June 23, 2012 marks the 40th anniversary of one of our greatest civil rights laws, Title IX of the Education Amendments of 1972, which bans discrimination based on gender in federally funded educational programs. To many of us who work on Title IX issues, every major anniversary of its passage feels a little like “Groundhog Day”: commentators wax fondly about the changes Title IX has wrought, while advocates lament the distance yet to go. But few laws prompt such anniversary celebrations, and it is worth exploring why Title IX holds such a special place in U.S. popular culture, a veritable “super statute”—the kind of law that shifts cultural norms and has a transformative impact on society.
Title IX covers all kinds of sex discrimination in all aspects of education programs, including sexual harassment, treatment of pregnant and parenting students, access to opportunities in nontraditional fields like math and science, and sex-separate programming based on gender stereotypes. However, without even mentioning the word ‘athletics,’ it will be forever known as the legislation that sparked a revolution in girls’ and women’s sports participation.
By proceeding from the default baseline of sex-separation, Title IX was able to forge an unusually creative measure of equal opportunity, one more concerned about substantive equality than mere formal equality. Title IX’s legal standards focus on the numbers of actual opportunities available to girls and women, and promise equal treatment for the girls and women who take advantage of those opportunities. As a result, we have gone from 1 in 27 high school girls playing varsity school sports in 1971 to about 1 in 2.3—nearly half—girls today. This is a stunning change, with broad ramifications for gender relations outside of 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. And despite repeated efforts to vilify Title IX as responsible for cuts to boys’ and men’s opportunities, this growth has not come at the expense of male sports. Since Title IX was enacted, male sports participation has increased too, both at the high school and collegiate levels.
The law has been successful in expanding women’s sports participation for many reasons, a major one being its refusal to take existing levels of female interest in sports as fixed or “natural,” and then use those as a reason for limiting women’s sports opportunities. In a landmark Title IX case, Cohen v. Brown University, the court observed: “Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience” and that the university’s evidence of women’s lower athletic interest “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.” The result is a substantive approach to equality rarely seen in sex discrimination case law, with a focus on expanding women’s actual participation in sports.
Against long odds
Perhaps the biggest cause for celebration on this 40th anniversary is that we have managed to hold onto Title IX’s gains against long odds. Ever since the law’s passage, detractors of women’s sport have sought to derail the law’s application to athletics, so as to continue to structure sports programs around an implicit assumption that men, and not women, are the legitimate beneficiaries of sport. During the George W. Bush Administration, Title IX’s legal standards were again on the chopping block. President Bush and his Secretary of Education set up a “blue ribbon” commission to reevaluate Title IX and stacked it with officials from Division I-A powerhouses and vocal critics of the law. 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, and the Republican-controlled Congress appeared hospitable to trumped-up charges of “reverse discrimination” and “quotas.” Despite this, Title IX advocates succeeded in beating back the assault and the law remained substantially intact.
The Bush Administration’s Office for Civil Rights did manage to release a 2005 Guidance that substantially weakened the law by allowing questionable survey practices to demonstrate that women’s athletic interests were already being met (even going so far as to count women’s non-responses to emailed surveys as expressions of non-interest). However, even this setback was short-lived. School and university administrators sensitive to gender equity concerns treated the 2005 Guidance with skepticism. Even the NCAA urged its members not to rely on it. The Obama Administration put the final nail in the coffin when it rescinded the 2005 OCR Guidance in 2010, and expressly rejected such a cynical and self-serving approach to interest surveys. (In recent years, the Obama Administration’s Office for Civil Rights has also rebuffed further attacks on Title IX.)
Successes and future challenges
The big news of the decade is that the anti-Title IX forces were not able to accomplish more during this period. That is mostly thanks to the very success of the law itself in changing cultural norms to build strong public support for girls and women in sport. The strong, hard-hitting, competitive female athlete has gone from being a “tomboy” (when that term was understood to be derisive) to an iconic ideal. Athletic success is now a path to popularity and leadership for girls as well as boys. This is important stuff – and has implications well beyond sports.
To be sure, the law has its limitations, and the gains of the past 40 years have come alongside numerous disappointments. Like other single-axis laws that reach a discrete type of bias in isolation from others, the law has benefited the most privileged members of the beneficiary group the most. The most concentrated gains have been at the wealthier, suburban schools, where matching boys’ opportunities has required the addition of significantly more opportunities for girls, who are disproportionately wealthier and white. Girls and women of color have gained from Title IX, but not as much. And Title IX’s substantive approach to equality has not extended to the law’s approach to remedies; like other nondiscrimination laws, the violation can be fixed by leveling down or leveling up. Some schools have cut male sports opportunities instead of adding female sports, which drains public support and serves as an effective kind of retaliation for bringing forth Title IX complaints. Finally, Title IX’s substantive approach is not immune from strategic “gaming,” and roster manipulation as a compliance strategy appears to be on the rise. These and other concerns complicate Title IX’s success story, and reveal the limitations of using a law like Title IX as a vehicle for social changes. Nevertheless, there is a success story to be told in Title IX, and the law’s 40th birthday is one worth observing.
Deborah Brake is Professor of Law and Distinguished Faculty Scholar at the University of Pittsburgh School of Law.
For a comprehensive look at Title IX’s successes, limitations and disappointments, see Deborah Brake’s book, Getting in the Game: Title IX and the Women’s Sports Revolution (NYU Press 2010), which was just released in paperback.