Preserving the Mandate of Title IX

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A case with far-reaching implications for civil-rights enforcement in schools and universities is currently pending before the U.S. Supreme Court, and once again the Reagan Administration has chosen to abandon a long-standing interpretation of law followed by previous Administrations. The law in question--Title IX of the Education Amendments of 1972--prohibits sex discrimination in federally funded education programs. The case is Grove City College v. Bell.

The facts of Grove City relate specifically to institutions of higher education; however, the legal issues at hand are also of central importance to the fair governance of elementary and secondary schools, and especially to the opportunities afforded female students. The Title IX law and its regulations directly and comprehensively address three areas of schooling: admissions, athletics, and counseling. School systems have historically imposed sex barriers to equal opportunity in all three of these areas.

The dispute is over the scope of Title IX's coverage. It revolves around the phrase in the law that bars sex discrimination in any educational "program or activity" receiving federal financial assistance. Title IX's regulations, published by the former Department of Health, Education, and Welfare (HEW), define institutions that receive any amount of federal aid, whether directly or indirectly, as the "program or activity" subject to the law.

The Nixon, Ford, and Carter Administrations, and the Reagan Administration at first, accepted and enforced this broad "institutional" interpretation of the law. Shortly before the case reached the Court, however, the Justice Department changed its position--the Administration now favors a narrow "programmatic" interpretation of Title IX. In a brief filed with the Court last August, and in oral arguments before the Court last November, the department presented the weakest defense it could devise without totally eviscerating the law--the idea that only those parts of a school or college that receive aid directly, and not the college as a whole, must comply with the law.

Title IX requires school systems, universities, and other educational institutions that receive federal assistance to sign a form assuring that they will not discriminate on the basis of sex. Grove City College has refused to sign such a form. (College officials insist that the institution does not discriminate against female students or employees.) The small, private Pennsylvania college maintains that it has avoided state and federal assistance programs in order to preserve its independence. Some of its students receive Pell Grants directly from the federal government through the U.S. Education Department's alternative distribution system. Grove City College does not serve as a conduit for those funds as do most institutions, although students do use such aid to pay tuition costs at the college. But Grove City argues that tuition payments made directly to students do not make it a "recipient" of federal aid for the purposes of Title IX.

When an administrative-law judge found otherwise in an enforcement proceeding and prohibited the payment of aid to students attending the college, Grove City took its case to the federal courts. Both the district and appellate courts upheld the administrative ruling.

The Justice Department's midstream reversal in the case is not the first time the Reagan Administration has tried to change civil-rights policy at the Supreme Court level. In the case of Bob Jones University v. United States, decided by the Court last term, the department tried (and failed, by a vote of 8 to 1) to convince the Court that the Internal Revenue Service lacked the authority to deny tax exemptions to private educational institutions that engage in racial discrimination.

In Bob Jones, the Court appointed an attorney to defend the previous federal policy of denying tax exemption to such institutions. In Grove City, however, the Court refused a request by women's groups to participate in oral arguments. These groups contend that Title IX covers all programs operated by an institution that receives federal aid--and not just programs that directly receive it. That position went unheard during oral arguments before the Court in November. However, more than two dozen civil-rights groups and women's organizations, as well as a bipartisan group of 47 representatives and senators, have filed "friend-of-the-court" briefs in support of a broad Title IX interpretation. Additional Congressional support has come in the form of a resolution passed in the House of Representatives by a vote of 414 to 8. The resolution supports a broad institutional interpretation of Title IX.

Title IX advocates base their position on the language and legislative history of the law. A look at the history of Title IX--during and after debate on the legislation--clearly confirms that the Congress intended to include student financial aid among the forms of federal financial assistance that subject an institution to Title IX coverage. It is also clear that the Congress intended such aid flowing throughout the institution to bring all its programs and activities within the scope of the law.

Statements made during the debate on Title IX by Senator Birch Bayh, the original sponsor of Title IX legislation in the Senate, indicate that he felt a need existed for a "strong and comprehensive measure" to protect women from discrimination--a concept clearly at odds with a narrow "programmatic" interpretation. Throughout the years, there have been numerous unsuccessful legislative attempts to limit Title IX coverage to programs that directly receive federal funds. These repeated failures give further proof of Congressional intent to interpret the law broadly. Finally, pre-enactment testimony about blatant and widespread discrimination against women in educational athletics programs, plus the failure of post-enactment proposals that would have eliminated intercollegiate athletics from the purview of Title IX, indicate that the Congress intended the law to also cover athletic programs, which ordinarily do not receive federal support.

In fact, it is precisely in the area of athletics that Title IX has had the greatest impact. In 1970-71, the academic year before Title IX became effective, only 294,000 women participated in high-school athletics. By 1980-81, that figure had jumped to approximately 1.85 million. During that same period, the percentage of high-school girls participating in varsity sports rose from 7 percent to 35 percent, and school athletic budgets for women's programs increased from 2 percent to 16.4 percent of total school athletic budgets. Before Title IX, college athletic scholarships for women did not exist. Today, colleges and universities offer 10,000 scholarships to women athletes.

It is evident that the narrow "programmatic" interpretation supported by the Reagan Administration would take the teeth out of Title IX enforcement, severely limit the law's coverage, and result in an administratively unwieldy and absurd system of rights riddled with holes. A restrictive "program-specific" approach to Title IX would fail to cover numerous students and faculty members whose link to federal funding is not direct. Such an approach would result in a discriminatory double standard--one for individuals involved in federal programs, and one for the remainder of the school system or institution. Theoretically, students and teachers in adjacent classrooms would be protected or not protected by Title IX, depending on the source of funds supporting a particular program.

It can be reasonably argued that female faculty members have alternative legal avenues available to them, including Title VII of the Civil Rights Act, which bans employment discrimination, and the Equal Pay Act, which guarantees equal pay for men and women. Such statutory alternatives do not exist for female high-school and college students, however, so they stand to lose the most under a narrow interpretation of Title IX.

The Supreme Court decision could help the confused situation among the federal appeals courts, which are divided on the issue of "programmatic" application of Title IX. For example, the First and Sixth Circuit Courts of Appeal have ruled on a narrow "programmatic" interpretation of the law, while the Third, Fifth, and 11th Circuits have upheld the broader institutional interpretation. The Education Department has chosen to base its enforcement approach on the view of the federal court in the jurisdiction in which a complaint arises. Pending a decision by the Supreme Court, the result will be administrative chaos and a system of shifting federal rights determined by geographic location.

The issues in the case are important not only relative to Title IX but to civil-rights enforcement efforts in general. Title IX forms part of a comprehensive civil-rights strategy that uses the power of the federal purse to prod school systems and educational institutions into adopting and maintaining nondiscriminatory policies and practices. The Supreme Court's decision in the Grove City case could affect the interpretation of Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973. These similarly worded statutes protect the rights of racial minorities and the handicapped, and are not limited to education as is Title IX. Title VI has served as the means to desegregate the nation's schools in the past two decades. Section 504 has given procedural protections and substantive educational rights to the handicapped. Grant recipients who do not comply with any one of these laws run the risk of losing federal funds.

There are those who argue that the gains achieved under Title IX in the past decade are more an affirmation of evolving social policy than evidence of Title IX as a cause of social reform. But it cannot be denied that Title IX has served as a stick to be wielded at noncompliant school systems. It has induced school officials to remove barriers to sex equity and has provided a useful tool for legal redress. Statistics drawn from the early years of Title IX point out the pervasiveness of sex discrimination as practiced by school systems across the country. During the first four years following the law's enactment, a total of 1,455 Title IX complaints were filed with hew Of these, 351 related to athletics, 289 to "access to courses," and 187 to student rules. (The remainder concerned employment and miscellaneous violations.)

The influence of our education system on the life plans of female students will help shape tomorrow's society. According to a report recently published by the Legal Defense and Education Fund of the National Organization for Women, nine of 10 of today's young women will work for 25 to 45 years, and two of five will be heads of households. Title IX has heightened the awareness of girls and women to the career choices traditionally closed to them and has drawn national attention to the educational and economic impact of narrowly drawn sex roles.

But statistics continue to demonstrate a gender gap in educational opportunity. Although almost one-third of college athletes are women, women's programs account for one-sixth of college athletic budgets. Of the 433,857 women who received bachelor's degrees in 1980-81, only 3 percent majored in traditionally male subjects such as physical science, mathematics, and engineering, while 23 percent majored in education and 11 percent in nursing. Yet it is in the technical and scientific fields that we see the greatest job opportunities. As for career advancement in education itself, in 1980-81 only 17.6 percent of school principals and assistant principals in the country were women. Clearly, the struggle for equal educational opportunity for women continues.

When called on in the past to interpret Title IX, the Supreme Court has searched the legislative history and found a clear Congressional intent to provide comprehensive educational equity for women. In 1979, the Court ruled in Cannon v. University of Chicago that Title IX grants women a private right to sue. The decision brought women out from under the yoke of administrative backlogs and the complaint process. Three years later, in North Haven Board of Education v. Bell, the Court held that Title IX covers employees of educational institutions and not just students. The Court further stated that Title IX is "program-specific," but reserved definition of "program or activity" for future determination.

The Court in Grove City need not address this issue. It can resolve the case merely by ruling that the college is or is not a recipient of federal funds. If the Court answers this threshold question in the affirmative, it can order the college to submit a Title IX "assurance of compliance" form to the Education Department. I hope the Court will not stop there, but will seize the opportunity to address the more crucial question of how it defines "program or activity." And I hope the Court will examine the issues in light of a clear Congressional mandate to promote equal opportunity for women.

Vol. 03, Issue 21, Page 24, 18

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