By Thomas Ultican 6/2/2024
Joe Biden promised, when running for president, to undo the damage to Title IX implemented during the Trump and DeVos era. The 1972 amendment to the US education law enacted rules against sexual discrimination at all schools receiving federal dollars. This was a fix to the 1964 civil rights law which lacked protection in schools based on a students’ sex. During the three year process of developing new guidelines, the Education Department received over 300,000 comments. The rules were announced in April and will go into effect in August.
Under Trump’s rules, there was no protection for LGBTQ+ students. That will change.
Biden’s changes will replace a narrow definition of sex-based harassment with a wider range of conduct. They reverse a requirement that schools only investigate alleged incidents on their campus. Also ended are demands for in-person live hearings in courtroom-like settings where the person accused of sexual misconduct, or their lawyer, can question the accuser.
Betsy DeVos called Biden’s new rules a “radical rewrite” of the law. She claimed it was an “endeavor born entirely of progressive politics, not sound policy.” Kel O’Hara, a senior attorney at Equal Rights Advocates, had a much different take:
“The new regulations put an end to unfair and traumatic grievance procedures that favor harassers. No longer will student survivors be subjected to processes that prioritize the interests of their perpetrators over their own well being and safety.”
Genesis of Title IX
Bernice Sandler, known as “The Godmother of Title IX”, earned a master’s degree in Clinical and School Psychology and in 1952 married Jerrold Sandler. The couple had two children. Bernice returned to school at the University of Maryland where she earned a Doctor of Education in Counseling and Personnel Services.
Sandler began teaching at Maryland part-time but her application for a full-time position was continually denied. When inquiring why, Bernice was told she “comes on too strong for a woman” and that she was “just a housewife who went back to school.”
This led Bernice to joining the Women’s Equity Action League (WEAL). While researching the strategies of African American civil rights activists, she discovered that in 1968, President Lyndon B. Johnson further amended the civil rights restrictions on companies receiving federal dollars from discriminating on the basis of race, color, religion and national origin, by adding gender.
Bernice realized that most universities had federal contracts and were illegally not hiring women. Between 1969 and 1971, she and WEAL filed sex discrimination charges against 250 schools, including the University of Wisconsin, Columbia University and the entire state university and college systems of California, New Jersey and Florida.
In 1970, she filed a class-action lawsuit against all universities in America.
In the same year, Edith Green was an education policy expert and Democratic Congresswoman from Oregon. The sudden flurry of enforcement requests piqued her interest and caused Green to begin hearings on sex discrimination at federally funded universities.
Persuaded by testimonies put forth during the hearings, Representative Patsy Mink of Hawaii joined Green in drafting legislation prohibiting sex discrimination in education.
In the Senate, Indiana Democrat, Birch Bayh, led the legislation. Bayh’s wife, the former Marvella Hern, was an outstanding student from Oklahoma. Marvella was drawn to the work of Thomas Jefferson, founder of the University of Virginia. She wanted to go to that college but her application was returned with a note saying, “Women need not apply.”
Bayh was a co-recipient of the NCAA Gerald R. Ford Award at the 2006 convention. In an interview he shared with NCAA News about Title IX:
“We spent 26½ years together with Marvella teaching me about what it was really like being a woman in a man’s world. Without her, I know I wouldn’t understand the importance of this legislation.”
When the legislation was formed, Senator Bayh wrote the 37 words that became 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.”
On Title IX’s 50th anniversary in 2022, The Harvard Gazette interviewed Jeannie Suk Gersen, Professor of Law, and Susan Ware PhD historian.
Gersen noted the motivation for the law, “Women faced blatant educational inequality, such as exclusion from certain colleges and universities or from certain programs and spaces within those schools, higher admissions standards than men, more frequent tenure denials than men, and myriad other imposed disadvantages relative to men.”
Ware shared her opinion on why the law made such dramatic and rapid change:
“Once you point out that the men’s crew team has its own boathouse and the women have to change in their van and they don’t have showers, anybody can see that’s not fair, and it’s not equal. So just making a list of things that need to be addressed and having Title IX to back you up was a very effective way to get change.“
Those changes came quickly. By the early 1980s, women were receiving about 40% of the resources compared to men for collegiate sports programs. Title IX is often presented as a zero-sum game; “if women win, men lose.”
Ware shared one of her favorite quotes, “There’s men, there’s women, and there’s football.”
A Bipartisan Effort
June 23 1972, President Richard Nixon signed Title IX into law. One of the biggest supporters of the legislation was Alaskan Republican Senator, Ted Stevens. He believed young women should have equal opportunity to their male counterparts for participating in school athletics. His support gained him a reputation as “protector of Title IX.”
On March 1 1972, the Senate version of Title IX overwhelmingly passed (88-6). Ten days later, the House version passed (275-125). After the bill went through conference committee, the Senate agreed (63-15) and the House voted (218-180) to pass it into law.
This bill not only upended intercollegiate sports but also touched many other corners of the campus. It forced shifts in hiring, promotion, admissions, reckoning on sexual harassment and assault.
There has also been a dramatic change in college graduation rates. Pew research showed that in 1970, 8% of women and 14% of men graduated. In 2021, those college graduation numbers became 39% for women and 37% for men.
Title IX opened a path of justice and equality in America.
Biden’s new rules have made the law more robust and fair.
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