June 23, 2022, will mark the 50th anniversary of Title IX of the Education Amendments of 1972. Surviving many challenges through the decades, it is arguably one of the most significant pieces of civil rights legislation in America’s history. Berniece Sandler, the godmother of Title IX stated that, “Title IX is probably the most important law passed for women and girls in Congress since women obtained the right to vote in 1920.” It may also be the most misunderstood. Title IX is most often identified with promoting opportunities for sports participation for females in athletics yet neither the word “sports” nor the word “athletics” are mentioned in the original 37-word statute.
Title IX of the Education Amendments of 1972 is a comprehensive law prohibiting discrimination on the basis of sex in all programs or activities in all federally funded educational institutions including high schools and middle schools. Since the enactment of Title IX, there has been a dramatic increase in interscholastic and intercollegiate athletic opportunities for girls and women. Few laws have influenced high school sports more than Title IX.
Title IX is patterned after Title VI of the Civil Rights Act of 1964, the portion of the landmark law that prohibits discrimination on the basis of race, color and national origin in federally funded programs. Shortly after the passing of the Civil Rights Act, Congress began to recognize that sex discrimination in education programs necessitated legislation as well.
In 1970, a special House Subcommittee on Education first held hearings regarding sex discrimination in higher education. During these hearings, several legislators recognized the extent of pervasive discrimination against women with regard to opportunities in education. As a result, these legislators introduced Title IX that would eventually be the mechanism to initiate sex-based protections in educational institutions receiving federal funding. Congresswoman Edith Green of Oregon and Patsy Mink of Hawaii co-authored the statute and Senator Birch Bayh of Indiana introduced it. The original 37-word statute reads:
“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.”
Congress passed Title IX with two general objectives: to avoid the use of federal funding to support discriminatory practices and to protect individual citizens against those practices. Generally, the original statute refers in a broad sense to “any education program or activity.” The need to address sex discrimination in athletics came into focus when the proposed regulation to implement the original statute was heard by Congress in 1974.
Congress heard testimony that Title IX would damage or even end college sports. The public comment period for the proposed Title IX regulations generated nearly 10,000 comments most of which concerned athletics. Senator John Tower of Texas introduced an amendment to exempt any revenue-producing sports from Title IX. The amendment did not pass. Consequently, Congress adopted an amendment in 1974 to develop reasonable provisions regarding the nature of particular sports. And, in 1975, the Office for Civil Rights (OCR) within the U.S. Department of Health, Education and Welfare (HEW), the enforcement agency of Title IX at the time, issued its regulation regarding Title IX enforcement as it applies to athletics:
“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.”
The regulation provided that high schools and colleges that receive federal funds will be given three years to comply with Title IX and elementary schools receiving federal funds will be given one year. However, compliance was slower than envisioned. By 1978, the OCR had received nearly 100 athletics complaints, but at the time there were no department guidelines for investigating athletic programs.
In 1980, the Department of Education Organization Act restructured the Title IX oversight responsibilities. Title IX oversight responsibilities were assigned to the newly established Department of Education (DOE) and specifically to DOE’s Office for Civil Rights. Title IX enforcement remains with the OCR today.
A significant challenge to Title IX came in 1984 when the U.S. Supreme Court ruled in Grove City v. Bell that Title IX applied only to those education programs receiving direct federal funds. Congress reversed Grove City legislatively by passing the Civil Rights Restoration Act, restoring Title IX coverage to all of a school’s programs and activities, including athletics programs.
The 1990s brought several high-profile court cases that centered around the three-part test under the “accommodation of interests and abilities” which was outlined in the 1979 Policy Interpretation. The three-part test is the compliance criteria that requires schools to provide equal opportunity for female and male students to become athletics participants. The three-part test also attracted the attention of Congress during the 1990s.
In May 1995, at a Congressional hearing, members of Congress expressed concerns that the OCR was requiring institutions to comply with part one of the three-part test – substantial proportionality. As a result of Congress’s focus on this area, the OCR issued the “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test” in January 1996. One such significant court case decided in 1996, Cohen v. Brown University, was the first Title IX athletics case to examine how a federal court would review the three-part test. This landmark case helped clarify how schools across the country should handle students’ athletic opportunities using the three-part test.
2002 marked the 30th anniversary of Title IX and with it came another challenge to the law. The debate again centered around the three-part test and its application. President George W. Bush assigned Rod Paige, the U.S. Secretary of Education, to form a Commission on Opportunity in Athletics to review the application of the three-part test. After reviewing the Commission’s recommendations, the OCR determined that the three-part test would remain with no changes.
However, in 2005, the OCR issued clarification for test three (full accommodations of interests and abilities) by allowing schools to conduct an email survey to determine interests and permitted a non-response to the survey to stand as evidence as lack of interest. In 2010, the OCR rescinded this policy and reverted back to the guidance in the 1996 Policy Clarification for the three-part test.
The Jackson v. Birmingham Board of Education case decided in 2005 brought attention to retaliation against anyone bringing a complaint on a school district regarding disparate treatment in an athletics program. Broderick Jackson, a male high school basketball coach and teacher complained to his supervisor that female athletes did not receive equal funding and equal access to athletic equipment and facilities. After Jackson complained, he received a negative coaching evaluation and was removed as the team’s coach. Jackson sued the school district for retaliation under Title IX. In ruling for the plaintiff and sustaining the lower courts’ holdings, the U.S. Supreme Court reasoned:
“But if Title IX’s private right of action does not encompass retaliation claims, the teacher would have no recourse if he were subsequently fired for speaking out. Without protection from retaliation, individuals who witness discrimination would likely not report it, and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administration.”
Through its almost 50 years of history, Title IX has grown from a 37-word statute to a large body of law including “interpretations,” “clarifications” and “Dear Colleague Letters.” These documents have been the guidance for courts and educational institutions in efforts to comply with the law. The OCR regulation of athletics and sexual harassment took many years to develop. In contrast, Title IX’s guidance regarding the participation of transgender student- athletes is emerging rapidly as schools work to accommodate their full participation.
As we celebrate the 50th anniversary of Title IX and reflect on its legislative evolution, it is important to remember some important tenets about the law.
Senator Birch Bayh once quipped, “Title IX is rather simple: don’t discriminate on the basis of sex.” Schools have a responsibility to provide equal educational opportunities to all students. Participation in education-based athletics is an opportunity that all schools must strive to provide without regard to gender. School leaders must make the effort to learn about the law, understand the letter and spirit of the law and seek assistance when they are uncertain about the application of the law. In this 50th anniversary year of Title IX, schools can celebrate by making a commitment to monitor and assess their education- based athletics program for Title IX compliance as a best practice every year.
Women’s Sports Foundation: https://www.womenssportsfoundation.org/advocacy/history-of-title-ix/
National School Boards Association: https://cdn-files.nsba.org/s3fs-public/09.%20MarshallFreeman%20Title%20IX%20 ThreeProng%20Test.pdf
National Federation of State High School Associations: http://nfhs.org/resources/title-ix/
U.S. Department of Education: https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html, https://www.ed.gov/news/pressreleases/us-department-education-confirms-title-ix-protects-students-discrimination-based-sexual-orientation-and-gender-identity
Peg Pennepacker, CAA, served 36 years in public education, 30 years of which were as a high school athletic director. She is an NIAAA national faculty member and instructor for the four legal issues in athletics courses. She is a member of the High School Today Publications Committee and currently a school board member in the Upper Perkiomen School District, Pennsburg, Pennsylvania. Peg can be contacted at email@example.com or 814-470-7101.