In the next few weeks, state legislators in Ohio and New York are expected to begin considering comprehensive bills designed to prohibit schools and colleges that receive state funds from discriminating on the basis of sex.
If the bills are approved--and women’s-rights advocates say that support for them in the legislatures is strong--the two states will join 31 others where such laws are already on the books or where state governors have issued executive orders having largely the same effect.
Representatives for several women’s-advocacy organizations say that the introduction of the bills in Ohio and New York represents part of an ongoing, but now increasingly important, strategy designed to ensure that women and men are treated equally in educational institutions.
When Title IX, the federal law barring schools and colleges that receive federal funds from discriminating on the basis of sex “was there and strong, it was much more likely to be invoked by women seeking justice,” said Susan Bailey, director of the Council of Chief State School Officers’ resource center on sex equity. “But if Title IX is weakened, the emphasis [on protecting women’s rights in education] will have to shift to the states.”
“People in the states are aware that the federal government is no longer pushing Title IX and, in fact, that it is pulling back on issues of sex equity,” added Theresa Cusick, an spokesman for the National Organization for Women’s Project on Equal Education Rights. “They are frightened of losing the rights that they thought they had won under Title IX and feel the need to pick up the slack being left at the federal level.”
Since 1972, the battle for sex equity in education has been fought mainly in the federal arena, largely as a result of the Congress’s passage--and the executive branch’s and federal courts’ interpretation--of Title IX.
But that situation changed, as a result of the election of Ronald Reagan and the strong gains made in the Congress in 1980 by conservatives opposed to the use of federal law to require sex equity.
Since then, the women’s-rights advocates say, Title IX has been “under attack” and, as a result of several controversial court decisions in recent months, it may become a much weaker civil-rights statute than it was during the 1970’s.
In the opinion of Ms. Cusick, the Administration’s actions in several recent Title IX-related court cases offer ample evidence that Title IX is threatened.
On Dec. 30, the Administration decided not to appeal a decision by the U.S. Court of Appeals for the Sixth Circuit that restricts the enforcement of Title IX to only those parts of a school or college that receive federal funds directly.
That decision, in the case Hillsdale College v. Department of Health, Education, and Welfare, marked the second time in the last six months that the Administration failed to appeal a federal-court decision restricting its ability to order schools and colleges that receive federal funds to comply with the law.
Furthermore, the assistant attorney general for civil rights, William Bradford Reynolds, recently said that the government may ask the Supreme Court to appoint an outside attorney to argue its former position in Grove City College v. Bell, a similar lawsuit that is also testing to what extent the government may enforce the law.
In another case being watched closely by precollegiate educators, the Sixth Circuit is expected at any time to deliver its opinion in Othen v. Ann Arbor School Board, in which the ability of the government to enforce Title IX in high-school athletic programs is being challenged.
Because the court ruled against a broad interpretation of Title IX in the Hillsdale case, Ms. Cusick says it is somewhat likely that it may do the same in Othen.
The outcomes of the cases will have a significant impact on women’s issues in the schools.
Although most Title IX-related cases that have gained widespread notoriety have involved colleges and universities, recent data supplied by the Education Department’s office for civil rights indicate that, as of Sept. 30, 54 percent of the Title IX complaints being investigated by that office involved elementary- or secondary-education issues.
Furthermore, of the 14 Title IX compliance reviews being conducted by the office at that time, five focused on elementary or secondary schools, the office’s records show.
“If these court cases are decided the way the Administration wants them to be decided, the state laws will become that much more important,” Ms. Cusick explained. “If Title IX is damaged in the courts, I’d predict that you will see much more sex-equity-related litigation being brought in state courts.”
According to Ms. Bailey, very few lawsuits have been filed in state courts charging violations of state laws that mandate sex equity in education. She says the reasons are twofold.
First, she said, because state courts have been “notoriously more conservative” than federal courts, women with complaints believed that they would have a better chance of winning their lawsuits if they were brought in federal court.
Second, and perhaps more important, she said, many of the state laws now on the books do not provide for a “private right of action"--meaning that aggrieved parties have no right to sue under the laws, but instead must rely on their state education agency to ensure that educational institutions are complying with them.
Lobbyists involved in the drafting of the state sex-equity laws in Ohio and New York say that the draft versions of the bills to be presented before their legislatures will include sections ensuring an individual’s right to sue under the laws.
Furthermore, they say, the bills are being “fine tuned” to include protections that they say are being weakened in the federal statute.
“We’re being very careful to make sure that all aspects of Title IX that we think are in danger of being weakened will be covered in this bill,” said Eileen Roberts, executive director of the Cleveland branch of the American Civil Liberties Union. Recent federal-court activity that is seen as “threatening” to Title IX “increases the sense of urgency attached to passing this bill,” she add-ed. “Normally, the aclu would advise a woman to go to the federal courts if she felt she was a victim of discrimination,” Ms. Roberts said. “But if things keep going in the direction that they are now, I certainly would expect to see an increase in legal activity at the state level.”
On the first day of this year, a comprehensive “Title IX-type” statute went into effect in California. Phylis W. Cheng, education director of the state branch of the National Organization for Women and one of the chief lobbyists behind the bill, said that the perceived threat against Title IX was just one of the reasons the bill was introduced.
“In California, we had a number of good laws on the books, but they were spread around all over the place,” she said. “The old laws weren’t being invoked or enforced because they were so spread out. We wanted umbrella legislation to pull these bits and pieces together.”
Like the Ohio proposal, the California law “plugs up a number of holes that are appearing in Title IX,” she noted.
“The law clearly states that educational institutions, both public and private schools that receive state aid, are covered,” Ms. Cheng said. “This goes all the way down to preschools.”
In addition, she said, “the definition of what constitutes aid includes all grants of property, provision of services by state personnel, tax rebates, and student financial aid.”
According to Ms. Bailey, a state approach toward sex equity in education may be inherently more effective than one directed by the federal government.
“My general impression is that people are more supportive of state legislation than they are of federal laws,” she explained. “At the state level, it’s much more likely that people from schools were involved in the drafting and passage of the legislation, that they’ve had much closer involvement with it.” Moreover, she said, “agencies in the state that have to interpret and enforce it are much closer to home than the regional office of the Education Department office for civil rights.”
