Title IX

The Transformation of Sex Discrimination in Education

Elizabeth Kaufer Busch, William E. Thro

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317425113
• Edition: 1
• Topic: History
• Subtopic: North American History
• Index: History

This book examines the history and evolution of Title IX, a landmark 1972 law prohibiting sex discrimination at educational institutions receiving federal funding. Elizabeth Kaufer Busch and William Thro illuminate the ways in which the interpretation and implementation of Title IX have been transformed over time to extend far beyond the law's relatively narrow statutory text. The analysis considers the impact of Title IX on athletics, sexual harassment, sexual assault, and, for a time, transgender discrimination. Combining legal and cultural perspectives and supported by primary documents, Title IX: The Transformation of Sex Discrimination in Education offers a balanced and insightful narrative of interest to anyone studying the history of sex discrimination, educational policy, and the law in the contemporary United States.

CHAPTER 1
The Adoption of Title IX

A Ban on Sex Discrimination in Education

On June 23, 1972, Richard Nixon signed Title IX into law as part of the Educational Amendments of 1972.¹ Co-sponsored by Senator Birch Bayh and Congresswoman Patsy Mink, the law states:

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.²

Considered by themselves, these thirty-seven words seem neither revolutionary nor controversial in twenty-first-century America, and yet Title IX’s subsequent transformation would come to mark a number of critical moments in the history of women’s rights, infusing every aspect of education in the United States. Title IX’s passage produced immediate changes to the 1970s classroom, altering the opportunities of students and teachers across the country. Yet, the most monumental changes were to come.

Since the critical moment of its passage, the Federal Executive Branch and the U.S. Supreme Court (SCOTUS) have expanded and transformed Title IX’s enforcement, scope, meaning, and goals. Students today can invoke Title IX not only to receive equal opportunities in admissions, activities, and programs, but also to attain equal numerical outcomes in athletics, receive protection against sexual harassment and assault by teachers or students, and recover monetary damages when a school fails to ensure any of these things. These changes have been enacted, not by Congress, the legislative body whose primary purpose is to create law, but by appointed officials in the agency responsible for enforcing Title IX— the U.S. Department of Education’s Office for Civil Rights (OCR).³ Although the Supreme Court facilitated the statute’s transformation, the OCR’s informal guidance documents and Dear Colleague letters created substantive changes to Title IX, which have been embraced by supporters and shunned by critics. The minimal role of Congress in the transformation of Title IX provides a window into the process by which civil rights laws have been extended in the United States.

This book chronicles five critical moments in Title IX’s development, each of which has played a significant role in transforming the meaning of sex equality and discrimination “on the basis of sex.” These moments include the law’s passage (Chapter 1), the establishment of a Three-Part Test for athletics (Chapter 2), the finding of jurisdiction and monetary liability for sexual harassment (Chapter 3), the requirement of campus judicial systems for adjudicating allegations of sexual assault (Chapter 4), and the attempted ban against gender identity discrimination (Chapter 5).

Throughout the book we use the terms “transformation” and “expansion” to describe the evolution of Title IX’s meaning and jurisdiction. An “expansion,” refers to a legitimate change to the statute enacted by congressional authority to amend the law or by the federal courts adopting a construction consistent with Title IX’s original public meaning. There have been two key expansions—one initiated by Congress and one by the Supreme Court. Congress significantly altered Title IX when it passed the Civil Rights Restoration Act in 1987, which extended the jurisdiction of Title IX to the entire operation of a school receiving federal funding in any area. Previously, Title IX had only applied to programs that directly received federal funding.⁴ The Supreme Court led the second expansion after the concept of “sexual harassment” entered the legal lexicon.⁵ In two separate cases—Franklin v. Gwinnett County Public Schools and Gebser v. Lago Vista Independent School District—the Court expanded Title IX jurisdiction to cover known acts of sexual harassment by a teacher on a student.⁶

The term “transformation” signifies a change in policy beyond the original public meaning of Title IX’s text, which may alter the content of the law, such as requiring a novel notion of non-discrimination, or create a new requirement not evident in the statutory language, such as requiring colleges to institute internal justice systems for trying sexual assaults. The emphasis throughout the book is on the creation and impact of key transformations to Title IX, which have altered a 37-word law into hundreds of legal requirements.⁷ The transformations impose specific policy preferences that typically aim to expand the protections for women. The transformations described throughout the book tend to be more controversial than expansions because they are enacted by unelected bureaucrats in the Office for Civil Rights or appointed justices on the Supreme Court, rather than elected lawmakers in Congress. Each chapter of the book highlights one of these transformations.

The remainder of this chapter outlines the steps in Title IX’s passage, the individuals who enacted the legislation, the law’s statutory meaning, and the ways in which Title IX is enforced.

BEFORE TITLE IX

The struggle to end sex discrimination in education emerged alongside the civil rights movement against racial discrimination in the 1950s and 1960s, which culminated with the passage of the Civil Rights Act of 1964. A century prior, the Fourteenth Amendment was passed during the Civil War Reconstruction period in order to assist in integrating African Americans and freed slaves into mainstream America with the privileges and protections guaranteed to all citizens. The amendment guaranteed “to any person within its jurisdiction the equal protection of the laws” and guaranteed to all citizens certain “privileges and immunities,” which include “due process of law.” Though early women’s rights advocates such as Myra Bradwell attempted to use the Fourteenth Amendment as a guarantor of equal opportunities for women, the Supreme Court initially refused to recognize a prohibition on sex discrimination.⁸ Not until four years after the passage of Title IX, did the Supreme Court in Craig v. Boren (1976) interpret the Equal Protection Clause as a prohibition on governmental sex-based distinctions.⁹

THE FOURTEENTH AMENDMENT’S EQUAL PROTECTION CLAUSE

The Fourteenth Amendment, ratified in 1868, mandates States provide “equal protection of the laws” to all persons (not just citizens) within its borders. This Equal Protection Clause is particularly relevant to Title IX. While a literal reading of the text would suggest that government might never discriminate, the reality is that government discriminates all the time. Poor people pay less tax than rich people do. Students with low grades and test scores are denied admission to state universities. The Supreme Court generally allows governmental discrimination except where the basis for the discrimination is an immutable characteristic such as race, sex, national origin, and the marital status of one’s parents. When the government employs those classifications, the Court employs heightened scrutiny and usually invalidates the government’s classification.

The initial failures to utilize the Fourteenth Amendment to expand women’s rights led activists to attempt other methods. One strategy was to lobby Congress to pass targeted employment or education laws geared towards ensuring equal opportunities for women. These laws tended to be narrow and were modeled after the Civil Rights Act of 1964, which utilized the federal regulatory system to incentivize compliance.¹⁰ The second and more comprehensive approach was to propose an Equal Rights Amendment (ERA) to the U.S. Constitution. Both strategies carried promise, but the ultimate failure of the ERA led activists to focus their energies on laws such as Title IX to expand women’s rights.

1961 marked the first year in which educational equity for girls and women was brought into the public eye. This was the year that President Kennedy established the President’s Commission on the Status of Women (PCSW) and tasked it with recommen...