by Susan Ware
15 “Sex Discrimination and Intercollegiate Athletics: Putting Some Muscle on Title IX,” Yale Law Journal 88 (May 1979): 1264.
16 Sandler, “‘Too Strong for a Woman,’“7-8. Sandler also paid tribute to Rep. Green's skill as a politician, and her connections. “She was able to get the men on that committee to support the bill primarily because it was her bill! They owed her one or more or whatever. So she got their support.”
17 Quoted in Amy Erdman Farrell, Yours in Sisterhood: Ms. Magazine and the Promise of Popular Feminism (Chapel Hill: University of North Carolina Press, 1998), 18.
18 Gwen Gregory oral history, Dunkle, SL; Stanley Kutler, The Wars of Watergate (New York: Knopf, 1990), 361.
19 For example, a group of Michigan activists filed a fifty-eight-page complaint with twenty-four exhibits charging “Gross Discrimination in Athletics Against Women at the University of Michigan” on August 19, 1973. The effort was spearheaded by local NOW activist Marcia Federbush, along with six other complainants, including one undergraduate, Barb Stellard, who at one point played Little League “until she doffed her hat after hitting a home run.” Two years later nothing had happened in the case. See Federbush to Caspar Weinberger, August 19, 1973, and Federbush to Peter Holmes, August 1, 1975, PEER, SL. There is also additional documentation in NOW, SL.
20 J. Stanley Pottinger to Bernice Sandler, July 27, 1972, Dunkle, SL; Dunkle notes, August 4, 1972, Dunkle, SL; Dunkle to Bertrand [sic] Taylor, August 9, 1972, PEER, SL.
21 Unedited transcript of oral history of Bernice Sandler conducted by Julia Lamber and Jean Robinson, June 28–29, 2004, 50, found in Sandler, SL. This oral history was separate from the Bernice Sandler oral history done by the Equality Center. She made a similar point when I interviewed her in February 2008. See also Sandler, “Title IX,” 473.
22 Gwen Gregory to J. Stanley Pottinger, “Sex Discrimination in Athletics,” October 4, 1972, Dunkle, SL. This memo is the closest thing to a smoking gun that I found: the first sustained attention to the issue.
23 Deborah Brake, “The Struggle for Sex Equality in Sport and the Theory Behind Title IX,” University of Michigan Journal of Law Reform 34 (Fall 2000/Winter 2001): 25; Gregory to Pottinger, “Sex Discrimination in Athletics”
24 Gregory to Pottinger, “Sex Discrimination in Athletics,” and Pottinger response, October 20, 1972, Dunkle, SL.
25 Ann Scott, “It's Time for Equal Education,” Ms., October 1973, 122–25. She also discusses the recently passed Equal Rights Amendment, which had already been ratified by twenty states. Another early reference appeared in the newsletter On Campus with Women, November 1972, which made a brief parenthetical reference that the regulations being drafted for Title IX were expected to cover sex discrimination in sports.
26 Handwritten note on letter from Grant to Pottinger, January 28, 1973, Dunkle, SL; Bunny Sandler to Ruth Bader Ginsburg, February 8, 1973, PSEW, SL. Professor Ginsburg, who had recently left Rutgers for Columbia, was very much on top of all these developments.
27 Memo, Margaret Dunkle to “Bunny,” April 11 [1973], Dunkle, SL; Margaret Dunkle, “Equal Opportunity for Women in Sports,” April 13, 1973, Dunkle, SL.
28 Bil Gilbert, “Thank Heaven for …”, Sports Illustrated, November 27, 1967, 72–74; Bil Gilbert and Nancy Williamson, “Sport is Unfair to Women,” Sports Illustrated, May 28, 1973, 88, 90. See also personal communication from Bil Gilbert to Susan Ware, October 24, 2005.
29 Parts two and three of the series were Bil Gilbert and Nancy Williamson, “Are You Being Two-Faced?” Sports Illustrated, June 4, 1973, 44–50, 53–54; and Gilbert and Williamson, “Programmed to Be Losers,” Sports Illustrated, June 11, 1973, 60–62, 65–66, 68, 73.
30 “Guidelines on Equality of Sexes Due from Government in January,” Chronicle of Higher Education, November 5, 1973, 4. There is some confusion about when the NCAA learned that sports would be included. The “historical note” that accompanies the NCAA memo, February 21, 1974, presents this detailed chronology: “Although the educational community has been aware of the general implications of Title IX since its passage in 1972, its application to intercollegiate athletics came as a surprise. We understand athletics was not covered in the initial draft of the regulations in February, 1973. First public knowledge of the application to athletics came at an early November, 1973 meeting of the Association for Intercollegiate Athletics for Women. Immediate inquiry to HEW brought a response that the regulations were not final and it was not until mid-December that a copy was made available to the NCAA.” [Dunkle, SL] It is extremely unlikely, however, that the NCAA didn't have some inkling before then. For example, presumably they subscribed to Sports Illustrated and would have read the series on women in sports in May and June 1973. Perhaps it is best to rephrase the question as, when did it really sink in that Title IX could be a threat warranting NCAA action? That awareness was certainly rising by the summer of 1973.
31 Elizabeth M. Bolton, “Legislating Equity: The History of Title IX” (M.A. thesis, American University, 2008), 51; U.S. Senate, Committee on Labor and Public Welfare, Subcommittee on Education, Hearings on the women's Educational Equity Act, October 17 and November 9, 1973, 93rd Cong., 1st sess. (Washington, D.C.: Government Printing Office, 1973), 83. See also “Billie Jean King Tells Senators of Bias in School Sports,” Chronicle of Higher Education, November 19, 1973, 5.
32 U.S. Senate, Hearings on the women's Educational Equity Act, 1973, 77, 81, 82. At the request of Senator Mondale's office, King had help preparing her testimony from Bunny Sandler (and probably Margaret Dunkle, too) at the Project on the Status and Education of Women. See Sandler to Billie Jean King, October 26, 1973, PSEW, SL. For more on the scope and history of the WEEA, see Andrew Fishel and Janice Pottker, National Politics and Sex Discrimination in Education (Lexington, Mass.: D.C. Heath, 1977), chapter 4; and Irene Tinker, ed., Women in Washington: Advocates for Public Policy (Beverly Hills, Calif.: Sage Publications, 1983).
33 For background on the NCAA, see Ying Wushanley, Playing Nice and Losing: The Struggle for Control of women's Intercollegiate Athletics, 1960–2000 (Syracuse, N.Y.: Syracuse University Press, 2004); Brian L. Porto, A New Season: Using Title IX to Reform College Sports (Westport, Conn.: Praeger, 2003); and Suggs, A Place on the Team.
34 William A. Sievert, “NCAA Concerned About Legality of its Exclusion of Women,” Chronicle of Higher Education, January 17, 1972, 1, 4. See also Ying Wu, “Early NCAA Attempts at the Governance of women's Intercollegiate Athletics, 1968–1973,” Journal of Sport History 26 (Fall 1999): 585–601.
35 Margot Polivy oral history, Dunkle, SL. This incident took place in 1979; the skeptic was Duke president Terry Sanford, who was spearheading a public relations effort against Title IX at the time.
36 For a general overview, see Michael Oriard, King Football: Sport and Spectacle in the Golden Age of Radio and Newsreels, Movies and Magazines, the Weekly and the Daily Press (Chapel Hill: University of North Carolina Press, 2001).
37 Candace Lyle Hogan, “Football is Hardly Sugar Daddy,” New York Times, December 10, 1978, 52.
38 “Give ‘Em a Break, Ma’am,” Washington Post, February 10, 1974, C7; Sports Illustrated Scorecard, January 28, 1974; “Rules Due to Aid Women in Sports,” New York Times, February 9, 1974, 21. See also Ellen Weber, “The Long March,” womenSports, September 1974, 34–46; Margaret Dunkle, “College Athletics: Tug-of-War for the Purse Strings,” Ms., September 1974, 114, 117; and Dunkle, “What Constitutes Equality for Women in Sport? Federal Law Puts Women in the Running” (Washington, D.C.: Project on the Status and Education of Women, Association of American Colleges, 1974).
39 “Memorandum to Chief Executive Officers of NCAA Member Institutions,” February 21, 1974, Dunkle, SL; Cheryl M. Fields, “Fear of Effect on Athletics Delays Sex-Bias Guidelines,” Chronicle of Higher Education, March 18, 1974, 5. The article quotes from the NCAA memo of February, but also quotes Gwen Gregory complaining that they are misstating what the regulations would do, in
cluding “one of the most persistent and untrue reports” that HEW would require equal funding of men's and women's sports, despite an explicit statement that this was not true.
40 “Sports May be Excluded from Equality Guidelines,” Chronicle of Higher Education, April 22, 1974, 4.
41 Gwen Gregory recalled that HEW had at first tried to avoid publicity, but quickly learned how useful it could be: “in fact it turned out to be our greatest ally.… I think the publicity really did help a lot, because they say that a law that is not accepted by the public at large is a useless law. Before all the publicity, we did not have the grass roots support for Title IX and the concept of equality in the schools.” Gregory oral history, Dunkle, SL.
42 For more on the Tower Amendment, see Fishel and Pottker, National Politics and Sex Discrimination, 82–83; and Blumenthal, Let Me Play, 66–68.
43 Billie Jean King form letter, June 7, 1974, Dunkle, SL. A subsequent amendment, sponsored by Senator Jacob Javits of New York in July and included in the Education Amendments of 1974 enacted in August, clarified that Title IX regulations must take into account the nature of particular sports, in effect saying that spending $1,000 to outfit a male football player and only $100 on a female swimmer would not automatically count as discrimination. The Javits Amendment finally put to rest the NCAA contention that athletics were not covered by Title IX. Blumenthal, Let Me Play, 68, says the Javits Amendment was drafted by Margot Polivy, the attorney for the Association for Intercollegiate Athletics for Women, a view seconded by Margaret Dunkle. Memorandum by Dunkle to “Jill,” February 26, 1986, Dunkle, SL.
44 Robert Perrin, “Making Everyone Into a Minority,” Washington Post, February 10, 1975, A21. One area that was left out of the regulations was a provision prohibiting discrimination in textbooks and other curricular materials. Even though HEW recognized that sex stereotyping was a serious problem, it concluded that regulating textbook content would raise insurmountable First Amendment issues.
45 “Guidelines Under Fire,” Chronicle of Higher Education, July 8, 1974, 8; Federal Register 39 (June 20, 1974): 22236, reprinted in Suggs, A Place on the Team, 208–9; Gwen Gregory oral history, Dunkle, SL. HEW wouldn't have had the authority to require equal aggregate expenditures anyway because it was only charged with addressing discrimination against individuals. See also Martin Gerry oral history, Dunkle, SL, on extension.
46 According to Terry H. Anderson, The Pursuit of Fairness: A History of Affirmative Action (New York: Oxford University Press, 2004), the zenith of affirmative action was the late 1960s and early 1970s. The divided Supreme Court decision in Regents of the University of California v. Allan Bakke (1978) signaled the onset of a backlash.
47 Welch Suggs, “Title IX Has Done Little for Minority Female Athletes—Because of Socioeconomic and Cultural Factors, and Indifference,” Chronicle of Higher Education, November 30, 2001, 35. See also Yevonne Smith, “Sociohistorical Influences on African American Elite Sportswomen,” in Dana Brooks and Ronald Althouse, eds., Racism in College Athletics: The African American Athlete's Experience (Morgantown, W. Va.: Fitness Information Technology, 2000), 173–98; and women's Sports Foundation, “Title IX and Race in Intercollegiate Sport” (East Meadow, N.Y., 2003).
48 “HEW Head Says Title IX Won't ‘Bankrupt’ Schools,” New York Times, June 27, 1975, 15.
49 See Hon. Bella Abzug, Congressional Record, July 18, 1974, 24222–24228 for WEAL's perspective. (Abzug's remarks were actually written by Bunny Sandler and Margaret Dunkle. See Margaret Dunkle to “Jill,” February 26, 1986, Dunkle, SL.) For NOW's critique, see chapter 5.
50 NCAA to Weinberger, October 15, 1974, PEER, SL. The comments run thirty-one pages, single-spaced, and read like a legal brief, complete with case citations.
51 Martin Gerry put it more bluntly, calling the process a “political shell game”: “The regulations had to be changed in the final version to show responsiveness.” Gerry oral history, Dunkle, SL. One solution was to craft concessions to the male sports establishment that focused more on process than substance.
52 “Anti-Sex-Bias Rules: White House Reviewing Proposals,” Chronicle of Higher Education, March 10, 1975, 10; Cheryl M. Fields, “H.E.W. Softens Bias Stand,” Chronicle of Higher Education, April 7, 1975, 1, 11; Michael Scott quoted in Gerald Eskenazi, “Title IX Rules Issued for Equality in Sports,” New York Times, June 4, 1975, 29. In turn, Weinberger often voiced exasperation with the NCAA. In testimony before Congress on June 26, 1975 (Dunkle, SL), to a list of things that Title IX did not require (like equal expenditures, coed showers, or requiring women to play football with men), he added a seventh: “It does NOT mean the National Collegiate Athletic Association (NCAA) will be dissolved and will have to fire all of its highly vocal staff.”
53 Cheryl M. Fields, “H.E.W. Softens Bias Stand,” 1, 11. Senator Birch Bayh's decision in December 1974 to support an amendment that exempted sororities and fraternities stemmed from a similar inclination: exempt a small but highly emotional element in order to forestall other efforts to weaken the whole law. The contact sports exclusion was not the last word, however. Girls have successfully sued to play contact sports under the equal protection clause of the Fourteenth Amendment. See Sarah K. Fields, Female Gladiators: Gender, Law, and Contact Sport in America (Urbana: University of Illinois Press, 2005). See also chapter 5.
54 Federal Register 40 (June 4, 1975): 24142–43. See also Dunkle, “What Constitutes Equality.”
55 This account draws heavily on Therese Pasquale and Margaret Dunkle, “An Upset Victory for Women: The blow-by-blow story of the battle for equal rights in education,” Women's Agenda, June 1976. See also Margaret Dunkle, “Title IX: New Rules for an Old Game,” Capitol Hill Forum, July 28, 1975.
56 Bunny Sandler oral history, Dunkle, SL. Fishel and Pottker, National Politics and Sex Discrimination, make the link between activism for the WEEA and Title IX on p. 91.
57 Pasquale and Dunkle, “An Upset Victory for Women.” One of those buttons, courtesy of Margaret Dunkle, hangs above my desk as I write.
58 Pasquale and Dunkle, “An Upset Victory for Women”
59 Blumenthal, Let Me Play, 74. For the original quote, see Eric Wentworth, “Ban on Sex Integration is Rejected,” Washington Post, July 19, 1975, A1. For more on women's influence, see Tinker, Women in Washington; and Joyce Gelb and Marian Lief Palley, Women and Public Policies: Reassessing Gender Politics (Charlottesville: University Press of Virginia, 1996).
60 Sandler oral history, Dunkle, SL.
61 For more on the episode, including a copy of the letter of protest, see Susan Ware, Title IX: A Brief History with Documents (Boston: Bedford/St. Martin's, 2007). See also the documentary film by Mary Mazzio, A Hero for Daisy (1999).
62 See Susan Hartmann, “Feminism, Public Policy, and the Carter Administration,” in Gary M. Fink and Hugh Davis Graham, eds., The Carter Presidency: Policy Choices in the Post-New Deal Era (Lawrence: University Press of Kansas, 1998); and Marjorie J. Spruill, “Gender and America's Right Turn: The 1977 IWY Conferences and the Polarization of American Politics,” in Bruce Schulman and Julian Zelizer, eds., Rightward Bound: Making America Conservative in the 1970s (Cambridge: Harvard University Press, 2008).
63 Candace Lyle Hogan, “Shedding Light on Title IX,” womenSports, February 1976, 45; Cheryl M. Fields, “HEW Policy on Sports Bias Raises New Questions,” Chronicle of Higher Education, December 11, 1978, 9.
64 Project on Equal Education Rights, Stalled at the Start: Government Action on Sex Bias in the Schools (Washington: NOW Legal Defense and Education Fund, 1978), 17. HEW's record was the most deficient in the third category: only twelve independent investigations were launched, with few tangible results.
65 In November 1974 WEAL, along with the National Education Association, the National Organization for Women, the National Student Association, the Federation of Organizations for Professional Women, and the Association for Women in Science, filed suit in U.S. District Court for the District of Columbia,
charging HEW with failure to fulfill its responsibility to enforce Title IX (WEAL v. Califano). As a result of the suit, HEW was ordered in December 1977 to move forward according to a timetable, and to close all complaints by September 1979. HEW also decided to initiate its own compliance reviews, rather than relying just on complaints that had been filed. See United States Commission on Civil Rights, More Hurdles to Clear: Women and Girls in Competitive Athletics, Clearinghouse Publication no. 63 (Washington, D.C.: United States Commission on Civil Rights, July 1980), 33.
66 PEER, Stalled at the Start, 5, 13. See also the extensive PEER records at the Schle-singer Library.
67 PEER, Stalled at the Start, 19, 33–34.
68 Ibid., 22, 30.
69 See the September 1975 Sports Memorandum found in United States Commission on Civil Rights, More Hurdles to Clear, 4. This memo on the subject of “Elimination of Sex Discrimination in Athletic Programs” was an attempt to diffuse some of the fears raised by the July regulations, but it was more of a public relations effort and broke no new ground in terms of coverage and compliance.
70 Hogan, “Shedding Light on Title IX,” 44.
71 Mary Jo Festle, Playing Nice: Politics and Apologies in women's Sports (New York: Columbia University Press, 1996), 127; Nancy Scannell, “Title 9 Crackdown Nears,” Washington Post, July 20, 1978, F1. See also Cheryl M. Fields, “July 31: Title IX Deadline,” Chronicle of Higher Education, November 14, 1977, 9–11.
72 Cheryl M. Fields, “Spend About the Same on Women Athletes As on Men, Government Will Tell Colleges,” Chronicle of Higher Education, November 20, 1978, 1, 7; “Sex-Bias Rules Would Protect Bigtime Football,” Chronicle of Higher Education, December 11, 1978, 13; Fields, “HEW Policy on Sports Bias Raises New Questions,” Chronicle of Higher Education, December 18, 1978, 9.
73 “As Criticism Continues, U.S. Prepares Final Policy on Sex-Bias in Sports,” Chronicle of Higher Education, March 19, 1979, 4; Joan Ryan, “Crisis Time for Equality,” Washington Post, April 20, 1979, D1; Cheryl M. Fields, “women's Sports Groups Campaign to Preserve Proposed Anti-Bias Rules,” Chronicle of Higher Education, April 23, 1979, 19. The NCAA was appealing its case challenging the inclusion of athletics at this point.