|Long title||An Act to amend the Higher Education Act of 1965, the Vocational Education Act of 1963, the General Education Provisions Act (creating a National Foundation for Postsecondary Education and a National Institute of Education), the Elementary and Secondary Education Act of 1965, Public Law 874, Eighty-first Congress, and related Acts, and for other purposes.|
|Nicknames||Education Amendments of 1972|
|Enacted by||the 92nd United States Congress|
|Effective||June 23, 1972|
|Statutes at Large||86 Stat. 235|
|Titles amended||20 U.S.C.: Education|
|U.S.C. sections created||20 U.S.C. ch. 38 § 1681 et seq.|
|United States Supreme Court cases|
|Education in the United States|
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Title IX is a portion of the United States Education Amendments of 1972, Public Law No. 92‑318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681–1688, co-authored and introduced by Senator Birch Bayh; it was renamed the Patsy Mink Equal Opportunity in Education Act in 2002, after Patsy Mink, its late House co-author and sponsor. It states (in part) that:
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.
Foundation and hearings
Although the Civil Rights Act of 1964 was written in order to end discrimination in various fields based on sex, religion, race, color, or national origin, in the area of employment, the 1964 Act did not include any prohibition on gender discrimination in public education and federally assisted programs but it did energize the women's rights movement, which had somewhat slowed after women's suffrage in 1920. While Title IX is best known for its impact on high school and collegiate athletics, the original statute made no explicit mention of sports.
In 1967, President Lyndon Johnson sent a series of executive orders in order to make some clarifications. Before these clarifications were made, the National Organization for Women (NOW) persuaded President Johnson to include women in his executive orders. Most notable is Executive Order 11375, which required all entities receiving federal contracts to end discrimination on the basis of sex in hiring and employment.
In 1969, Bernice Sandler used the executive order to help her fight for her job at the University of Maryland. She used university statistics showing how female employment at the university had plummeted as qualified women were replaced by men. Sandler brought her complaints to the Department of Labor's Office for Federal Fair Contracts Compliance where she was encouraged to file a formal complaint. Citing inequalities in pay, rank, admissions and much more, Sandler began to file complaints not only against the University of Maryland but numerous other colleges as well. Working in conjunction with NOW and Women's Equity Action League (WEAL), Sandler filed 269 complaints against colleges and universities.
In 1970, Sandler joined Representative Edith Green's Subcommittee on Higher Education of the Education and Labor Committee and sat in on the congressional hearings where women's rights were discussed. It was in the congressional hearings that Green and Sandler first proposed Title IX. An early draft was authored by Representative Patsy Mink, with the assistance of Representative Green. In the hearing there was very little mention of athletics. Their focus was more specifically on the hiring and employment practices of federally financed institutions. The proposed Title IX created lots of buzz and gained a lot of support.
Introduction and enactment
The first person to introduce Title IX in Congress was its author and chief Senate sponsor, Senator Birch Bayh of Indiana.
At the time, Bayh was working on numerous constitutional issues related to women's rights, including the Equal Rights Amendment, to build "a powerful constitutional base from which to move forward in abolishing discriminatory differential treatment based on sex". As they were having some difficulty getting the ERA out of committee, the Higher Education Act of 1965 was on the floor for reauthorization, and on February 28, 1972, Senator Bayh introduced the ERA's equal education provision as an amendment.
Prior to Title IX's enactment women were not given the opportunities that men were. Men were the ones given academic opportunities such as scholarships and funding while women were not viewed as equal. As a result, that is why Title IX was created. Pre- Title IX in 1971 only 1% of the athletic budgets went to female sports on the college level. On the high school level male athletes outnumbered female athletes 12.5 to 1. After Title IX, there was a 600% increase in the number of women playing college sports. It was all about balance, fairness, and equality. Everyone was to be treated the same no matter what.
In his remarks on the Senate floor, Bayh said, "We are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again. The desire of many schools not to waste a 'man's place' on a woman stems from such stereotyped notions. But the facts absolutely contradict these myths about the 'weaker sex' and it is time to change our operating assumptions."
"While the impact of this amendment would be far-reaching", Bayh concluded, "it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work".
Title IX became law on June 23, 1972. When President Nixon signed the bill, he spoke mostly about desegregation busing, but did not mention the expansion of educational access for women he had enacted.
The wording of Title IX is very brief, requiring specific language and clarifications to be articulated in its implementing regulations. President Nixon directed the Department of Health, Education and Welfare (HEW) to carry this out.
Title IX would affect men's athletics and prompted some concern to look for ways to limit the influence of Title IX. Senator Bayh spent the next three years keeping watch over HEW to get regulations formulated that carried out its legislative intent of eliminating discrimination in higher education on the basis of sex. When they were issued in summer 1975 they were contested, and hearings were held by the House Subcommittee on Equal Opportunities on the discrepancies between the regulations and the law. In 1974, Senator John Tower introduced the Tower Amendment, which would have exempted revenue-producing sports from Title IX compliance. Later that year, the Tower Amendment was rejected and the Javits Amendment, proposed by Senator Jacob Javits, stating that the HEW must include "reasonable provisions considering the nature of particular sports" was adopted in its place.
In June 1975, HEW published the final regulations detailing how Title IX would be enforced. The regulations were codified in the Federal Register in the Code of Federal Regulations Volume 34, Part 106 (34 C.F.R. 10634 C.F.R. 106). It was not until this step was completed that many people truly understood the ramifications of Title IX as it would apply to college athletics. Universities receiving Federal financial assistance were given three years to comply with the Title IX regulations. The NCAA claimed that the implementation of Title IX was illegal. A revised Tower Amendment was proposed and many debates occurred but Title IX stood.
In 1979, HEW, under Jimmy Carter's administration, issued further clarifications in its Intercollegiate Athletics Policy Interpretation.
In 1980, HEW was split into two separate agencies in accordance with the Department of Education Organization Act—the Department of Health and Human Services (HHS) and the Department of Education (ED). Responsibility for Title IX enforcement in educational institutions was delegated to ED's Office for Civil Rights (OCR).
The regulations and Policy Interpretation clarified of a number of key issues. Separate teams and equal opportunity and can be found in 34 C.F.R. 106.41, comparable facilities in 34 C.F.R. 106.33, and financial assistance in Section 34 C.F.R. 106.37. These subsections explain that evaluating the equality of these sections "strictly based on expenditures is an unfair method for evaluating equity." The OCR came up with a way "to investigate" the equality of schools and institutions called, the Investigator's Manual on July 28, 1980. The OCR went even further years later and issued three letters of clarification in 1996, 1998 and 2003. The first letter (1996) was written to clarify the proportionality test, the second (1998) to clarify the meaning of "substantially equal," and the third (2003) was to reaffirm the first clarification letter after a number of commission discussions and hearings.
Further legislation and regulations
The Civil Rights Restoration Act of 1988 was passed in response to the U.S. Supreme Court's 1984 ruling Grove City College v. Bell in which the Court held that Title IX applied only to those programs receiving direct federal aid. The case reached the Supreme Court when Grove City College disagreed with the Department of Education's assertion that it was required to comply with Title IX. Grove City College was not a federally funded institution; however, they did accept students who were receiving Basic Educational Opportunity Grants through a Department of Education program. The Department of Education's stance was that, because some of its students were receiving federal grants, the school was receiving federal assistance and Title IX applied to it. The Court decided that since Grove City College was only receiving federal funding through the grant program, only that program had to be in compliance. The ruling was a major victory for those opposed to Title IX, as it made many institutions' sports programs outside of the rule of Title IX and, thus, reduced the scope of Title IX. The ruling, however, was short-lived. The Civil Rights Restoration Act was passed in 1988 which extended Title IX coverage to all programs of any educational institution that receives any federal assistance, both direct and indirect.
In 1994, the Equity in Athletics Disclosure Act, sponsored by congresswoman Cardiss Collins, required federally assisted higher education institutions to disclose information on roster sizes for men's and women's teams, as well as budgets for recruiting, scholarships, coaches' salaries, and other expenses, annually.
In October 2002, less than a month after the death of Rep. Patsy Mink, Congress passed a resolution to rename Title IX the "Patsy Takemoto Mink Equal Opportunity in Education Act," which President George W. Bush signed into law.
On November 24, 2006, the Title IX regulations were amended to provide greater flexibility in the operation of single-sex classes or extracurricular activities at the primary or secondary school level.
Applicability and compliance
The legislation, as a mere interpretation by a governing political administration, has the potential to cover all educational activities, and complaints alleging sex discrimination in fields such as: science, math education, health care, and dormitory facilities. It also applies to non-sport activities such as school band and clubs; however, social fraternities and sororities, sex-specific youth clubs such as Girl Scouts and Boy Scouts, and Girls State and Boys State are specifically exempt from its requirements.
The regulations implementing Title IX require all institutions receiving federal financial assistance to perform self-evaluations of whether they offer equal opportunities based on sex. In order to provide written assurances to the Department of Education, the institution has to be in compliance for the period that the federally funded equipment or facilities remain in use. With respect to athletic programs, the Department of Education evaluates the following factors in determining whether equal treatment exists:
Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary [of Education for Civil Rights] may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
- Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
- The provision of equipment and supplies;
- Scheduling of games and practice time;
- Travel and per diem allowance;
- Opportunity to receive coaching and academic tutoring on mathematics only;
- Assignment and compensation of coaches and tutors;
- Provision of locker rooms, practice and competitive facilities;
- Provision of medical and training facilities and services;
- Provision of housing and dining facilities and services;
Although, the most well-known application of Title IX regarding athletics is that there are several protections the law specifically delineates. 34 C.F.R. 106.40 protects pregnant and parenting students from discrimination based on pregnant status, marital status, or parenthood. Their condition must be treated as any other medical condition. Students may not be excluded from any activity based on their condition of pregnancy, parenthood, or marital status. If they attend a separate facility, they must elect to do so voluntarily, and the facility must provide comparable programs.
HEW's 1979 Policy Interpretation articulated three ways compliance with Title IX can be achieved. This became known as the "three-part test" for compliance. A recipient of federal financial assistance can demonstrate compliance with Title IX by meeting any one of the three prongs, according to a non-legal binding Dear Colleague letter issued in 2010 by the Office for Civil Rights.
- "All such assistance should be available on a substantially proportional basis to the number of male and female participants in the institution's athletic program."
- "Male and female athletes should receive equivalent treatment, benefits, and opportunities."
- "The athletic interests and abilities of male and female students must be equally effectively accommodated."
- "Institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities." Compliance can be assessed in any one of three ways:
- Providing athletic participation opportunities that are substantially proportionate to the student enrollment. This prong of the test is satisfied when participation opportunities for men and women are "substantially proportionate" to their respective undergraduate enrollment.
- Demonstrating a continual expansion of athletic opportunities for the underrepresented sex. This prong of the test is satisfied when an institution has a history and continuing practice of program expansion that is responsive to the developing interests and abilities of the underrepresented sex (typically female).
- Accommodating the interest and ability of underrepresented sex. This prong of the test is satisfied when an institution is meeting the interests and abilities of its female students even where there are disproportionately fewer females than males participating in sports.
Litigation after Grove City case
Since Title IX was passed into law, there have been many court cases claiming non-compliance. One of the most notable cases is Franklin v. Gwinnett County Public Schools, was brought to the U.S. Supreme Court in 1992. The decision in this case required that punitive damages should be awarded to plaintiffs when Title IX is intentionally avoided. In 1993 the court of appeals ruled that financial difficulties is not an excuse for non-compliance in Favia v. Indiana University of Pennsylvania.
In one specific instance, Title IX was instrumental in a court case involving Louisiana State University (LSU). In 1996, a federal court referenced Title IX in ruling that LSU violated the civil rights of female athletes by refusing to fund a trip to a women's volleyball tournament in Hawaii, when earlier in the year, travel for a men's basketball tournament was funded. Since this ruling, LSU has made changes in its athletic programs to achieve compliance. LSU is one of only three NCAA programs that are 100% self-funded and that do not accept financial contributions from the university or government.
In an "unusual" case, Title IX was invoked to justify a school's decision to upgrade its football program from Division I FCS (formerly I‑AA) to Division I FBS (formerly I‑A). The Western Kentucky University Board of Regents approved this move in November 2006, to take effect in 2009. At the time of the vote, WKU was purportedly out of Title IX compliance because it had a disproportionately large number of female scholarship athletes. By upgrading football, it increased the percentage of male athletes on scholarship. However, the following year, it eliminated its men's soccer team.
The Associated Press reported in May 2011 that the Department of Education was investigating the University of Delaware (UD) for potential sex discrimination against men, following a complaint by members of the school's men's cross country and track teams. UD had announced in January 2011 that it would be eliminating both teams at the end of the current school year.
In May 2014, for the first time the Department of Education released a list of 55 colleges and universities under investigation for having mishandled sexual assault. According to The New York Times, this was "an unusual step meant to increase pressure on the institutions to crack down on the problem [of sexual assault] on their campuses." Three of notoriety include the Ivy League schools Harvard University, Princeton University, and Dartmouth College. As of January 2015, with the launch of an investigation at Barnard College on December 29, 2014, the list includes 94 colleges and universities.
Applicability to transgender students
In 2014 and 2016, non-legal binding guidelines were issued by the U.S. Department of Education stating that transgender students are protected from sex-based discrimination under Title IX. It instructed public schools to treat transgender students consistent with their gender identity in academic life. A student who identifies as a transgender boy, for instance, is allowed entry to a boys-only class, and a student who identifies as a transgender girl is allowed entry to a girls-only class. This also applies to academic records if that student is over the age of eighteen at a university. The memo states in part that "[a]ll students, including transgender students, or students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender, or gender non-conforming, consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes."
Though views differ as respects the impact of Title IX, discussion typically focuses on whether or not Title IX has resulted in increased athletic opportunities for females, and whether and to what extent Title IX has resulted in decreased athletic opportunities for males. In addition, the legislation had impacts on aspects other than athletes. The increased exposure of female sports led to increased dominance by males of the governance of women's athletics. For example, the male dominated NCAA, which had been content to let the women-dominated AIAW run women's championships, decided to offer women's championships, which led to the eventual demise of the AIAW.
Advocates of Title IX's current interpretation cite increases in female athletic participation, and attribute those increases to Title IX. One study, completed in 2006, pointed to a large increase in the number of women participating in athletics at both the high school and college level. The number of women in high school sports had increased by a factor of nine, while the number of women in college sports had increased by more than 450%. A 2008 study of intercollegiate athletics showed that women's collegiate sports has grown to 9,101 teams, or 8.65 per school. The five most frequently offered college sports for women are, in order: (1) Basketball, 98.8% of schools have a team, (2) Volleyball, 95.7%, (3) Soccer, 92.0%, (4) Cross Country, 90.8%, and (5) Softball, 89.2%.
At the same time, many contend that the current interpretation of Title IX by the OCR has resulted in the dismantling of men's programs, despite strong participation in those sports. For example, though interest in the sport of wrestling has consistently increased at the high school level since 1990, scores of colleges have dropped their wrestling programs during that same period. The OCR's three-prong test for compliance with Title IX often is cited as the reason for these cuts. Wrestling historically was the most frequently dropped sport, but other men's sports later overtook the lead, such that according to the NCAA, the most-dropped men's sports between 1987 and 2002 were as follows: Cross country (183), indoor track (180), golf (178), tennis (171), rowing (132), outdoor track (126), swimming (125) and wrestling (121).
A non-legal binding guideline announced by Vice President Joe Biden on 4 April 2011 on sexual harassment or violence required that institutions conduct investigations and discipline on the preponderance of the evidence standard, rather than that of beyond reasonable doubt. The use of such a standard by the University of North Dakota has been criticized by the Foundation for Individual Rights in Education in the case of Caleb Warner, who was suspended for three years in January 2010 on the basis of a report by a complainant who was subsequently charged with filing a false report by state police, a decision which the University has refused to reconsider.
Impact on sexual violence
Title IX applies to all educational programs and all aspects of a school's educational system. Civil rights activists and organizations such as the American Civil Liberties Union (ACLU) maintain that "when students suffer sexual assault and harassment, they are deprived of equal and free access to an education." Further, according to an April 2011 letter issued by the Department of Education's Office for Civil Rights, "The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime."
The letter, known colloquially as the "Dear Colleague" letter, states that it is the responsibility of institutions of higher education "to take immediate and effective steps to end sexual harassment and sexual violence." The letter illustrates multiple examples of Title IX requirements as they relate to sexual violence, and makes clear that, should an institution fail to fulfill its responsibilities under Title IX, the Department of Education can impose a fine and potentially deny further institutional access to federal funds.
On March 15, 2011, Yale undergraduate student and alleged sexual violence survivor Alexandra Brodsky filed a Title IX complaint along with fifteen fellow students alleging Yale "has a sexually hostile environment and has failed to adequately respond to sexual harassment concerns."
On October 2012, an Amherst College student, Angie Epifano, wrote an explicit, personal account of her alleged sexual assault and the ensuing, "appalling treatment" she received when coming forward to seek support from the College's administration. In the narrative, Epifano alleged that she was raped by a fellow Amherst student and described how her life was affected by the experience; she stated that the perpetrator harassed her at the only dining hall, that her academics were negatively affected, and that, when she sought support, the administration coerced her into taking the blame for her experience, and ultimately institutionalized her and pressured her to drop out.
- "The fact that such a prestigious institution could have such a noxious interior fills me with intense remorse mixed with sour distaste. I am sickened by the Administration's attempts to cover up survivors' stories, cook their books to discount rapes, pretend that withdrawals never occur, quell attempts at change, and sweep sexual assaults under a rug. When politicians cover up affairs or scandals the masses often rise up in angry protestations and call for a more transparent government. What is the difference between a government and the Amherst College campus? Why can't we know what is really happening on campus? Why should we be quiet about sexual assault?"
When the Amherst case reached national attention, Annie E. Clark and Andrea Pino, two women who were allegedly sexually assaulted at the University of North Carolina at Chapel Hill connected with Amherst student, Dana Bolger, and Brodsky to address the parallel concerns of hostility at their institution, filing Title IX and Clery Act complaints against the university on January 2013, both leading to investigations by the U.S. Department of Education.
Following the national prominence of the UNC Chapel Hill case, organizers Pino and Clark went on to coordinate with students at other schools; in 2013, complaints citing violations of Title IX were filed by Occidental College (on April 18), Swarthmore College and the University of Southern California (on May 22). These complaints, the resulting campaigns against sexual violence on college campuses, and the organizing of Bolger, Brodsky, Clark, Pino and other activists led to the formation of an informal national network of activists. Bolger and Brodsky also started Know Your IX, an organization of student activists focused on legal education and federal and state policy change.
In addition to its use within formal complaints submitted to the Department of Education, Title IX has been utilized in civil litigation. In 2006, a federal court found that there was sufficient evidence that the University of Colorado acted with "deliberate indifference" toward students Lisa Simpson and Anne Gilmore, who were sexually assaulted by student football players. The university settled the case, promising to change its policies and pay $2.5 million in damages. In 2008, Arizona State University was the subject of a lawsuit that alleged violations of rights guaranteed by Title IX: the university expelled a football player for multiple instances of severe sexual harassment, but readmitted him; he went on to rape a fellow student in her dorm room. Despite its claim that it bore no responsibility, the school settled the lawsuit, agreeing to revise and improve its official response to sexual misconduct and to pay the plaintiff $850,000 in damages and fees.
Impact on male athletics
Some believe that the increase in athletic opportunity for girls in high school has come at the expense of boys' athletics. For example, the College Sports Council has stated, "Nationwide, there are currently 1.3 million more boys participating in high school sports than girls. Using a gender quota to enforce Title IX in high school sports would put those young athletes at risk of losing their opportunity to play." High school participation rates from the National Federation of High School associations report that in 2010–11, there were 4,494,406 boys and 3,173,549 girls participating in high school athletics.
There have been different interpretations regarding Title IX's application to high school athletics. The American Sports Council sued the Department of Education in 2011 seeking a declaratory judgment that its policy interpreting Title IX's requirement for equity in participation opportunities is limited to colleges and universities. The American Sports Council argued that "The three-part test and its encouragement of quotas, has no relevance to high schools or high-school sports, and no federal regulation or interpretation has ever said that high schools must abide by the three-part test". On the other hand, the Department of Education insists that Title IX is a "valuable tool" for ensuring a level playing field for all students" and "plays a critical role in ensuring a fundamental level of fairness in America's schools and universities".
Between 1981 and 1999 university athletic departments cut 171 men's wrestling teams, 84 men's tennis teams, 56 men's gymnastics teams, 27 men's track teams, and 25 men's swimming teams. While some teams—both men's and women's—have been eliminated in the Title IX era, both sexes have seen a net increase in the number of athletic periods over a similar time period as the above quote, and by studies including more recent data, though when total enrollment which had likewise increased is controlled for, only women had an increase in participation.
Because teams vary widely in size, it is more appropriate to compare the number of total participation opportunities. Additionally, the total number of college participation opportunities has increased for both sexes in the Title IX era, though solely for women when increased enrollment is accounted for, as men's participation remained static relative to university enrollment, and men's opportunities outnumber women's by a wide margin.
The Women's Sports Foundation reported in a 2007 study of athletic opportunities at NCAA institutions that over 150,000 female athletic opportunities would need to be added in order to reach participation levels proportional to the female undergraduate population. The same study found that men's athletics also receives the lion's share of athletic department budgets for operating expenses, recruiting, scholarships, and coaches salaries.
Although some believe that male sports have decreased because of the many opportunities given to females, in actuality research shows that male sports continue to rise and dominate over female sports. Males are still given much more of an opportunity and although females have shown more growth overall in their increase, the rate is still much higher overall for males than females, given the fact that males were always given an opportunity and females were not.
Impact on female athletics
"In 1971, fewer than 295,000 girls participated in high school varsity athletics, accounting for just 7 percent of all varsity athletes; in 2001, that number leaped to 2.8 million, or 41.5 percent of all varsity athletes, according to the National Coalition for Women and Girls in Education. In 1966, 16,000 females competed in intercollegiate athletics. By 2001, that number jumped to more than 150,000, accounting for 43 percent of all college athletes. In addition, a 2008 study of intercollegiate athletics showed that women's collegiate sports had grown to 9,101 teams, or 8.65 per school. The five most frequently offered college sports for women are, in order: (1) basketball, 98.8% of schools have a team, (2) volleyball, 95.7%, (3) soccer, 92.0%, (4) cross country, 90.8%, and (5) softball, 89.2%. Since 1972, women have also competed in the traditional male sports of wrestling, weightlifting, rugby, and boxing. Parents have begun to watch their daughters on the playing fields, courts, and on television. A recent article in the New York Times found that there are lasting benefits for women from Title IX: participation in sports increased education as well as employment opportunities for girls. Furthermore, the athletic participation by girls and women spurred by Title IX was associated with lower obesity rates. No other public health program can claim similar success."
In a 1973 article titled “Women in Sport—Programmed to be Losers,” Sports Illustrated argued that women would benefit from experiencing a release of aggression and the feeling of winning. Similar work from The New York Times shifted the way women’s sports were covered in the United States.
A study found that after Title IX, the number of female college students playing sports was six times higher than prior to Title IX. Prior to Title IX, women's athletic teams received less than 10% of their academic institutions' budget and athletic scholarships for women did not exist. According to a report by the National Coalition for Women and Girls in Education, in 2009–2010, women received 48% of all athletic scholarship funds at Division 1 schools.
Title IX has been a source of controversy in part due to claims that the OCR's current interpretation of Title IX, and specifically its three-prong test of compliance, is no longer faithful to the anti-discrimination language in Title IX's text, and instead discriminates against men and has contributed to the reduction of programs for male athletes.
Critics of the three-prong test contend that it operates as a "quota" in that it places undue emphasis on the first prong (known as the "proportionality" prong), which fails to take into account any differences in the genders' respective levels of interest in participating in athletics (in spite of the third prong, which focuses on any differences in the genders' respective levels of interest in participation). Instead it requires that the genders' athletic participation be substantially proportionate to their enrollment, without regard to interest. Prong two is viewed as only a temporary fix for universities, as universities may only point to past expansion of opportunities for female students for a limited time before compliance with another prong is necessary. Critics say that prong three likewise fails to consider male athletic interest in spite of its gender-neutral language, as it requires that the university fully and effectively accommodate the athletic interests of the "underrepresented sex", despite the fact that ED regulations expressly require that the OCR consider whether the institution "effectively accommodate[s] the interests and abilities of members of both sexes". As such, with a focus on increasing female athletic opportunities without any counterbalance to take male athletic interest into consideration, critics maintain that the OCR's three-prong test actually operates to discriminate against men.
Defenders of the three-prong test counter that the genders' differing athletic interest levels is merely a product of past discrimination, and that Title IX should be interpreted to maximize female participation in athletics regardless of any existing disparity in interest. Thus while defenders argue that the three-prong test embodies the maxim that "opportunity drives interest", critics argue that the three-prong test goes beyond Title IX original purpose of preventing discrimination, and instead amounts to an exercise in which athletic opportunities are taken away from male students and given to female students, despite the comparatively lower interest levels of those female students. Author and self-described women's rights advocate John Irving opined in a New York Times column that on this topic, women's advocates were being "purely vindictive" in insisting that the current OCR interpretation of Title IX be maintained.
On March 17, 2005, OCR announced a clarification of prong three of the three-part test of Title IX compliance. The guidance concerned the use of web-based surveys to determine the level of interest in varsity athletics among the underrepresented sex. Opponents of the clarification – including the NCAA Executive Committee, which issued a resolution soon afterward asking Association members not to use the survey – claimed the survey was flawed in part because of the way it counted non-responses. On April 20, 2010, the U.S. Department of Education's Office for Civil Rights abandoned the 2005 clarification that allowed institutions to use only Internet or e‑mail surveys to meet the interests and abilities (third prong) option of the three-part test for Title IX compliance.
On April 20, 2010, the United States Commission on Civil Rights weighed in on the OCR's three-prong test and procedures for implementing it. On that date, the Commission on Civil Rights released several recommendations on Title IX policy to address what it termed "unnecessary reduction of men's athletic opportunities". The Commission advocated use of surveys to measure interest, and specifically recommended that the Department of Education's regulations on interest and abilities be revised "to explicitly take into account the interest of both sexes rather than just the interest of the underrepresented sex", almost always females.
In 2011 the Dear Colleague Letter, which mentioned Title IX, stated that sexual violence also falls into the category of sexual discrimination, which in fact would not be tolerated. In the letter it stated that it was the duty of Colleges and Universities to enforce consequences if there were any students who had been victims to sexual violence, and that it was also the responsibility of these institutions to prevent any sexual violence to begin with. Schools were being threatened that if they were not in compliance with what the Dear Colleague Letter stated that they would lose all of their federal funding. Many schools were being investigated by the O.C.R, and several came under scrutiny for non-compliance. There have been several lawsuits that state that the O.C.R unlawfully made the decision to have contents of the Dear Colleague Letter enforced, and some cited that there was unfair treatment.
There is still a lot of debate about what bathroom a transgender person should have access to, and if schools continue to exclude transgender people from certain bathrooms that would mean they could very well be in violation of Title IX. If a school administrator denies a person who is transgender the right to use a bathroom of the sex they identify with, they could face serious consequences. There is a lot of fear about sexual violence taking place in these bathrooms as well as attacks and or harassment, and as a result, the Obama administration, in interpreting Title IX to include "gender identity and expression" under the broader category of "sex," wants to make sure that all sexes and genders feel safe when using these restrooms. The Obama administration says that schools have the option of either allowing students to choose the bathroom based on the gender they identify with, or all together they would have to put an end to segregating school bathrooms.
There were several events praising the 40th anniversary of Title IX in June 2012. For example, the White House Council on Women and Girls hosted a panel to discuss the life-altering nature of sports. Panelists included Billie Jean King, All‑American NCAA point guard Shoni Schimmel of the University of Louisville, and Aimee Mullins, the first double-amputee sprinter to compete in NCAA track and field for Georgetown University.
The Women's Sports Foundation honored over 40 female athletes.
On June 21, 2012, espnW projected a digital mosaic featuring the largest-ever collection of women and girls' sports images (all of which were submitted by the athletes themselves) onto the First Amendment tablet of the Newseum in Washington, D.C. The mosaic also included photos of espnW's Top 40 Athletes of the Past 40 Years.
ESPN The Magazine produced its first "Women in Sports" issue in June 2012.
Also in June 2012, ESPN Classic first showed the documentary Sporting Chance: The Lasting Legacy of Title IX, narrated by Holly Hunter. It also showed the documentary On the Basis of Sex: The Battle for Title IX in Sports, and other programming related to women's sports.
In 2013 ESPN Films broadcast Nine for IX, a series of documentaries about women in sports. Good Morning America anchor Robin Roberts and Tribeca Productions cofounder Jane Rosenthal are executive producers of the series.
Commission on Opportunity in Athletics
On June 27, 2002, Secretary of Education Rod Paige announced the creation of the Commission on Opportunity in Athletics (COA), a blue-ribbon panel to examine ways to strengthen enforcement and expand opportunities to ensure fairness for all college athletes. Co-chairs for the COA were Cynthia Cooper and Ted Leland. The purpose of the Commission was to collect information, analyze issues, and obtain broad public input directed at improving the application of federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX.
The panel held four town hall meetings (in Atlanta, Chicago, Colorado Springs, and San Diego) to allow the general public to comment on the past, present, and future of Title IX. On February 26, 2003, the COA issued its final report. The COA provided twenty-three recommendations to the Secretary of Education. Although many of the recommendations were unanimous, some of the more controversial recommendations passed by an 8–5 vote. These dealt with considering non-scholarship athletes in prong one of the three-part test for compliance and allowing interest surveys to determine compliance with prong three. On the same day, Secretary of Education Rod Paige announced he would only consider unanimous recommendations, whose effect on the Department of Education was to:
- Reaffirm its strong commitment to equal opportunity for girls and boys, women and men
- Aggressively enforce Title IX in a uniform way across the nation
- Give equal weight to all three prongs of the test governing Title IX compliance
- Encourage schools to understand that the Department of Education disapproves of cutting teams in order to comply with Title IX
Similar US state laws
Because Title IX only addresses public and private schools that receive federal funding, several states have enacted similar laws to prohibit discrimination based on sex regardless of whether the school receives federal funding. As of 2008, about a third of the states have done so, including Alaska, California, Florida, Georgia, Hawaii, Illinois, Iowa, Maine, Minnesota, Nebraska, New Jersey, New Mexico, New York, Rhode Island, South Dakota, Washington, and Wisconsin.
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