Title IX

What is Title IX?

“Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. This law protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance.”  (“What Is Title IX?Title IX Office, Harvard University, 2021).

Why was Title IX needed?

The Department of Justice explains why Title IX was needed:

“Before Title IX, women were often excluded from or had only limited access to educational programs. Elite colleges and universities set quotas for the admission of women or prohibited them from attending altogether; those that accepted applications from women often required higher test scores and grades for their admission. Once admitted to schools, women had less access to scholarships; were excluded from “male” programs, such as medicine; and faced more restrictive rules, such as early curfews, than their male peers. Discrimination extended beyond students; women faculty were more frequently denied tenure than their male counterparts, required to take pregnancy and maternity leaves, or prohibited from entering faculty clubs.”

Prior legislation either did not address sex-based discrimination or did not address education.

Two examples of where sex-based discrimination is absent from law are the 14th Amendment and Title VI. The 14th Amendment’s equal protection clause was not applied to females until four years after Title IX passed Congress and only via the Supreme Court’s decision in Craig vs. Boren in 1976 that extended equal protection to females. The second example, Title VI of the Civil Rights Act of 1964, did not include sex as one of the covered categories.  It states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Sex is conspicuously absent.

Though sex-based discrimination was included in the Equal Pay Act of 1963 and in Title VII, the Equal Pay Act of 1963 did not apply to educational institutions nor did Title VII until it was amended in 1972. Furthermore, even once Title VII’s reach extended to educational institutions as places of employment, the EEOC did not adequately enforce Title VII due to considerable disagreement on the commission regarding “how vigorously this prohibition should be enforced, and what kinds of employment practices it should reach.” (Busch, Elizabeth Kaufer; Thro, William E.. Title IX (Critical Moments in American History) (p. 4). Taylor and Francis. Kindle Edition.)”

What follow are some indications of the impact of sex-based discrimination on the status of females prior to Title IX.

• … a woman who applied for a position at one of our prestigious small New England colleges and received this answer: “Your qualifications are excellent, but we already have a woman in this department.” Another school wrote to another woman that the department did not hire women at all. Some departments in a number of schools refused to hire married women.

• Many undergraduate schools limited the number of women who would be admitted. During a time period in the early 1960s, 21,000 women were rejected for admission to Virginia state colleges and universities. How many men were rejected for admission during the same time? Not one.

• The School of Veterinary Medicine at Cornell University, like most professional schools, had a fixed quota for women students. It would admit two women per year, no matter how many applied nor how brilliant the women were.

• In some colleges women could not major and sometimes not even take courses in some departments such as chemistry (Sandler 2).”

• Women received about twenty-two percent of the doctorates in psychology in the late 1960s, yet in 1970, the last woman hired by the Department of Psychology at the University of California at Berkeley had been in 1924, and of the forty-two members of the 1970 department not one was female.

 • Of the 411 tenured professors at the Graduate School of Arts and Sciences at Harvard University, not one was female, although twenty-two percent of the students were female” (Sandler 4).

“The 1960s classroom routinely segregated the sexes based upon subject—young women were excluded from industrial arts and auto mechanics classes, while young men were denied access to home economics, secretarial training, and nursing.”

1971-1972 Statistics compared to 2010-2011

At universities, “many departments had no women at all, even though women often obtained as many as 25 percent of the doctorates in those fields. … At the administrative ranks, women were a rarity.” Even women’s colleges tended to be led by men. In athletics, women were told they could cheer from the sidelines or perhaps play a half court version of basketball that was not too strenuous. In post-graduate studies, future Supreme Court Justice Ruth Bader Ginsberg and other women were asked to justify their presence at schools such as Harvard Law, when a man could have occupied their classroom spot. And, at the University of Maryland, Ph.D. candidates such as future Title IX advocate Bernice Sandler, were dissuaded from applying for tenure-track faculty positions. (Busch)”

How did Title IX become law?

Bernice Sandler had just finished her doctorate at the University of Maryland in 1969. After being rejected for three job positions with statements “you come on too strong for a woman,” [women] “stayed home from work when their children were sick.” and that she was “just a housewife who went back to school,”so she decided to research what legal remedies were available to women who were denied opportunity because of their sex. Finding that the Equal Pay Act of 1963, Title VII, Title Vi, and the Fourteenth Amendment did not prohibit sex-based discrimination in education, she did run across a Presidential Executive Order “which prohibited federal contractors from discriminating in employment on the basis of race, color, religion, and national origin. There was a footnote … The footnote stated that Executive Order 112464 had recently been amended to cover sex discrimination by Executive Order 11375” (Sandler 3).

Using Executive Order 11375, Bernice Sandler filed “charges of sex discrimination … against about 250 universities and colleges.” She had recently jointed the Women’s Equity Action League (WEAL) and WEAL filed the “first administrative class action complaint in January 1970 against every university and college that received federal contracts” (Sandler 3-4).

Most of these cases were lost, but by 1970 the first federal investigation of sex discrimination in American universities began. Representative Edith Green sat on WEALs advisory board and she was also the chair of the Special Sub-committee on Education of the Committee on Education and Labor. With the data and constituency that Sandler had accumulated, Representative Green was able to initiate the legislation that eventually became Title IX, and that legislation may have passed, according to Sandler, “because the awareness of the extent of sex discrimination in education was limited at the time, there really was little understanding of what Title IX might do” (Sandler 7).

Busch, Elizabeth Kaufer; Thro, William E.. Title IX (Critical Moments in American History) (p. 5). Taylor and Francis. Kindle Edition.

Sandler, Bernice Resnick. “Title IX: How We Got It and What a Difference it Made.” Cleveland State Law Review, 2007, https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1193&context=clevstlrev. Accessed 06 June 2021.