Fifty Years of Title IX

January 27, 2022

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance.”

These words that make up Title IX are often seen as the means by which the United States was able to enforce equality for women across the country, but it has proven to be much more than that in the fifty years since it was passed by Congress in June of 1972.

Equity Versus Equality

We all learned about equality as kids, and how everyone should have access to the same things, but it turns out that the term “equality” leaves a lot of room for debate based on the idea that every person in question has access to the exact same things, no matter what their needs were in the beginning of the event in question.

The idea of Equity is much more nuanced, and has become a significant element of Title IX for everyone, both in educational settings and in the resulting world at large.

So what is Equity? Equity is what most people mean when they say Equality – the idea that not only does everyone have access to the same opportunities, but scaled in a way that makes everyone capable of achieving the same success.

For example, the 14th Amendment of the U.S. Constitution, upon which Title IX builds, states, in part, the following:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In this wording, states argued that by providing access to some form of education and some form of athletics, they were meeting the minimum requirements set forth by the Constitution. This was hotly debated, but the fact was that the way the Amendment is worded was unclear as to how much “equality” women and others were supposed to have.

That’s where Equity comes in. Rather than simply marking the entry point, which the term Equality has come to mean, Equity demands that the end point be equally accessible to all. As this is rooted in politics, and the Constitution no less, there are still many arguments made and many nuances that must be attended to – which means that the fight for equity is an ongoing process, even today.

Why Did We Need Title IX To Begin With?

It’s easy, in today’s world, to forget that the nineteenth amendment, which gave women the right to vote, is barely 100 years old. The Civil Rights Act of 1964 was also written just over 50 years ago, not to mention how implementation has gone.

For example, in 1968, four years later, some college students attempted to desegregate a bowling alley in South Carolina, which ended up resulting in violence against them and an ensuing riot called the Orangeburg Massacre, during with state police fired on college students protesting racial segregation.

In 1992, the country broke into chaos again after Rodney King was recorded being beaten by LAPD police officers, demonstrating a frustration at the lack of equity for Black Americans even further after the Civil Rights Act of 1964.

And in May 2020, following the death of George Floyd while being taken into custody by police, during the worst pandemic the United States had seen in over 100 years, people rose up in protest against the inequitable treatment of people of color once again.

But where does Title IX fit into all of this? The struggle for equitable treatment for all genders has been difficult because in the traditional hierarchies of our society, once one group has received their fair treatment, or a taste of it, there is almost always a shift back to the patriarchal roles that define power as it relates to gender in most societies today.

Rooted In Athletics In Education

While Title IX was originally written with a mind to create equal opportunities for women in the world of education, our society has grown and changed over the last 50 years, and so has Title IX to keep up with those changes.

The NCAA reported that there were nearly 152,000 men in college sports and just over 15,000 women in college sports programs in the years leading up to 1972 and the implementation of Title IX. Women made up about 1/11th of all college athletes.

This was more than just letting women play in sports – sports programs provided scholarships, academic opportunities, and opportunities for professional athletic goals beyond college. The disparity between the genders meant fewer opportunities for women to attend those colleges whose funding was largely made up of college athletic support.

According to the NCAA’s equity report in 2018, there were about 279,000 male athletes in the NCAA, and about 216,000 female athletes. It is important to note the growth there, and while there is still a disparity, those numbers mean that in almost 50 years women went from being less than 10% of college athletes to almost 45% of college athletes. And that’s thanks in large part to the efforts of Title IX and its subsequent applications and changes.

While Athletics was a key factor in the original drafting of Title IX, along with the connected educational opportunities, Title IX would grow and change over the years to encompass many more elements of equity in education.

Title IX For Everyone

While the original intent of Title IX was to provide assurances and protection for women in education, it was worded, and has been interpreted legally over the years, to include protections for not only men but all genders.

It has also expanded to include bullying, sexual harassment, and sexual misconduct, as well as many elements of the LGBTQIA+ communities in their struggle for equity in today’s world.

It has also expanded to include Title IX Protections for K-12 Schools as well as Higher Education Institutions, and has been key in protecting students in recent years as the prolific growth of online bullying and harassment has become more widespread and, with the permanence of the Internet, much more damaging.

• 1972 – Congress enacts Title IX of the Education Amendments
• 1975 – What would become the Department of Education requires every educational institution receiving Federal funds to file documents proving Title IX Compliance
• 1984 – The US Supreme Court ruled that Title IX Compliance was required for any educational institution receiving Federal funds
  • Before this time, only the program receiving the funds had to be Title IX Compliant
• 1988 – US Congress clarifies that for Title IX and Civil Rights, any program or activity refers to any part of the operations of an educational institution
  • President Reagan originally vetoed the Act, but was overridden by Congress, ensuring that the Civil Rights Restoration Act went into effect.

As you can see, even in its early days Title IX was undergoing changes to meet the demands of a complicated society, and also faced opposition to its expansion beyond athletics and other related programs.

Once the 1987 Civil Rights Restoration Act was passed, Title IX was one step closer to Title IX as we know it today. But not quite. https://www.uscourts.gov/educational-resources/educational-activities/14th-amendment-and-evolution-title-ix

The 1990s

Much of Title IX Law and Title IX Compliance as we know it today began in the 1990s. In fact, in 1990 the Office for Civil Rights published the first version of the Title IX Investigators’ Manual, which would become the benchmark for training such as ICS’ Title IX University and others to ensure Compliance and Success with Title IX today.

Lawsuits were and are prevalent in relation to Title IX, in no large part due to the fact that institutions and people are still reluctant to change and/or give up what they see as tradition or monetarily more beneficial.

This came to a head in 1992 in Franklin v. Gwinnet County Public Schools, in which the Supreme Court ruled that students who suffer from Sexual Harassment or Misconduct can receive monetary damages under Title IX. Schools and districts resisted this. This ruling ended up giving some semblance of teeth to Title IX and helped ensure K-12 Title IX Compliance and Higher Education Title IX Compliance.

In keeping with the creation of official documents in the 1990s, the Office for Civil Rights released Sexual Harassment Guidance as an official document that organized and categorized standards for Title IX Compliance. This made it easier for institutions to know exactly what was required, and provided guidance for Title IX Lawyers and the courts to ensure protection of vulnerable students.

The 2000s

The 2000s were almost the end of the Women’s Educational Equity Act as a whole and Title IX along with it because of attempts to remove funding from those programs in the presidential budgets.

Fortunately, the programs continued on, albeit under the constant threat of lower funding and federal budgets, though they would strengthen over the decade.

Title IX Law continued to be a complicated arena as well, particularly in the 2005 case Jackson v. Birmingham Board of Education in which the Supreme Court ruled that Title IX Protections included protecting individuals, including coaches, teachers, and other school staff, from retaliation for reporting Title IX Compliance violations. This created even more protections and assurances that K-12 Title IX Compliance and Higher Education Title IX Compliance could be enforced and maintained.

The 2010s To 2021

As equity for women and men settled in Title IX, in a 2011 “Dear Colleague” letter the U.S. Department of Education informally recognized and distinguished that equity also belongs to people in the LGBTQIA+ communities. The DCL stated that schools had an obligation to protect against harassment and discrimination based on gender and sexuality related to LGBTQIA+ issues and, significantly, that this fell under Title IX protections related to “sex.”

In 2016, the U.S. Department of Education took a de facto stance that sexual orientation was protected under Title IX. Thereafter, the DOE reversed its position; however, the 2016 position was readopted in 2021 by the DOE in its Notice of Interpretation.

Another significant development, in 2020 in Bostock, the Supreme Court ruled that discrimination based on sex in the workplace includes gender identity and sexual orientation under Title VII. While Title VII and Title IX are separate laws that prohibit discrimination, some courts have looked to Title VII to interpret Title IX. Noteworthy, “Biden’s executive order on this topic upon coming into office also relied on Bostock as support for its position.

Title IX Today

Title IX has been controversial to some since its inception, and it is still a hotbed of legal battles today. In fact, under the previous presidential administration, changes were made to Title IX that created backlash and concern among equitable treatment activists and people who work to protect students from bullying, discrimination and Sexual Harassment.

These changes, specific to Title IX sexual harassment, were implemented in May of 2020 with the new 2020 Title IX regulations. While challenges to the new regulations were generally not successful, a controversial clause that prevented colleges from accepting certain testimony was blocked in August of 2021. Within a single year, a major Title IX regulatory change went into effect, was challenged, and had part of its process removed. That’s how fast the scene can change in Title IX Law, and why it is so important to stay up-to-date on your Title IX Training.

Currently, President Biden has been in the news about his promises to take a fresh look at the 2020 Title IX regulations and a new Notice of Proposed Rulemaking, which he has slated for April 2022. There is a lot of speculation about what the new Title IX regulations will be, as well as some heated discussion about the protections that are not being afforded while the wait for April continues.

Title IX And You

Ultimately, Title IX provides protections and support for everyone in our society. Because of its wording that it protects people from discrimination based on sex, it does not only apply to women – men and, more recently, all gender identities are protected from harassment and misconduct based on their gender and sexual orientation.

If you are a Title IX Professional, Title IX Coordinator, or part of a Title IX team at your institution or district, it is more important than ever to stay up-to-date with the latest changes in Title IX law, Title IX best practices, and Title IX compliance.

To assist with compliance efforts, ICS offers Title IX Online Training for all key Title IX Compliance Professionals – Title IX Coordinators, Title IX Investigators, Title IX Decision Makers, and more. Besides the core courses, they also offer Refresher courses to ensure you are prepared for whatever comes your way in the next year.

In addition to Title IX Online Training that you can take at your leisure through Title IX University and Community Access, ICS also offers Live Virtual Certified Title IX Trainings. This includes interactive engagement with a Title IX Professional and, as always, ICS’ signature hypotheticals to put learning into practice.. You can explore our wide range of Live Virtual Title IX Trainings for K-12 schools here, and for Higher Education Institutions here.

These Live Virtual Trainings include Essential Title IX Compliance support for K-12 Schools and Districts such as Title IX Coordinator, Title IX Investigator Certifications, Title IX Decision Maker Training, and more.

We also have compliance courses and support available for Higher Education Institutions such as Title IX Coordinator Bootcamp, Title IX Investigator Certifications, Title IX Decision Maker Training, and more.

Thank you for all that you do as Title IX Professionals or Administrators, and here’s looking forward to a 2022 made and kept better by all of your hard work!

ICS provides a wide range of Title IX services, including its Community Access program and its live interactive trainings. Contact us for more information.