions.51

  In March 1975, word leaked that the White House staff was reviewing revised guidelines, and in April the guidelines were officially submitted to President Ford for his review. The headline in the Chronicle of Higher Education, “HEW Softens Bias Stand,” captured the significant watering down that had occurred. As always, HEW was trying to find a middle ground in a complex area where there weren't obvious winners or losers. The NCAA was not assuaged. After Weinberger’s press conference announcing the final regulations, a lawyer for the NCAA was quoted as saying: “This may well signal the end of intercollegiate athletic programs as we have known them in recent decades.”52

  The main changes involved both procedure and policy. The new regulations allowed high schools, colleges, and universities a three-year grace period to deal with changes in athletic policies (elementary schools received a one-year extension), such as implementing the integration of physical education classes and requiring that women be allowed to try out for a men’s team if a women's team was not available. (The extension was clearly a concession to the NCAA.) The regulations added a new (and troubling, to women's groups) distinction between contact and noncontact sports: schools were now allowed to exclude women from teams in contact sports, even if there was no separate women's team. This too seemed politically motivated: allowing girls to participate in contact sports such as wrestling and football was quite controversial and could undermine support for the law. Earlier requirements that schools be required to conduct an annual survey of student interest were dropped, and the language calling for remedial action to make up for past discrimination was weakened.53

  Balanced against those drawbacks—and there is no denying that in most ways the final regulations were far weaker than earlier drafts—were what the regulations did accomplish. They took a general concept of equal opportunity and identified tangible, concrete areas where it had to be addressed in order to be in compliance with the law. This so-called “laundry list” (originally developed by Margaret Dunkle in 1974) included provision of equipment and supplies, scheduling of games and practice time, travel and per diem allowances, coaching, locker rooms and facilities, medical training and services, and publicity, among others. More broadly, the regulations set as a compliance standard “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” Furthermore, for the first time the regulations set a deadline for institutions to be in compliance.54

  There was one final hurdle to clear. After the final regulations were signed by President Ford on June 3, they went back to Congress for approval. Due to a rule change since the legislation originally passed in 1972, education regulations, which previously would have gone into effect on publication in the Federal Register, now were open to Congressional amendment or disapproval for a period of forty-five days. With the NCAA still actively lobbying against the Title IX regulations and various measures pending in Congress that could have potentially crippled its impact, it is not too melodramatic to say that Title IX faced its most serious threat to date in June and July of 1975.55

  In early June a broad coalition of thirty national organizations, many of which had been instrumental in the passage of the women's Educational Equity Act the previous August, met to discuss their stand in defense of the law. (By the fall this group had officially become the Coalition for Women and Girls in Education, with Margaret Dunkle serving as its first president. The group is still active in the Title IX fight today.) Hardly anyone was fully satisfied by the final regulations. Bunny Sandler’s assessment was both blunt and realistic: “Sure they could have been stronger, but they wouldn't have gotten anywhere. That’s the political process: it’s what’s possible.” After a clear consensus emerged that weak regulations were better than nothing, the group dedicated all its collective resources to making sure that the regulations survived what looked to be a rocky forty-five days ahead.56

  In June there were efforts in both the Senate and the House to send the regulations back to HEW for further review, which was just a cover for more delay. Representative James O’Hara of Michigan organized six days of hearings during which representatives of the NCAA and the American Football Coaches Association argued that since the so-called revenue-producing sports did not directly use federal funds they should not be covered by the regulations. Responded one feminist activist, “Since when is making money an excuse for discrimination?” O’Hara seemed to have the momentum when his subcommittee disapproved two sections of the regulations (on self-evaluation and on the grievance procedure), but the full committee sent them back for more review. In a show of solidarity, supporters packed the hearing room wearing bright yellow buttons that said, “God Bless You, Title IX.”57

  A simultaneous threat came from a rider tacked on to an education appropriations bill by Representative Robert Casey of Texas which would have barred HEW from requiring the integration of physical education classes. This amendment had easily passed the House back in April by a vote of 253-145 but floundered in the conference committee, which sent it back to the floor for another vote. Just prior to the vote, Representative Patsy Mink of Hawaii, who was managing the floor debate against the rider, received word that her daughter had been in a serious car accident and she immediately left. This time the vote was much closer (212-211), but the physical education exemption still passed. The Senate, however, voted it down the next day by a lopsided margin of 55-29. Beaten, and with Mink back from her daughter’s bedside, the House convincingly defeated the amendment 215-178 three days before the regulation was scheduled to take effect. With the major amendments defeated, and in the absence of any serious effort to scrap the legislation entirely, the Title IX regulations went into effect on July 21, 1975.58

  The passage of the Title IX regulations confirmed the importance of second-wave feminist organizations as powerful political forces in Washington. Well-organized, disciplined, and committed to their cause, feminists’ clout was especially critical in crisis situations such as the last-ditch efforts to scuttle the regulations. Even though sports were not
a major priority for many of these women's groups, they incorporated the issue into their agendas when it became so prominent in the Title IX debate. For example, the Washington Post reported that the Casey Amendment had been voted down in the House after members bowed to “week-long pressure from hundreds of women's rights lobbyists.” Maybe it only seemed that many. Said one of those “hundreds”: “There were only twenty-seven of us, but we were a talky bunch.”59

  The attention that athletics drew to Title IX had another, unintended, result. For every NCAA jeremiad predicting the end of football, the public also learned what second-class citizens women athletes were at all levels of the educational process. Discrimination in athletics produced clear and quantitative inequities that were so blatant they could not be denied. There is nothing abstract about men getting twenty new basketballs while women get the hand-me-downs, or female athletes piling into their coach’s station wagon while men travel by chartered bus or plane. Public awareness of the plight of women athletes increased their legitimacy and helped spread awareness of the broader issue of sexism in all aspects of educational life. Even though in many ways sports “hijacked” what was a general education bill, this outcome was neither surprising nor ultimately detrimental to the overall goals of the law.

  When Billie Jean King beat Bobby Riggs, hardly anyone outside of a small circle of Washington activists and HEW bureaucrats knew about Title IX. While women's sports were aggressively entering the national consciousness through events such as the Battle of the Sexes, the role of this specific law was still muted, uncertain. All that changed in the next two years, in large part because of the controversy that the athletics section of the law caused. Whereas in 1973 the phrase “Title IX” would have drawn only blank stares, by 1975 it was finally beginning to enter the vernacular as a symbol of women's new rights, athletic and otherwise. Bunny Sandler noticed the ripple effect: “it gave a tremendous impetus to women on campus—and to some men too and to students—to say, ‘What’s going on here is illegal. This violates Title IX.’”60

  In March 1976 members of the Yale women's crew team staged a dramatic protest that drew national attention to the glaring inequities facing women athletes and the potential of Title IX to change those conditions. Lacking access to shower facilities during their off-campus winter workouts, members of the women's team were forced to wait, cold and sweaty, on a bus for half an hour while the men’s team showered in the facility’s only locker room before jointly returning to campus. Angered at Yale’s slow response to their call for proper facilities, nineteen members of the crew team, led by captain Chris Ernst, strode into the office of Joni Barnett, the director of women's Athletics, and stripped off their sweat suits to reveal naked bodies with “Title IX” written on their backs and chests in blue magic marker. The story was picked up by the New York Times and other newspapers around the country. Soon after, the women's crew team got its showers.61

  ONE INTERESTING ASPECT of the history of Title IX is how little its implementation changed between the Republican administrations of Richard Nixon and Gerald Ford and the election of Democrat Jimmy Carter in 1976. Carter had a somewhat contested relationship with women's rights activists, and he never made Title IX enforcement a high priority.62 Republican HEW secretary Caspar Weinberger had a point when he said, “The most effective enforcement of all is a public which supports the law.” So did his Democratic successor, Joseph Califano, who was reportedly frustrated by the contentious battles over Title IX implementation: “Why did I have to be Secretary when this mess came up?”63

  The Department of Health, Education and Welfare had three main responsibilities in administering Title IX: 1) explaining the law to schools and colleges and advising the public of its rights under the law and what to do if those rights were denied; 2) investigating charges of discrimination filed by citizens; and 3) initiating investigations to make sure the nation’s 16,000 school districts were in compliance with the law. Obviously the delay until the summer of 1975 in finalizing regulations severely limited HEW’S ability to publicize and carry out its mandate. “To get Title IX regulations was like pulling teeth with your fingers,” recalled its Senate sponsor Birch Bayh. And yet even before the regulations were published, the department could have drawn on its general experience in handling civil rights complaints to rule that suspect practices such as barring girls from shop courses, offering six sports for boys and none for girls, or expecting female coaches to volunteer their time while men were paid were clearly prohibited by Title IX. Instead it tried to avoid taking controversial or politically sensitive stands, of which Title IX had more than its share, especially where athletics were concerned.64

  In 1974 the Legal Defense and Education Fund of the National Organization for Women established the Project on Equal Education Rights (PEER) to monitor progress in the enforcement of federal laws against sex discrimination in schools, including Title IX.65 Frustrated by the inability of HEW to provide adequate documentation of its efforts or results, in 1976 PEER initiated an analysis of every complaint regarding sex discrimination in elementary and secondary schools filed between June 23, 1972, and October 1, 1976. (Even though PEER excluded colleges and universities from its study, the enforcement patterns there were likely similar or possibly worse.) The title of PEER’S final report, Stalled at the Start, foreshadowed its negative assessment. While the report covered all aspects of education, athletics drew special scrutiny: “The disparity in support for boys’ and girls’ athletic programs is perhaps the single most visible piece of discrimination in American education.”66

  In the period under PEER’S study, HEW managed to resolve only one out of every five complaints filed, with two-to three-year delays not uncommon. More than a third of the complaints filed during 1973 were still unresolved three years later. This was not a question of tens of thousands of complaints flooding the office: HEW, with over one hundred people in eleven regional offices in addition to the staff in Washington, received 871 complaints for elementary and secondary schools and resolved only 179 in the four-year period surveyed. While the largest number of complaints concerned employment discrimination against women, the second-largest category was athletics.67

  According to PEER’S case-by-case analysis, investigations were cursory, usually consisting of little more than writing a letter to the school superintendent and then considering the case closed if he (and in those days, the superintendent was almost always male) claimed to be addressing the problem; rarely did HEW regional officials pay a site visit to investigate the complaint. Haphazard enforcement and failure to act on complaints undermined public and institutional respect for the law. In May 1974, the local chapter of the National Organization for Women filed complaints involving three school districts in Beaver County, Pennsylvania, to which the school districts were given thirty days to respond. Two replied but then did not hear anything again from HEW for almost two years; the third district never answered. Jeanne Doyle, the NOW activist who had organized the complaint, observed, “When we first filed our complaint, the school people were really nervous. Today, when you talk to someone in the school district, they just smile. They know nothing’s going to happen.” A HEW staffer confirmed that “Title IX is dead in a district that’s been treated that way.” And if HEW took two years to respond to a complaint, how serious could the threat of losing federal funds be?68

  Without clear leadership from Washington, it was just too easy for school districts to ignore or feign indifference to the law. For example, the 1975 regulations required that schools do a self-evaluation within a year, but very few schools made more than a cursory effort, or if they did, they did not forward the results to HEW. And even though HEW repeatedly said that the three-year adjustment period to end in July 1978 was not a waiting period (elementary schools only had one year; that deadline passed in July 1976) and that institutions must immediately begin taking steps to bring themselves into compliance with the law, many schools made only the most superficial changes or put t
hem off entirely.69

  In a pattern that would continue throughout Title IX’s troubled enforcement history, institutions said repeatedly that they could not go forward because they were confused about what the law required, especially where athletics was concerned. Cal Papatsos, the women's athletic director at Queens College, put it this way in 1976: “The tragedy is that when Title IX initially came out in 1972, it set high expectations because HEW promised all things to all people. Since the final regulations came in effect, I’ve been up and down the eastern seaboard and the only action I can see is people trying to figure out what it is. I see most people in a holding pattern.” In some ways this was a valid concern, since there were major ambiguities about how the law would play out. Just as likely, however, when institutions claimed they didn't understand the rules, what they were really saying was that they didn't want to make the required changes in the first place.70

  Schools and universities often had starkly different views of what was required. Some of the most apocalyptic language, not surprisingly, came from those with the most vested interest in the status quo. Alabama football coach Bear Bryant announced, “I’m all for women's athletics but if we had to split our budget, it would bankrupt us.” (HEW never considered requiring equal total expenditures on men’s and women's athletics.) Athletic Director Jim Kehoe of the University of Maryland, where the women's athletic budget hovered around 2 percent of the total, offered a similar mix of support and intransigence: “While I support philosophically the principle of equality, as a practical matter it just won't work.” As a result of such foot dragging, it is probably safe to say that no college or university in the country was in full compliance with the law when it officially went into effect on July 21, 1978, six long years after its initial passage.71