"Title IX and Sports": The Impact of a 1974 Memo to President Richard Nixon

If you are a) interested in the education of our nation’s youth, b) interested in civil rights, and c) interested in women’s sports (as I am), you probably took note of the White House’s commemoration of the 37th anniversary of Title IX on June 23rd.

However, lest we assume that 37 years of existence is equivalent to the eradication of sexism in education generally or sports in particular, Cokie Roberts and Steven V. Roberts turn our attention back to the issue of enforcement.

In a recent column entitled, "Title IX a start, but women athletes still seek level playing field" Roberts & Roberts write:

But girls need something more than the encouragement of exemplary women — they need the enforcement of the laws. That’s why a White House birthday celebration for Title IX matters. But it’s only a beginning. Valerie Jarrett, chairman of the president’s Council on Women and Girls, vowed to review every federal program affecting sex disparities with the promise that "we’re not going to rest on our laurels until there is absolute equality." That’s a tall order, worth studying as anniversaries of other civil-rights bills occur.

As scholars continue to study Title IX, it will be interesting to keep track of the previously withheld documents released from the Nixon archives. A friend of mine brought one such document to my attention that speaks directly to the challenges of achieving full gender equity sports via Title IX.

Memo on Title IX and Sports

In a May 31, 1974 memo responding to concerns about "the potential effects of these regulations on intercollegiate athletics", particularly concerns raised by the NCAA and Senator John Tower that Title IX would harm "revenue-producing sports". The memo came 11 days after Senator Tower’s proposed amendment exempting "revenue producing sports" from Title IX regulations was rejected.

Ken Cole, a Nixon staff member, describes a proposed regulation for Title IX to clear up this controversy (link to library here, pdf here):

Finally, and most significantly, the proposed regulation states expressly that, "Nothing in this section shall be interpreted to require equal aggregate expenditures or athletics for members of each sex."

While HEW's [Department of Health and Education Welfare] treatment of athletics in the proposed Title IX regulation is designed to minimize the impact of the statute on competitive intercollegiate athletics it should be recognized that the mere fact that the statute covers athletics will increase pressures on competitive collegiate athletic programs to broaden athletic opportunities for females.
The complete set of regulations did not go into effect until 1979 and included the now famous "three-prong test". However, it would seem that this proposed regulation from the Nixon administration took the teeth out of Title IX to some extent.

Granted, there is an argument to be made for major "revenue producing sports" like men’s basketball or men’s football to be funded in proportion to the money they bring into the school. Furthermore, consistent with the final HEW Policy Interpretation, differentials in expenditures neither prove nor disprove discrimination – an institution could conceivably fund men’s and women’s sports equitably but still engage in discriminatory practices in terms of how funding is allocated.

Nevertheless, what is alarming about this particular memo is the intent to deliberately "minimize the impact" of Title IX. The concern here was clearly not the welfare of female athletes, but protecting the male athletes, which seems to contradict the spirit of the legislation. That it was withheld has to raise an eyebrow as well...

Further weakening of Title IX

And it’s worth noting that Nixon’s was not the last attempt to undermine Title IX. Further weakening of Title IX occurred during the Bush administration, as described by the National Organization for Women:
On March 18, the Department of Education (DOE) released an "Additional Clarification" that greatly weakens Title IX. Under the law, federally-funded schools must provide equal educational opportunities to female students, including equal opportunities to play sports. The education department's regulations give schools a "safe harbor," allowing a school to be deemed in compliance with Title IX if it meets any one part of a three-part test. With the DOE's new policy guidance, schools will now find it much easier to comply, while at the same time restricting athletic opportunities for young women.

The new guidance allows schools to show compliance with part three of the test—i.e., that they are "fully and effectively accommodating the interest and abilities of the underrepresented sex"—if they can provide evidence that their female students just aren't that interested in sports. Under the new guidance, this can be demonstrated through email surveys of female students. The result is that it will now fall to female students to show that: 1) there exists interest sufficient to sustain a female varsity team at a school, 2) female students have sufficient athletic ability to sustain an intercollegiate team, and 3) within the school's normal competitive region, there exists a reasonable expectation of intercollegiate competition.
This is not to say that Nixon’s initial weakening of Title IX is the correct point of attack 37 years later – adding an explicit funding prong would clearly present institutions with a number of challenges and may result in more "gaming of the system" rather than less discrimination.

But it does make you wonder: What would Title IX look like if it provided guidelines for equal– or even equitable – funding? Would a three-prong test that included a concrete standard such as funding equity in addition to more tenuous standards like participation, opportunity, and interest be much stronger?

One major organization that claims to advocate for equal funding for women’s sports is the National Organization for Girls and Women in Sports, but it’s not clear exactly how they advocate an enforceable implementation of that vision.

The Nixon memo should certainly not come as a revelation, but it does provide some insight into how we’ve gotten to this current place with Title IX legislation. It’s a reminder that the struggle against sexism in sports still faces significant challenges at all levels and that these challenges are the result of deliberate action on the part of high-level officials.

In response to the recent announcement of the All England Club to take physical appearance of women into consideration when creating court schedules for Center Court matches at Wimbledon, Dave Zirin of the Nation wrote the following, which seems like an appropriate way to end this little exploration:
We like to think that women's sports can be a avenue for liberation--a place where young girls can sweat, frolic, compete, get healthy and have the safe space to do anything but have to feel "ladylike." I can't help but remember the words of Martina Navratilova who complimented the great Billie Jean King by saying she "embodied the crusader fighting a battle for all of us. She was carrying the flag; it was all right to be a jock." It's long past time for a new generation of women athletes, coaches and sportswriters to grab the flag and say that having a zero-tolerance policy for sexism is at heart about asserting the humanity of each and every participant.

Related Links:

Title IX: A Picture of Dorianna Gray? (A critique of Title IX)
http://www.deepintosports.com/2009/07/07/title-ix-no-gender-equality-women-sports/#idc-container

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