50 Years of Title Ix: So Much More Than Sports
| Citation | Vol. 91 No. 3 Pg. 30 |
| Pages | 30 |
| Publication year | 2022 |
May, 2022
By Ashley Rohleder-Webb
I: Introduction
During this 50th anniversary year of the passage of Title IX, there are seemingly endless articles, television specials, and similar tributes being produced. Opinion articles during the NCAA Basketball Tournaments compared to treatment of male and female college athletes and just how much "madness" the NCAA dedicated to the respective tournaments.[1] During warmups for their Final Four game, the University of Kansas men's basketball team wore shirts with an excerpted line from Title IX on the back, part of Adidas's "Impossible is Nothing" campaign.[2] ESPN specials are scheduled for this summer.[3] During Super Bowl LVI in February 2022, a special introduction video honoring female athletes aired, leading into the honorary coin toss by Billie Jean King, accompanied by players from girls' football teams around California.[4]
One thing many of the 50th anniversary pieces have in common is a reference to "37 words." It is even used in the title of a recent documentary produced by WNBA player Candace Parker, Title IX: 37 Words That Changed America. This references the first 37 words of Title IX: "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..."[5]
In this environment, it is easy to assume that Title IX exclusively addresses gender equality in sports, but while there are provisions that address athletics today, it addresses all forms of sexual discrimination in education in the United States, including sexual harassment and sexual assault. It has changed over these last 50 years, reflecting societal changes and changes in leadership within the U.S. Department of Education through various presidential administrations.[6]
II: Pre-Title IX
Before the 1972 passage of Title IX, women and girls had few legal protections in American educational systems. Students of both sexes were prevented from entering classes or programs stereotypically associated with the other sex.[7]Women's and girls' admission to colleges and universities was limited to a fraction of their male counterparts, as were scholarship awards.[8] Colleges could have paternalistic rules, like curfews for female students[9], or require female students to live in dorms while male students had no such requirements.[10] Athletics programs for girls and women, where they existed at all, were not funded at the same levels as sports for boys and men.[11]
Title IX's impact on girls' and women's access and achievement in education are demonstrated in college graduation rates. In 1972, women were 41% of college degree earners - associates, bachelors, masters, and doctorate degrees; in 2019, women earned 59% of degrees.[12] Its impact in athletics are undeniable and were noticeable almost immediately. In the 1971-72 school year, 3,960,932 high school students participated in athletics - 294,015 girls and
3,666,917 boys.[13] The next year, 817,073 girls and 3,770,621 boys, and in the 1973-74 school year, 1.300,169 girls and 4,770,125 boys participated.[14] In the 2018-19 school year, 3,402,733 girls and 4,534,758 boys participated.[15] In Kansas, of the 103,363 student athletes that participated in sports during the 2018-19 school year, 42,647 were girls and 60,716 were boys.[16] At the collegiate level, prior to 1981-82, participation data was only collected every five years.[17] In the 1966-67 school year, 15,182 women and 151,918 men participated in National Collegiate Athletic Association (NCAA) sports.[18] In 1971-72, 29,977 women and 170,384 men, and in 1976-77, 62,886 women and 168,136 men participated.[19] In 2017-18, 218,805 women and 281,928 men participated in NCAA sports.[20]
The former disparity in educational access impacted students beyond educational attainment and access to sports. In 1930, 14% of those in "the professions" (law, the judiciary, medicine, dentistry, architecture, ministry, science, and university teaching), were women.[21] This percentage dropped to just under 11% in 1950, due to forces like the Great Depression changing employment, and it would take until 1970 for women to again attain that level of representation in the professions.[22] Even into the 21st Century, many women prefer to pursue traditionally female-dominated careers like elementary teaching, social work and nursing.[23] But, other women with the desire to pursue professional careers were blocked from doing so because quota systems denied them entry to the course of study required to pursue such a career.[24]Since the passage of Title IX and other sex discrimination protections, women's presence in the professions expanded, rising to 47% in 2014.[25] As the need for two-or-more incomes to support a household or lifestyle has increased, a traditional male breadwinner/female homemaker model is no longer practical.[26] It also does not account for divorced couples or co-parents, increased premarital cohabitation or cohabitation instead of marriage,[27] or LGBTQ+ relationships.
A few women attempted to assert rights against sex-based discrimination even before explicit protections from discrimination on the basis of sex were enacted. Historically, female teachers could be, and were, fired for marrying or becoming pregnant during their contract. The same restrictions did not apply to men. One such case reached the Supreme Court of Kansas in 1932, in a contract dispute, and the plaintiff made public policy arguments. In May 1931, Betty Grimison (then Chaffin) accepted a contract to teach in the 1931-32 school year, to start that September.[28] It contained the stipulation that "the marriage of a lady teacher during the term for which her contract is made automatically abrogates said contract."[29] In June, Grimison married, and then when the school year began, the school board did not allow her to begin her employment.[30] Grimison argued that the contract did not require her to be unmarried during the term of the contract, just that it did not allow her to marry "during the [school] term for which her contract is made" (emphasis added), thus, the marriage did not invalidate the contract.[31] She also contended that the contractual term was discriminatory toward women.[32] The court found that the provision was not discriminatory, stating
No man and no woman has a right protected by law to be employed as a teacher ... No constitutional, statutory or common-law right of any woman would be infringed if the board refused, for any reason, to employ female teachers. Tender of employment to a woman may be on such terms as the board may deem to be for the best interest of the school, and acceptance of terms by an applicant for employment constitutes waiver of privilege to object to them.[33]
In 1973, after passage of Title IX, but before regulations were adopted and effective, a high school student brought a case under the 14th Amendment Equal Protection Clause.[34]Tammie Gilpin, a Junior at Wichita High School Southeast (Southeast High) joined the all-male cross-country team, under a school district policy that allowed coeducational participation in some non-contact sports.[35] However, after her first interscholastic meet with the team, Gilpin learned the Kansas State High School Activities Association (KSHSAA) handbook forbade boys and girls from participating on the same team in interscholastic competition.[36] Gilpin joined the boys team because Southeast High did not have a girls cross-country team.[37] The court determined that due to its policy allowing coeducational participation, the high school and the school district did not prohibit Gilpin or any other girl's participation in cross-country, but that KSHSAA's rule clearly denied her the ability to participate based solely on her sex.[38] The U.S. District Court for the District of Kansas found that KSHSAA's rule violated Gilpin's right to equal protection under the Fourteenth Amendment, stating,
Little discussion is required with regard to the importance of the policy upon which this action was premised. This Nation has a long and unfortunate history of sex discrimination manifesting itself in every conceivable field of endeavor.[39].... Accordingly, although more subtle in nature, discrimination on the basis of sex is no less pervasive or invidious than discrimination on the basis of race, alienage, or national origin.[40]
At the state level, the Kansas Act Against Discrimination was initially passed in 1953 establishing the Kansas Commission on Civil Rights (now the Kansas Human Rights Commission) and provided protection from racial discrimination in employment practices but did not include enforcement provisions.[41] Five updates between 1961 and 1970 expanded protections to different groups or to different areas of public access, including housing and public accommodation.[42] Protection from discrimination on the basis of sex was added in 1972.[43] While public accommodations fall under the scope of the Kansas Human Rights Commission (KHRC), the Kansas Supreme Court found that it does not have jurisdiction to investigate claims of discrimination in public schools.[44]
Under some circumstances, a school may become a place of public accommodation; for example, when a school sponsors an activity open to the general public. It would then wrongfully discriminate if it limited entrance to the event on the basis of race or sex. However, this is not the case when the alleged discriminatory activity centers on educational policies or access to specific schools."[45]
Additionally, the employment protections enforced by the KHRC apply to schools in their role as employers, and its jurisdiction overlaps with that of...
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