Fifty Years On, Title IX’s Legacy Includes its Durability

It took only 37 words to change education for millions of American girls and women. The succinct language of Title IX, a landmark education law, was written in just 37 characters.

“You come on too strong for a woman.”

This was the message Dr. Bernice Sandler received in 1969 when she applied to a permanent position at University of Maryland. She was an adjunct professor. Three years later — after a class-action lawsuit on behalf of women in higher education and the sly maneuvering of a handful of lawmakers — women were given a means to ensure equal access to higher education for the first time in American history.

Title IX was a significant success because of its profound repercussions. It passed without much fanfare. It is nestled between two landmark provisions that were meant to grant rights to women within a 12-month time frame: The Equal Rights Amendment (or Roe v. Wade) It appears that only one of the three provisions will be left standing fifty years later.

The Equal Rights Amendment, which provided an explicit guarantee of equal protection for women in the U.S. Constitution was first proposed in 1923. It was approved by the Senate on March 22, 1973. It was not ratified by enough states within the 10-year deadline to allow it to be added.

President Richard M. Nixon signed Title IX on June 23, 1972.

Roe V. Wade, the Supreme Court ruling that legalized abortion in the United States was announced on January 22, 1973. However, it is widely believed that the decision will not be celebrated its 50th anniversary. On May 2, a draft opinion that suggested that the Supreme Court might overturn an earlier ruling was leaked. This would cause laws to be amended quickly in many states.

What makes Title IX so resilient? A broad public support and an act of Congress are two things that have made Title IX so durable. Title IX was created to equalize college admissions. However, its most notable achievement is the inclusion of women into interscholastic athletics, which led to a surge in youth sports for girls.

“Everyone can relate to sports, whether it’s your favorite team or college athletic experience — sports are a common denominator that brings us together,” said Dr. Courtney Flowers, a sports management professor at Texas Southern University and a co-author of a new analysis of Title IX by the Women’s Sports Foundation. “Everyone knows the word but ties it to athletics.”

According to the report, 3,000,000 more high school girls now have opportunities to play sports than before Title IX. Today, 44% of college athletes are women, as opposed to 15% before Title IX.

“There had to be legislation that opened the door and changed the mind-set,” Flowers said, adding: “Because of Title IX, there is a Serena, there is a Simone Biles.”

Title IX emerged as an ember from the civil rights and women’s liberation movements. Its success was far from certain, just like the policies that preceded Title IX. Experts agree that it was important to keep it under the radar.

U.S. Reps. Edith Green of Oregon, a longtime advocate of women’s inclusion, and Patsy Mink of Hawaii, the first woman of color elected to Congress, saw the struggles that the Equal Rights Amendment had faced as it made its way through the House and Senate. As they created Title IX, the two tried to avoid any pushback from their colleagues or educational institutions.

Green and Mink looked at amending the Civil Rights Act of 1964. This provision, among others, prohibits discrimination in the workplace on the basis of race and sexual orientation. The political path to include education provisions was difficult.

On the other hand, the reauthorization of Higher Education Act of 65 provided an opportunity for a ninth title (or subset) to be added to a long list of amendments to education. The act was eventually reauthorized as an omnibus educational bill. It dealt with anti-busting and federal funding of financial assistance for college students.

Green and Mink opted to abandon the Civil Rights Act Amendment amendment, but they saw reason to continue using its language.

The United States prohibits anyone from using the following:On the basis of sexBe excluded from, denied the benefits of, or discriminated under Any educational program or activityFederal financial assistance.

Green, Mink and other lawmakers moved forward on Title IX “not by making a huge social movement driven by an aggressive stance for education equality,” said Dr. Elizabeth A. Sharrow, a professor of history and political science at the University of Massachusetts at Amherst. “They did so very subtly and quietly, and they did that on purpose because they anticipated that this idea — that we should name certain things as sex discrimination in education — could be politically contentious and they were better off finding ways to downplay it.”

It was personal for Mink and Green, whose own experiences dealing with discrimination influenced policymaking. Green wanted to become a lawyer, but her family forced her to teach. Mink was denied entry into dozens of medical schools due to being a woman.

“I do think that watching her daughter be subject to the same kinds of exclusion and straight-jacketing that she had experienced as a child and as a young adult trying to carve her way forward, seeing it happen all over again, was a real motivating factor for her to try to figure out a way to try to make equality the standard and discrimination declared the wrong,” said Wendy Mink, Patsy Mink’s daughter and a political scientist.

It was also personal for Senator Birch Bayh, Indiana. After he had sponsored the Equal Rights Amendment in Senate, he was given the task of doing the same for Title IX. Bayh’s wife, Marvella, had also been denied equal opportunities.

“My father came to feel that that was deeply unfair,” said his son Evan Bayh, also a former Indiana Senator. “He felt that if our society was going to fulfill its potential, we couldn’t disadvantage more than half the population.”

The bill’s main thrust was on financial aid and desegregation strategies, so Title IX was not given much attention. In his signing statement, President Nixon did not mention it. The bill’s signing made the front page of The New York Times; Title IX received a bullet point.

While the Equal Rights Amendment faced opposition from Phyllis Schlafly, who led a grassroots conservative campaign against its ratification and Roe v. Wade had religious leaders and social conservatives ready to protest, there was no immediate opposition to Title IX according to Dr. Deondra Rosa, an associate professor in public policy at Duke University. She focuses on the landmark social policies of the United States.

Title IX also had what Rose called a “pivotal” advantage as an education policy passed down multiple generations.

A 2017 poll by the National Women’s Law Center found that nearly 80 percent of voters supported Title IX. (A March survey by Ipsos and the University of Maryland of parents and children found that most had not heard of Title IX but believed generally that boys’ and girls’ sports teams should be treated equally.)

“It’s a hard thing for lawmakers to walk back,” Sharrow said.

Sharrow stated that the Equal Rights Amendment, Roe v. Wade, and Title IX all share a common goal of addressing gendered inequalities in American society. However, they differ in how law and policy were used to enact change.

The Equal Rights Amendment was an attempt at amending the Constitution. This process is very difficult. Yet had it been ratified, Sharrow said, “It would have been far more sweeping than any other single policy.”

Roe v. Wade was, in contrast, an interpretation of constitutional law as a decision made by the Supreme Court.

Title IX’s advantage, Rose said, was that it was relatively vague, which “gave the regulation a fighting chance over time.”

That’s not to say Title IX avoided criticism. As soon as it was signed into law, the question of enforcement “unleashed torrential controversy,” Wendy Mink said, primarily over athletics and physical education. The Roe decision was in the early 1973s, and the outcry started around that time. Long-running discussions over the implementation guidelines, which were finalized by 1979, centered on the question of whether sports were appropriate for women.

“As backlash, they fed on each other — the backlash against women’s bodily sovereignty and the backlash against women being able to use their bodies in athletics,” Mink said.

Title IX was expansive enough to provide protections against sexual harassment and assault on campus. In 1977, Yale’s women made sure that this was done by filing a lawsuit that resulted in grievance procedures being established for colleges all over the country.

“Title IX is excellent — we’re subjects, we’re not objects anymore,” said Dr. Ann Olivarius, one of the lead plaintiffs in the Yale lawsuit and a lawyer specializing in sexual misconduct. “We’re actually participators, we are active narrators of our own life with our bodies and we know that we actually have bodies and we use those bodies.”

Title IX evolved to meet the needs of a more inclusive society, just as it did in 1972. The Education Department stated that it planned to extend Title IX protections in 2021 to transgender students. (The Biden administration has not yet finalized its proposals.

Eighteen states have enacted laws or issued statewide rules that restrict participation in girls’ sports divisions by transgender girls, and a group of 15 state attorneys general urged the Biden administration in April to reconsider its interpretation of Title IX.

“We’re seeing these policies and the necessity of moving beyond a very narrow definition of understanding of a policy like Title IX,” Rose said. “Some people are working to use Title IX to restrict and confine, and that’s out of step with the intention of the policy.”

While the 50th anniversary of the law’s passage is a moment to celebrate, experts said, it is also a moment to consider what Title IX has not addressed. Although access to college sports has improved, there is still inequity. Other elements besides sex, including race and disabilities, are not included in Title IX’s language.

“Yes, we celebrate, but, boy, we still have work to do,” Flowers said.

The Women’s Sports Foundation found that men have nearly 60,000 more opportunities in college sports than women have. In scholarships, recruiting dollars, and head coaching positions, women in college sports lag behind their male counterparts. Women of color in particular are still trailing behind their white peers — only 14 percent of college athletes are women of color.

Experts agree that Title IX will not suffer the same fate as Roe v. Wade or the Equal Rights Amendment. If and how Title IX could be weakened “is in the eyes of the beholder,” said Libby Adler, a constitutional law professor at Northeastern University.

“I don’t see it being struck down. I can’t imagine what that would look like,” Adler said. “Never say never, but that’s unimaginable to me.”

Adler stated that Title IX could have a different interpretation on the issue of transgender performers and other classes that are not defined in the language.

“It’s that elasticity or indeterminacy that makes it unlikely to be struck down, but much more likely to be interpreted in ways that are consistent with the politics of the judges we have,” she said.