Tuesday, June 26, 2012

Title IX Turns 40

Guest blogger Deborah Brake, Professor of Law and Distinguished Faculty Scholar, University of Pittsburgh School of Law

This June marks the 40th anniversary of one of our greatest civil rights laws, Title IX of the Education Amendments of 1972, which banned sex discrimination in federally-funded education programs, including extracurricular activities at schools and colleges. Title IX's big birthday party falls on an Olympic year, so we can expect that this year, sports commentators will make the connection between America's female Olympic champions and the law that opened up athletic opportunities for them. Few laws prompt such anniversary celebrations, and there is good reason for Title IX's special place in popular culture as a "super statute"-the kind of law that shifts cultural norms and has a transformative impact on society.

Title IX is best-known for its impact on sports, but it covers many kinds of sex discrimination in all aspects of education programs, including sexual harassment, the treatment of pregnant and parenting students, access to opportunities in nontraditional fields like math and science, and sex-separate programming based on gender stereotypes.  In fact, when the legislation was enacted in 1972, athletics was the last thing on the minds of the legislators who voted for it.

Much of the congressional testimony centered on opening up academic opportunities to women. At the time, women were commonly expected to structure their lives around marriage and domestic life and so they were often excluded from graduate and professional schools. In 1971, even a public undergraduate institution like the University of Virginia restricted admission to men only.  Buoyed by the women's movement, supporters of Title IX sought to help women get the skills and education they needed to participate as equals in economic and professional life.

But Title IX also sparked a revolution in girls' and women's sports by forging an unusually creative measure of equal opportunity, one more concerned about substantive equality than mere formal equality.  As a result, we have gone from 1 in 27 high school girls playing varsity school sports in 1971, the year before Title IX's passage, to nearly half of all girls today playing high school varsity sports.

The law also ushered in massive growth in women's sports at the college level, from 30,000 female intercollegiate athletes in 1971 to about 165,000 today. There are several reasons why Title IX has been so successful in expanding participation in women's sports, but the main one is the law's refusal to put a ceiling on women's sports opportunities based on what seems like fixed or "natural" interests in sports.  For example, as one court recognized in a landmark Title IX case:

"Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. … Rather than providing a true measure of women's interest in sports, statistical evidence purporting to reflect women's interest instead provides only a measure of the very discrimination that is and has been the basis for women's lack of opportunity to participate in sports."

Perhaps the biggest cause for celebration on this anniversary is that we have managed to hold onto these gains, at times, against long odds. Since the law's passage, detractors of women's sport have sought to derail the law's application to athletics.  Others have tried to vilify Title IX by saying that the law is responsible for cutting opportunities for male athletes. Yet, since Title IX was enacted, male sports participation has increased for the most part, both at the high school and collegiate levels.

The success of Title IX comes from its ability to change cultural norms to build strong public support for girls and women in sports.  But this doesn't mean it hasn't faced attacks. During the George W. Bush Administration, Title IX's legal standards were on the chopping block.  President Bush and his Secretary of Education set up a "Blue Ribbon" commission to reexamine the law and stacked it with some vocal critics of the law and officials from Division I-A powerhouses.  At the time, Dennis Hastert - a former wrestling coach long on a mission to roll back the clock on Title IX - served as Speaker of the U.S. House of Representatives, and the Republican-controlled Congress appeared hospitable to trumped-up charges of "reverse discrimination" and "quotas" linked to a civil rights law.  Despite this bleak outlook, Title IX advocates, including commissioners Julie Foudy and Donna de Varona, managed to beat back the assault and keep the law substantially intact.

Recently, there has been a spate of OCR complaints and court challenges citing unequal participation opportunities and treatment of girls' sports at the elementary and secondary level.  For example, we are still seeing countless complaints of poor coaching for girls and inferior facilities that put girls at risk of sprained ankles from playing on poorly maintained, non-regulation fields, while boys play in brand new state-of-the-art facilities.

In an Indiana case decided earlier this year, the court found that the common practice of always scheduling boys' high school basketball games in the prime-time slots of Friday and Saturday nights, while relegating the girls' games to school nights, reinforced the second class status of the female players.  Such discrimination in scheduling remains common, and creates academic conflicts for girls who have to balance homework with games while suppressing their spectatorship.  These cases show the continuing relevance of Title IX and the need for stepped-up enforcement efforts, even as we celebrate and remember the law's gains.

Much work remains to be done to reach full equality. But even so, Title IX has shifted cultural norms and changed societal expectations about gender.  The strong, powerful, hard-hitting, competitive female athlete has gone from being a "tomboy" to an iconic ideal.  Athletic success is now a path to popularity and leadership for girls as well as boys.  This is important stuff that can later affect a woman's later job success and her health in adulthood.  Most importantly, through sports, women learn important lessons about competition, teamwork and leadership- lessons that are as important for girls as they are for boys.

For a comprehensive look at Title IX's successes, limitations and disappointments, see Deborah Brake's new book, Getting in the Game: Title IX and the Women's Sports Revolution (NYU Press 2010), which was just released in paperback (and is available at amazon.com).

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