News
Civil Rights
Jul. 22, 2002
Eliminating Gender Divide
Forum Column - By Leslie T. Thornton - Title IX, which forbids sex discrimination in all programs at schools that receive federal aid, opened to women previously closed doors to medical and law schools, science programs and other then-male dominated pursuits. After 30 years, however, Title IX remains a polarizing law in its application to athletics, engendering slings from the conservative right, like George Will who calls it "affirmative androgyny."
Forum Column
By Leslie T. Thornton
Title IX, which forbids sex discrimination in all programs at schools that receive federal aid, opened to women previously closed doors to medical and law schools, science programs and other then-male dominated pursuits. After 30 years, however, Title IX remains a polarizing law in its application to athletics, engendering slings from the conservative right, like George Will who calls it "affirmative androgyny."
Such criticisms precipitated a federal lawsuit by the National Wrestling Coaches Association to stop the U.S. Department of Education from enforcing a 1996 regulatory clarification of the law's standards for compliance and caused the Bush administration to form a "panel" to evaluate the regulatory framework.
On some level, the acrimony about Title IX's application to athletics is unsurprising. Male-dominated athletic programs in schools have never wished to share either their prestige or their dollars, and many schools have incorrectly interpreted the rules to require that they drop men's programs to accommodate women's.
But Title IX compliance has never required schools to eliminate some athletic programs to make room for others. And as much progress as the law has achieved in 30 years, there is still no real parity in sports, important academic disciplines and in life.
In 1972 President Nixon signed Title IX of the education amendments, but it wasn't until 1979 that the education office, then the Department of Health, Education and Welfare, issued a final policy interpretation. The policy interpretation included a three-part test that later would become the heart of the controversy about the application of the law to sports.
It provided that the number of athletes from each gender at a school should be roughly equivalent to enrollment percentages and that a school should be able to show both a history and continuing practice of adding women's sports and that the athletic interests and abilities of women on its campus have been fully and effectively accommodated. Only one prong of the test must be met for a school to be in compliance.
In 1984, the U.S. Supreme Court held in Grove City College v. Bell, 465 U.S. 555 (1984), that Title IX does not apply to programs that do not directly receive federal aid, a decision that basically obviated its application to athletics.
But in 1988, Congress passed the Civil Rights Restoration Act which orders that all civil rights laws apply to all operations of a school receiving any federal funding, no matter the recipient program.
In 1996, the U.S. Department of Education attempted to clarify the 1979 policy, offering examples of how the three-part test can be applied, and in Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993), the court upheld the department's regulations, including the three-part test.
In January of this year, a coalition of coaches organized by the National Wrestling Coaches Association filed a suit against the education department arguing that the three-part test amounts to a "quota system."
In May, the U.S. Justice Department filed a motion to dismiss on technical grounds, hoping to delay any public pronouncement of its position. Motions and countermotions for summary judgment are pending.
Finally, on June 27, President Bush announced the formation of a panel to review the workings of Title IX and make recommendations regarding its application and enforcement.
Proponents of the law say they're afraid this is the first step to rolling back enforcement. Opponents say the naming of a panel does not go far enough. U.S. Education Secretary Rod Paige, a longtime college football coach, says the 15-member committee will be directed to make findings by Jan. 31, 2003, regarding how the law can be changed to ensure "fairness for all college athletics."
It is a fact that, when presidents appoint commissions to "study" and "make recommendations" about a law or policy, they have formed opinions about how they hope things will turn out, no matter what they say otherwise. They are hoping for support for their position, and there are always at least a few appointees who are firmly in the president's camp or otherwise loyal to him, along with other appointees whose contrary positions are well-known.
Bush's Commission on Athletic Opportunity is no different. While he has named strong and longtime proponents of Title IX to the panel, he also has named educators, and friends from enormously conservative institutions and other loyalists. But none of that is the real problem. Every president does it, and every president's efforts have met with varying success in accomplishing the goal of generating support for his preconceived ideology.
The problem is that we keep focusing on the athletics part of Title IX only and not the broader gender issues it was passed to address. Title IX's ban on sex discrimination in education included academics and employment. There is no doubt that, since its enactment, more women are going to college and more women are on college faculties. But wide gaps persist in important areas.
Dr. Shirley Ann Jackson, president of Rensselaer Polytechnic Institute in New York, reminds us of the importance of the law not just for advances for women in athletics but also for academics and the continuing need for its overall strong enforcement.
For example, in spite of the gains that have been made since Jackson received her doctorate in physics from Massachusetts Institute of Technology in 1973, only 20 percent of undergraduates in engineering programs today are women.
Similarly, University of Pennsylvania President Judith Rodin counsels that women still possess few leadership positions. There have been fewer than 20 women governors in history, and only six of the Fortune 500 companies are headed by women.
What does all of this have to do with parity in athletics? From a personal growth and accomplishment perspective, there is no question that participation in athletics teaches discipline, goal-setting, team work, hard work, competition and many other intangible but vastly important lifelong skills - for both men and women.
As important, however, it is critical that, in re-evaluating the impact of the law's rules related to athletics, we do not forget the underlying purpose and importance of the law - to level the playing field - not just in sports but in all endeavors.
We're not there yet, and if the athletics application of Title IX is changed to lessen a school's burden to ensure fairness, it will reverse the gains that have been made. Worse, any such changes in athletics likely will spill over to the other important areas the law was enacted to address, Will's protestations to the contrary notwithstanding.
Leslie T. Thornton, a public policy and litigation partner with Patton Boggs in Washington, D.C., was secretary of education chief of staff under President Clinton and chief policy and political liaison to the Clinton White House. The views expressed are hers alone.
By Leslie T. Thornton
Title IX, which forbids sex discrimination in all programs at schools that receive federal aid, opened to women previously closed doors to medical and law schools, science programs and other then-male dominated pursuits. After 30 years, however, Title IX remains a polarizing law in its application to athletics, engendering slings from the conservative right, like George Will who calls it "affirmative androgyny."
Such criticisms precipitated a federal lawsuit by the National Wrestling Coaches Association to stop the U.S. Department of Education from enforcing a 1996 regulatory clarification of the law's standards for compliance and caused the Bush administration to form a "panel" to evaluate the regulatory framework.
On some level, the acrimony about Title IX's application to athletics is unsurprising. Male-dominated athletic programs in schools have never wished to share either their prestige or their dollars, and many schools have incorrectly interpreted the rules to require that they drop men's programs to accommodate women's.
But Title IX compliance has never required schools to eliminate some athletic programs to make room for others. And as much progress as the law has achieved in 30 years, there is still no real parity in sports, important academic disciplines and in life.
In 1972 President Nixon signed Title IX of the education amendments, but it wasn't until 1979 that the education office, then the Department of Health, Education and Welfare, issued a final policy interpretation. The policy interpretation included a three-part test that later would become the heart of the controversy about the application of the law to sports.
It provided that the number of athletes from each gender at a school should be roughly equivalent to enrollment percentages and that a school should be able to show both a history and continuing practice of adding women's sports and that the athletic interests and abilities of women on its campus have been fully and effectively accommodated. Only one prong of the test must be met for a school to be in compliance.
In 1984, the U.S. Supreme Court held in Grove City College v. Bell, 465 U.S. 555 (1984), that Title IX does not apply to programs that do not directly receive federal aid, a decision that basically obviated its application to athletics.
But in 1988, Congress passed the Civil Rights Restoration Act which orders that all civil rights laws apply to all operations of a school receiving any federal funding, no matter the recipient program.
In 1996, the U.S. Department of Education attempted to clarify the 1979 policy, offering examples of how the three-part test can be applied, and in Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993), the court upheld the department's regulations, including the three-part test.
In January of this year, a coalition of coaches organized by the National Wrestling Coaches Association filed a suit against the education department arguing that the three-part test amounts to a "quota system."
In May, the U.S. Justice Department filed a motion to dismiss on technical grounds, hoping to delay any public pronouncement of its position. Motions and countermotions for summary judgment are pending.
Finally, on June 27, President Bush announced the formation of a panel to review the workings of Title IX and make recommendations regarding its application and enforcement.
Proponents of the law say they're afraid this is the first step to rolling back enforcement. Opponents say the naming of a panel does not go far enough. U.S. Education Secretary Rod Paige, a longtime college football coach, says the 15-member committee will be directed to make findings by Jan. 31, 2003, regarding how the law can be changed to ensure "fairness for all college athletics."
It is a fact that, when presidents appoint commissions to "study" and "make recommendations" about a law or policy, they have formed opinions about how they hope things will turn out, no matter what they say otherwise. They are hoping for support for their position, and there are always at least a few appointees who are firmly in the president's camp or otherwise loyal to him, along with other appointees whose contrary positions are well-known.
Bush's Commission on Athletic Opportunity is no different. While he has named strong and longtime proponents of Title IX to the panel, he also has named educators, and friends from enormously conservative institutions and other loyalists. But none of that is the real problem. Every president does it, and every president's efforts have met with varying success in accomplishing the goal of generating support for his preconceived ideology.
The problem is that we keep focusing on the athletics part of Title IX only and not the broader gender issues it was passed to address. Title IX's ban on sex discrimination in education included academics and employment. There is no doubt that, since its enactment, more women are going to college and more women are on college faculties. But wide gaps persist in important areas.
Dr. Shirley Ann Jackson, president of Rensselaer Polytechnic Institute in New York, reminds us of the importance of the law not just for advances for women in athletics but also for academics and the continuing need for its overall strong enforcement.
For example, in spite of the gains that have been made since Jackson received her doctorate in physics from Massachusetts Institute of Technology in 1973, only 20 percent of undergraduates in engineering programs today are women.
Similarly, University of Pennsylvania President Judith Rodin counsels that women still possess few leadership positions. There have been fewer than 20 women governors in history, and only six of the Fortune 500 companies are headed by women.
What does all of this have to do with parity in athletics? From a personal growth and accomplishment perspective, there is no question that participation in athletics teaches discipline, goal-setting, team work, hard work, competition and many other intangible but vastly important lifelong skills - for both men and women.
As important, however, it is critical that, in re-evaluating the impact of the law's rules related to athletics, we do not forget the underlying purpose and importance of the law - to level the playing field - not just in sports but in all endeavors.
We're not there yet, and if the athletics application of Title IX is changed to lessen a school's burden to ensure fairness, it will reverse the gains that have been made. Worse, any such changes in athletics likely will spill over to the other important areas the law was enacted to address, Will's protestations to the contrary notwithstanding.
Leslie T. Thornton, a public policy and litigation partner with Patton Boggs in Washington, D.C., was secretary of education chief of staff under President Clinton and chief policy and political liaison to the Clinton White House. The views expressed are hers alone.
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