Do The Right Thing: A Search For An Equitable Application Of Title Ix In Historically Black Colleges And University Athletics

Author:A. Jerome Dees
Position:Assistant Professor, Faulkner University-Thomas Goode Jones School of Law; B.A

I. Introduction. II. Historically Black Colleges and Universities. A. Origins of African American Education. B. Ayers v. Allain. C. Knight v. Alabama. III. History of Women's Collegiate Athletics. A. Pre-Title IX Athletics. B. Pre-Title IX Athletics at HBCUs. IV. Title IX. V. Title IX Tests of Compliance. A. Are Participation Opportunities Substantially Proportionate to Enrollment?. B. Is There ... (see full summary)


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I Introduction

Only the educated are free.1 "Historians have richly documented the zeal with which freed slaves of those days took to the books which had been forbidden them in their time of bondage."2 Education has long been considered the key to success in America, and higher education has been particularly important because it provided Blacks access to American society.3 "Learning was to be the bridge that would carry [the newly freed slaves] from emancipation onward to real freedom and dignity."4 From the Colonial period through the Civil War era, African-Americans as a group were largely denied the opportunity to have a formal education.5 However, immediately before the Civil War, a new paradigm in American education began to take form with the advent of what is now called the Historically Black College and University (HBCU).6 As a result of these institutions, African-Americans would have access to reading, writing, arts, science, and professional learning. Unlike the all-white colleges and universities of the nineteenth century, HBCUs, from their inception, brought equal opportunity to the world of American education.7

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The 1986 Amendments to the Higher Education Act of 1965 defines an HBCU as "any historically black college or university that was established prior to 1964, whose principal mission was, and is, the education of Black Americans."8 The initial objective of these schools was to provide instruction at the elementary and secondary levels because of the inadequacy of public education and legislative prohibitions against educating blacks.9 "The majority of the [nation's] 105 HBCUs are located in the southeastern states, the District of Columbia, and the Virgin Islands.

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They include 40 public four-year, 11 public two-year, 49 private four-year, and 5 private two-year institutions."10 By 1994, HBCUs enrolled nearly 300,000 students.11 Although the 103 HBCUs "constitute only 3 percent of the country's institutions of higher education," 28% of all blacks receiving bachelor's degrees obtain them at HBCUs. Today, approximately 214,000 blacks enrolled in higher education attend an HBCU.12

This Article will examine the historical background of the HBCU and its policy of equal opportunity in education. Additionally, it will provide an overview of Title IX, examining the statute and the implementing regulations, the 1979 Policy Interpretation and the 1996 Clarification of Intercollegiate Athletics Policy Guidance. Finally, this Article will consider the general effects of the application of Title IX on HBCU athletics, the problems experienced by the institutions, and the solutions available within Title IX for the HBCU.

II Historically Black Colleges and Universities
A Origins of African American Education

In 1860, approximately 4.4 million black people were living in the United States.13 Almost 4 million of them were domiciled in southern and border states, and about 3.95 million of them there were held in involuntary servitude as slaves.14 According to the 1860 census, there were approximately 227,386 free blacks in the southern and border states.15

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Prior to the Civil War, the majority of southern states outlawed educating slaves, and some states were more restrictive, outlawing or limiting the education of any black person, free or slave.16 The correctness of these statutes was reinforced within the southern psyche by the 1822 Denmark Vessey slave revolt and the 1831 Nat Turner slave rebellion.17

HBCUs came into existence over a decade before the Civil War.18 The three pre-Civil War institutions include Cheyney University, Pennsylvania (1837), Lincoln University, Pennsylvania (1854), and Wilberforce University, Ohio (1856).19 Although Cheyney University is often called the first African-American college, it initially served as a high school and college preparatory school.20 Lincoln University, originally called the Ashmun Institute, was the first school expressly created for college level education for African Americans.21 In 1866, the school was renamed in honor of Abraham Lincoln and is now known as Lincoln University.22

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Wilberforce University was the first college to be owned and operated by African Americans, in addition to being the first college for black women.23

Northern white philanthropists, freedmen societies, and churches were the initial sponsors and supporters of these schools.24 In addition to the northern philanthropists, free blacks and religious groups such as the African Methodist Episcopal (AME), AME Zion, Negro Baptist, and Colored Methodist Episcopal (CME) provided support for schools that eventually evolved into college level institutions.25 Prior to the Civil War there were no public institutions of higher learning for blacks; all of the existing institutions were private.

During the Civil War, Congress passed the Morrill Act of 1862, which provided each state with 30,000 acres of federal lands to be sold and supplied funds to be used to finance schools to teach agriculture and the mechanic arts,26 thus the "A&M" in the names of many of these schools.

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In addition to agriculture and the mechanic arts, it was the mission of these institutions to teach military tactics and home economics, as well as classical studies so that members of the working classes could obtain a liberal, practical education.27

The expansion of educational opportunities for members of the working classes did not include those persons working in involuntary servitude or those of African ancestry. When southern states established schools of higher education for the working masses under the first Morrill Act, slaves and free blacks were denied entry into those schools by law.28 Conversely, in spite of the lack of specific language requiring a provision for black education, Mississippi, Virginia, South Carolina, and Kentucky set aside a portion of the original land-grant endowment for the creation and support of black land-grant colleges.29

Upon the conclusion of the Civil War, during the Reconstruction Era, the federal government required southern states to provide public education for all citizens, including the newly freed slaves. To assist in this endeavor, Congress created the Bureau of Refugees, Freedmen and Abandoned Lands, better known as the "Freedmen's Bureau."30 The Bureau, in conjunction with Northern benevolent societies, secured buildings, provided teachers and books, and protected the schools that aided in the education of former slaves.31 By the sunset of the Freedmen's Bureau in 1872, the Bureau had helped establish approximately 2,677 schools.32

The most substantial year for the growth of black schools of higher education was 1867 when ten private schools, all still in existence today,Page 225 were established.33 In 1867, no public institutions of higher education for blacks had been established at that time.34 The growth of black institutions of higher education would continue through the end of the nineteenth century, primarily due to the increasing number of private schools of higher education. Additionally, access to professional schools became more important to blacks. Meharry Medical College, the first black medical school in the U.S., located in Nashville, Tennessee, was established in 1876.35 Spelman College in Atlanta, Georgia, a college for black women, was created in 1881.36 In the same year, Booker T. Washington became the first principal of the Normal School for Negroes in Tuskegee, which would later become Tuskegee University in Alabama.37 "In 1896 George Washington Carver joined the faculty [at Tuskegee Institute] and revolutionized agricultural development in the south in the early twentieth century."38

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Tuskegee University and Howard University occupy very special positions in black higher education. Although both schools are classified as private institutions, each receives public funds, as do land-grant colleges.39 Howard University of Washington, D.C. is a privately controlled school that was incorporated by an act of Congress in 1867.40 Howard University was initially supported by the Freedmen's Bureau and private contributions.41 The federal government has provided an annual subsidy for Howard since 1879.42 Like its northern brother, Howard University, Tuskegee Institute also became the product of governmental legislation when, in 1881, the Alabama legislature granted a charter for a normal school for the education of blacks.43 The legislature also supplied an annual appropriation for support of the school that...

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