One of the main problems associated with any discussion of civil rights is the fact that civil rights have developed at different rates and at different times for different groups seeking a more equal type on inclusion and participation in Americas public and private lives. Federal laws and constitutional interpretations benefiting African Americans, for example, have not always benefited other groups being denied the same or similar rights. This is particularly true in the case of Title IX of The Education Amendments of 1972 (hereinafter Title IX) which was intended to ensure that women benefited from the same basic protections previously extended to African Americans pursuant to the Civil Rights Act of 1964. The fundamental policy objective was to clarify that gender was an illegal classification in certain respects as offensive to American principles of equality as racial classifications. Ironically, although Title IX was originially intended to broadly prohibit sex discrimination in employment and firing contexts with respect to institutions receiving federal funding, it has tended since its passage to have been applied and debated mostly within the context of high school and university sports settings. In this way, its applicability has been much narrower than its original advocates intended. Even in this comparatively narrow setting, high school and university sports, a number of problems and debates have arise. There remain disparities based in sex and hundreds of lawsuits have been initiated in order to determine how the act ought to be applied in a variety of circumstances. A review of the academic literature and relevant legal cases suggests that Title IX has failed to accomplish its original public policy objectives and that its application in certain cases may more conflict than harmony. In support of this thesis, that Title IX has been a legislative failure in several respects, this paper will discuss the public policies underlying its Congressional enactment, how it has been narrowly applied mostly in the context of sports, and how current statistics and legal disputes demonstrate that it is failing to fulfill its underlying objectives. Title IX, in short, has been a failure in several respects.
A review of the debates surrounding Title IX at its inception clearly establishes that there were many conflicting opinions and the resulting legislation was the product of certain compromises. These debates, more than anything else, concentrated on the scope of the protective legislation to be enacted and compliance mechanisms. What womens rights wanted to become a much more comprehensive employment discrimination statute was eventually reduced to a statue which primarily addressed gender discrimination in educational settings the connection was that most educational settings at the time received some form of federal funding, whether directly or indirectly, and that this gave Congress the authority to prohibit certain types of discrimination.
Generally speaking
Title IX became law on July 1, 1972, as Public Law 92-318. It specifically and clearly recognizes the problems of sex discrimination and forbids such discrimination in any program, organization, or agency that receives federal funds.
A closer examination of the statutory language that emerged from Congress, however, illustrates the more specific scope of the legislative prohibitions. Specifically, the relevant statutory provision for purposes of this provided 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. (Title X 901(a)) The initial clause prohibits sex discrimination by persons in the United States and the final two clauses qualify this by framing the prohibited type of discrimination in terms of educational programs and activities. This qualification is important because it limited from the very beginning the scope and the applicability of the statute in terms of the civil rights that women had been pursuing. Rather than a broadly based employment discrimination statute, which is what many people wanted, what emerged from Congress was a much more limited legislative prohibition of sex discrimination with respect to educational programs and activities. Indeed, with respect to sports, it is well-established that Athletics and athletic programs were not specifically mentioned in Title IX when it first became law in 1972. Congress was generally opposed to placing athletic programs under the realm of Title IX. An additional limitation was the fact that educational institutions not receiving federal funds were not bound by the terms of Title IX. To be sure, these private educational institutions were in the minority. Nevertheless, the statutes extraordinarily narrow scope provided a potential loophole for the continuation of sex discrimination. At the time, an educational organization could forgo federal funds, perhaps raising funds from wealthy alumni and politically like-minded donors, and thereby evade Title IXs intent and legal reach.
It is therefore hardly surprising, given the relatively weak statute that Congress enacted as Title IX, that the legislation has consistently been criticized, evaded, and litigated. These problems are some of the reasons that Congress was forced in subsequent years to consider an Equal Right Amendment in order to remedy the perceived shortcomings of antsex discrimination laws such as Title IX. From the very beginning, the most significant debate has centered on whether Title IX is applicable to a particular organization, program, or activity. The notion that it might apply to certain programs in certain cities, but not similar programs in different cities raised the prospect for unending disputes and costly litigation. This threshold determination, whether Title IX even applied in any given situation, was dependent on how the federal funding language would be interpreted. Indeed, as noted by one pair of leading legal scholars, Since the inception of Title IX in 1972, a major point of contention has been whether the legislation applies only to the specific departments which received direct funding (commonly referred to as the programmatic approach) or is extended to any department within an institution that benefited from federal assistance (commonly referred to as the institutional approach).
Two entire new approaches to resolving whether Title IX even applied in the first instance, the programmatic approach and the institutional approach, spawned numerous lawsuits which functioned to delay sex discrimination pending the resolution of technical disputes which continue to this day. Title IX opponents argued that the legislation meant direct financial funding and that only the programs benefiting directly from that funding were subject to Title IX. It was therefore conceivable, pursuant to this type of reasoning, that a program or activity could be exempt from Title IX even if its educational sponsor received billions of dollars in federal funding if that particular program did not directly benefit from that funding. A university football team generating its own revenues through ticket sales and merchandise sales, for instance, could make this argument in order to preserve overt and more subtle types of sex discrimination one line of reasoning in support of this argument is that The NCAA is a private association of public and private colleges and universities which derives its income from three sources (1) dues, (2) assessments on television gross rights fees, and (3) championship games and tournaments.
Proponents of Title IX, on the other hand, argued that virtually any federal funding whatsoever, whether direct or indirect, bound the entire educational institution and all of the programs and activities under its administrative authority. This distinction, private versus public is important because few, if any, school athletics departments receive direct federal financial assistance.
It was not until 1987, some fifteen years after the ostensibly landmark legislation was enacted, that Congress attempted to clarify some of Title IXs practical shortcomings. The judicial system had issued a number of conflicting decisions regarding these two extreme interpretations of Title IXs applicability and Congress was finally pressured into choosing either the comprehensive anti-sex discrimination interpretation of the institution approach or the almost useless anti-sex discrimination interpretation approach of the programmatic approach. Congress chose the latter and In March 1988 the United States Congress acted to clarify this issue when it voted overwhelmingly to override President Ronald Reagans veto of the Civil Rights Restoration Act of 1987 (see Note 4). Enactment of this legislation served, to restore the broad scope of coverage and clarify the application of Title IX of the Education Amendments of 1972 . . . (see note 41). Thus, Congress has returned Title IX applicability to the institutional approach accordingly, athletic departments within institutions benefiting from federal assistance are subject to the Title IX strictures.
More than fifteen years passed before the country and its court were able to determine whether Title IX applied at an institutional level or a smaller program or activity level. It is hardly surprising therefore that Title IX was such an abysmal failure in its first two decades. This failure, in large part can be attributed to the failure of Congress in 1972 to draft a more specific legislative statement in order to prevent evasions and loopholes.
Even today it is argued that Title IX as amended has failed to ameliorate even the most blatant forms of sex discrimination in educational settings. High school and university sports are an excellent example of the failures and the problems that remain. A somewhat simplistic characterization of Title IXs application is that girls and women must be provided with the same opportunities, facilities, and funding as boys and men. If a boys soccer team is provided by a school the Title IX mandates that the school provide the women with a soccer team, a suitably equivalent sporting opportunity, or eliminate the boys soccer team. More nuanced interpretations, which will be explored later on in this paper, suggest that women must be able to try out for and be accepted to traditionally male sports teams if they can satisfy the physical and technical requirements. This has led to further legal distinctions being made in the application of Title IX with respect to contact sports and non-contact sports and litigation continues.
In sum, despite all of these disagreements and technical problems regarding the proper application of Title IX, the statistics do demonstrate that women have been provided with better opportunities and fairer treatment in both high schools and universities. These improvements that have resulted from the evolution of Title IX as an anti-sex discrimination law have not risen to the level of absolute parity and equality between the sexes. In the high school context, for example, it has very recently been noted that high school girls still receive 1.3 million fewer participation opportunities than boys, and the money spent on girls sports remains far less than that spent on boys sports. These remaining disparities cause especially fierce disagreements in the current economic environment because the only viable solution for high schools is cutting existing boys programs and activities because there simply isnt enough money to create equal programs and activities for girls. The negative impact of the poor economic climate has also been noted with respect to the university context specifically, one commentator has noted that One of the biggest issues in this controversy centers around making progress in providing participation opportunities for women and the money that is needed to accomplish this task. In a time of budgetary cutbacks, athletics directors and university presidents who must account for the bottom line are tasked with difficult decisions. Historically, womens sport programs had received little or no funding from their institutions, while mens programs received the lions share of the athletics budget. With the passage of Title IX, much progress has been made on this front, but it still falls short of the intent of the law.
A few preliminary conclusions can be drawn from a review of academic literature. First, because of legal disputes, Title IX was not consistently applied to institutions until 1988. The first sixteen years of the legislations existence were therefore mired in litigation and uncertainty. In such an environment, the legislation was inconsistently applied, sometimes not applied at all, and few real gains were achieved. Second, once Congress legislated an institutional approach some gains were made. These gains, to be sure, fell well short of true equality in both the number of opportunities and the amount of funding. Girls and women remained second-class citizens at high schools and universities. Finally, economic realities matter in the current economic climate, for instance, the sexes are being pitted against each other as hard choices have to be made in order to comply with Title IX. It is likely that further litigation will result and that the realization of Title IXs most fundamental goals will once again be delayed.
A review of the debates surrounding Title IX at its inception clearly establishes that there were many conflicting opinions and the resulting legislation was the product of certain compromises. These debates, more than anything else, concentrated on the scope of the protective legislation to be enacted and compliance mechanisms. What womens rights wanted to become a much more comprehensive employment discrimination statute was eventually reduced to a statue which primarily addressed gender discrimination in educational settings the connection was that most educational settings at the time received some form of federal funding, whether directly or indirectly, and that this gave Congress the authority to prohibit certain types of discrimination.
Generally speaking
Title IX became law on July 1, 1972, as Public Law 92-318. It specifically and clearly recognizes the problems of sex discrimination and forbids such discrimination in any program, organization, or agency that receives federal funds.
A closer examination of the statutory language that emerged from Congress, however, illustrates the more specific scope of the legislative prohibitions. Specifically, the relevant statutory provision for purposes of this provided 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. (Title X 901(a)) The initial clause prohibits sex discrimination by persons in the United States and the final two clauses qualify this by framing the prohibited type of discrimination in terms of educational programs and activities. This qualification is important because it limited from the very beginning the scope and the applicability of the statute in terms of the civil rights that women had been pursuing. Rather than a broadly based employment discrimination statute, which is what many people wanted, what emerged from Congress was a much more limited legislative prohibition of sex discrimination with respect to educational programs and activities. Indeed, with respect to sports, it is well-established that Athletics and athletic programs were not specifically mentioned in Title IX when it first became law in 1972. Congress was generally opposed to placing athletic programs under the realm of Title IX. An additional limitation was the fact that educational institutions not receiving federal funds were not bound by the terms of Title IX. To be sure, these private educational institutions were in the minority. Nevertheless, the statutes extraordinarily narrow scope provided a potential loophole for the continuation of sex discrimination. At the time, an educational organization could forgo federal funds, perhaps raising funds from wealthy alumni and politically like-minded donors, and thereby evade Title IXs intent and legal reach.
It is therefore hardly surprising, given the relatively weak statute that Congress enacted as Title IX, that the legislation has consistently been criticized, evaded, and litigated. These problems are some of the reasons that Congress was forced in subsequent years to consider an Equal Right Amendment in order to remedy the perceived shortcomings of antsex discrimination laws such as Title IX. From the very beginning, the most significant debate has centered on whether Title IX is applicable to a particular organization, program, or activity. The notion that it might apply to certain programs in certain cities, but not similar programs in different cities raised the prospect for unending disputes and costly litigation. This threshold determination, whether Title IX even applied in any given situation, was dependent on how the federal funding language would be interpreted. Indeed, as noted by one pair of leading legal scholars, Since the inception of Title IX in 1972, a major point of contention has been whether the legislation applies only to the specific departments which received direct funding (commonly referred to as the programmatic approach) or is extended to any department within an institution that benefited from federal assistance (commonly referred to as the institutional approach).
Two entire new approaches to resolving whether Title IX even applied in the first instance, the programmatic approach and the institutional approach, spawned numerous lawsuits which functioned to delay sex discrimination pending the resolution of technical disputes which continue to this day. Title IX opponents argued that the legislation meant direct financial funding and that only the programs benefiting directly from that funding were subject to Title IX. It was therefore conceivable, pursuant to this type of reasoning, that a program or activity could be exempt from Title IX even if its educational sponsor received billions of dollars in federal funding if that particular program did not directly benefit from that funding. A university football team generating its own revenues through ticket sales and merchandise sales, for instance, could make this argument in order to preserve overt and more subtle types of sex discrimination one line of reasoning in support of this argument is that The NCAA is a private association of public and private colleges and universities which derives its income from three sources (1) dues, (2) assessments on television gross rights fees, and (3) championship games and tournaments.
Proponents of Title IX, on the other hand, argued that virtually any federal funding whatsoever, whether direct or indirect, bound the entire educational institution and all of the programs and activities under its administrative authority. This distinction, private versus public is important because few, if any, school athletics departments receive direct federal financial assistance.
It was not until 1987, some fifteen years after the ostensibly landmark legislation was enacted, that Congress attempted to clarify some of Title IXs practical shortcomings. The judicial system had issued a number of conflicting decisions regarding these two extreme interpretations of Title IXs applicability and Congress was finally pressured into choosing either the comprehensive anti-sex discrimination interpretation of the institution approach or the almost useless anti-sex discrimination interpretation approach of the programmatic approach. Congress chose the latter and In March 1988 the United States Congress acted to clarify this issue when it voted overwhelmingly to override President Ronald Reagans veto of the Civil Rights Restoration Act of 1987 (see Note 4). Enactment of this legislation served, to restore the broad scope of coverage and clarify the application of Title IX of the Education Amendments of 1972 . . . (see note 41). Thus, Congress has returned Title IX applicability to the institutional approach accordingly, athletic departments within institutions benefiting from federal assistance are subject to the Title IX strictures.
More than fifteen years passed before the country and its court were able to determine whether Title IX applied at an institutional level or a smaller program or activity level. It is hardly surprising therefore that Title IX was such an abysmal failure in its first two decades. This failure, in large part can be attributed to the failure of Congress in 1972 to draft a more specific legislative statement in order to prevent evasions and loopholes.
Even today it is argued that Title IX as amended has failed to ameliorate even the most blatant forms of sex discrimination in educational settings. High school and university sports are an excellent example of the failures and the problems that remain. A somewhat simplistic characterization of Title IXs application is that girls and women must be provided with the same opportunities, facilities, and funding as boys and men. If a boys soccer team is provided by a school the Title IX mandates that the school provide the women with a soccer team, a suitably equivalent sporting opportunity, or eliminate the boys soccer team. More nuanced interpretations, which will be explored later on in this paper, suggest that women must be able to try out for and be accepted to traditionally male sports teams if they can satisfy the physical and technical requirements. This has led to further legal distinctions being made in the application of Title IX with respect to contact sports and non-contact sports and litigation continues.
In sum, despite all of these disagreements and technical problems regarding the proper application of Title IX, the statistics do demonstrate that women have been provided with better opportunities and fairer treatment in both high schools and universities. These improvements that have resulted from the evolution of Title IX as an anti-sex discrimination law have not risen to the level of absolute parity and equality between the sexes. In the high school context, for example, it has very recently been noted that high school girls still receive 1.3 million fewer participation opportunities than boys, and the money spent on girls sports remains far less than that spent on boys sports. These remaining disparities cause especially fierce disagreements in the current economic environment because the only viable solution for high schools is cutting existing boys programs and activities because there simply isnt enough money to create equal programs and activities for girls. The negative impact of the poor economic climate has also been noted with respect to the university context specifically, one commentator has noted that One of the biggest issues in this controversy centers around making progress in providing participation opportunities for women and the money that is needed to accomplish this task. In a time of budgetary cutbacks, athletics directors and university presidents who must account for the bottom line are tasked with difficult decisions. Historically, womens sport programs had received little or no funding from their institutions, while mens programs received the lions share of the athletics budget. With the passage of Title IX, much progress has been made on this front, but it still falls short of the intent of the law.
A few preliminary conclusions can be drawn from a review of academic literature. First, because of legal disputes, Title IX was not consistently applied to institutions until 1988. The first sixteen years of the legislations existence were therefore mired in litigation and uncertainty. In such an environment, the legislation was inconsistently applied, sometimes not applied at all, and few real gains were achieved. Second, once Congress legislated an institutional approach some gains were made. These gains, to be sure, fell well short of true equality in both the number of opportunities and the amount of funding. Girls and women remained second-class citizens at high schools and universities. Finally, economic realities matter in the current economic climate, for instance, the sexes are being pitted against each other as hard choices have to be made in order to comply with Title IX. It is likely that further litigation will result and that the realization of Title IXs most fundamental goals will once again be delayed.
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