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Regulating Opportunity: Title IX and the Birth of Gender-Conscious Higher Education Policy

  • Deondra Rose (a1)
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1. The National Center for Education Statistics (NCES, 2012), http://nces.ed.gov/.

2. Scholars have recognized the emergence of feminism and increasingly egalitarian attitudes toward women’s participation in the private sphere as contributing to increasing higher educational attainment among women. Significant demographic shifts have also helped to prolong the amount of time that women can devote to higher education. Since the mid-twentieth century, the nation has seen an increase in the average age of first marriage, a decline in fertility rates, and increasing divorce rates. Additionally, the availability of oral contraception has given women increased control over reproductive decisions. Economic changes have also contributed to the trend of women’s prolonged participation in formal education. As the United States has transitioned from an industrial economy to a service economy, a growing number of clerical and other pink-collar positions have yielded expanded occupational opportunities for women and, as a result, greater incentives for women to invest in postsecondary education. See Goldin, Claudia, “The Quiet Revolution That Transformed Women’s Employment, Education, and Family,” American Economic Review: Papers and Proceedings 96, no. 2 (2006): 121; Claudia Goldin and Lawrence F. Katz, The Race Between Education and Technology (Cambridge, Mass., 2008); Goldin, Claudia and Katz, Lawrence F., “The Power of the Pill: Oral Contraceptives and Women’s Career and Marriage Decisions,” Journal of Political Economy 110, no. 4 (2002): 730–70.

3. Although the beneficiaries of the G.I. Bill’s education provisions were overwhelmingly male, the program’s gender-neutral construction set the standard for subsequently enacted student aid programs. While some might question the gender-neutrality of the G.I. Bill on the grounds that benefits were allocated on the basis of military service during an era of military conscription for men, it is important to note that the statute makes no distinction between beneficiaries on the basis of sex. Under the statute, both male and female veterans were eligible to receive the program’s generous education benefits.

4. As Charles E. Lindblom notes, incremental policy change is characterized by modest adjustments to existing policies. This differs from what Frank R. Baumgartner and Bryan D. Jones describe as “short bursts of dramatic change” that significantly reform or otherwise alter public policy. See Lindblom, Charles E., “The Science of ‘Muddling Through,’Public Administration Review 19, no. 2 (1959): 7988; Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics (Chicago, 1993).

5. Scholars have devoted a great deal of attention to examining the effects that Title IX has had for gender equality in athletics. In their analysis of Title IX’s effectiveness for promoting gender equality, for example, political scientist Eileen McDonagh and journalist Laura Pappano argue that, by constructing requirements for equal access to athletic opportunities around the assumption that women and girls should play on separate teams from men and boys, Title IX perpetuates the notion that women and men are not equal. Beyond examining the relationship between Title IX and gender equity in athletics, legal scholars have recognized Title IX’s significance for promoting women’s civil rights. See Eileen McDonagh and Laura Pappano, Playing with the Boys (New York, 2008); see also Linda Jean Carpenter and R. Vivian Acosta, “Women in Intercollegiate Sport: A Longitudinal Study Thirty-Three Year Update, 1977–1910,” http://acostacarpenter.org; Edwards, Amanda Ross (2010), “Why Sport? The Development of Sport as a Policy Issue in Title IX of the Education Amendments of 1972,” Journal of Policy History 22, no. 3(2010): 300336.

6. Federal higher education policy has traditionally revolved around financial aid in the form of student loan, grant, and work-study provisions intended to remove financial need as a barrier to college education. In 1933, as a part of President Franklin D. Roosevelt’s New Deal initiative, lawmakers passed the National Youth Administration (NYA) work-study program, which provided male and female college students with jobs offering modest wages to offset college costs. In 1944, lawmakers passed the Servicemen’s Readjustment Act of 1944 (commonly known as the “G.I. Bill”), which provided valuable funds to World War II veterans that covered full college tuition, fees, and many living expenses. While the G.I. Bill provided considerable financial aid to veterans, it did little to expand access to higher education for American women because eligible beneficiaries were overwhelmingly male. In 1958, lawmakers offered need-based federal student loans broadly to women as well as men under the National Defense Education Act (NDEA). Seven years later, they created need-based grants and offered additional student loans under the Higher Education Act (HEA) of 1965.

7. Although women represented a majority of the U.S. population and more than half of registered voters in 1972, they held fewer than 3 percent of seats in the House of Representatives (11 of 435 seats), and Margaret Chase Smith was the sole woman serving among the one hundred U.S. senators. Moreover, women comprised one-third of the labor force but were paid, on average, $3 for every $5 earned by their male counterparts. In terms of mass political engagement, women voted at lower rates than men, and they were less likely to engage in activities such as contributing money to political campaigns and contacting elected officials. See Nancy Burns, Kay Lehman Schlozman, and Sidney Verba, The Private Roots of Public Action: Gender, Equality, and Political Participation (Cambridge, Mass., 2001); the Center for American Women and Politics (CAWP) 2014, http://www.cawp.rutgers.edu; Congressional Quarterly Weekly Report (Washington, D.C., 1972), 597.

8. Baumgartner and Jones, Agendas and Instability in American Politics, 42.

9. Quoted from a statement made during the 1970 congressional hearings on discrimination against women. See Catherine R. Stimpson, ed., Discrimination Against Women: Congressional Hearings on Equal Rights in Education and Employment (New York, 1973), 131.

10. Katherine Hanson, Vivian Guilfoy, and Sarita Pillai, More Than Title IX: How Equity in Education Has Shaped the Nation (Lanham, Md., 2009), xvi; Flora Davis, Moving the Mountain: The Women’s Movement in America Since 1960 (New York, 1991), 207; Rosalind Rosenberg, “The Limits of Access: The History of Coeducation in America,” in Women and Higher Education in American History: Essays from the Mount Holyoke College Sesquicentennial Symposia, ed. John Mack Faragher and Florence Howe (New York, 1988), 116; M. Elizabeth Tidball, Daryl G. Smith, Charles S. Tidball, and Lisa E. Wolf-Wendel, Taking Women Seriously: Lessons and Legacies for Educating the Majority (Phoenix, 1999), 11–13.

11. Gender discrimination was not limited to students: those who were hired into college faculty positions earned less money than their male counterparts and were less likely to be promoted. See Stimpson, ed., Discrimination Against Women, 47.

12. Hanson, Guilfoy, and Pillai, More Than Title IX, xvi.

13. Davis, Moving the Mountain, 212; Karen Blumenthal, Let Me Play: The Story of Title IX, the Law That Changed the Future of Girls in America (New York, 2005).

14. Bernice Sandler, interview by author, tape recording, 23 March 2011.

15. Ibid.

16. The situation at Columbia University exemplified the disdain that many institutions held for this type of federal oversight. Administrators at Columbia flatly refused to submit a proposal for improving sex discrimination in hiring and employment on campus, and they also refused to provide the Office of Civil Rights with institutional data on women and minorities. As a result, the government withheld all federal grants from Columbia from November 1971 until March of the following year. See Congressional Quarterly Weekly Report, 1972, 599.

17. Bernice Sandler, interview by author, 23 March 2011.

18. After achieving an exemplary record as a student in Oregon, Green hoped to pursue a career in law. However, because a legal career would have been incongruous with accepted gender norms of the day, Green’s family and academic advisers urged her to pursue a more gender-appropriate profession: teaching. Although Green distinguished herself as a first-rate educator, she forever regretted relinquishing her dreams of becoming a lawyer. See Cynthia E. Harrison’s Oral History interview with former congresswoman Edith S. Green, 18 December 1978.

19. Cynthia E. Harrison’s Oral History interview with former congresswoman Edith S. Green, 18 December 1978.

20. Senator Birch Bayh, interview by author, tape recording, 1 March 2011.

21. Margaret Dunkle, interview by author, tape recording, 5 January 2012.

22. Congressional Quarterly Weekly Report, 1972, 597.

23. Margaret Dunkle, interview by author, 5 January 2012.

24. Ibid.

25. Hanson, Guilfoy, and Pillai, More Than Title IX, 8.

26. The Fourteenth Amendment of the U.S. Constitution also failed to ensure that women received equal treatment by higher educational institutions. As Representative Martha Griffiths noted in advocating for the Equal Rights Amendment (ERA), the Supreme Court had never recognized women as a class that is entitled to equal protection of the law as provided under the Fourteenth Amendment. See Greendorfer, Susan L., “Title IX Gender Equality, Backlash, and Ideology,” Women in Sport and Physical Activity Journal 7 (1998): 69; Congressional Quarterly Weekly Report, 1972, 597.

27. Margaret Dunkle, interview by author, 5 January 2012.

28. Ibid.

29. Blumenthal, Let Me Play, 47. The ERA had been introduced in Congress every year since 1923, repeatedly failing to garner enough support to amend the Constitution. See Congressional Quarterly Weekly Report, 1972, 2590.

30. Green’s hearings on sex discrimination coincided with the House Education and Labor Committee’s consideration of Section 805, her proposal to amend Title VI of the Civil Rights Act (H.R. 16098) to include a prohibition against sex discrimination in federally funded programs. See Congressional Record 1997, H4217.

31. Stimpson, ed., Discrimination Against Women, xiii.

32. Andrew Fishel and Janice Pottker, National Politics and Sex Discrimination in Education (Lexington, Mass., 1977), 96; Bernice Sandler, interview by author, 23 March 2011.

33. Stimpson, ed., Discrimination Against Women, 23.

34. Ibid., 62.

35. Ibid., 165; see also Bernice Sandler, interview by author, 23 March 2011.

36. Congressional Record, 1971, 30156.

37. Blumenthal, Let Me Play, 31.

38. U.S. Department of Education, “Title IX: 25 Years of Progress,” 3.

39. Bernice Sandler, interview by author, 23 March 2011.

40. Title VI of the Civil Rights Act denied federal financial assistance to programs and activities that engaged in discrimination on the basis of race, nationality, or religion. See John D. Skrentny, The Minority Rights Revolution (Cambridge, Mass., 2002), 231.

41. Congressional Quarterly Weekly Report, 1970, 2055.

42. Ibid., 1700.

43. Joseph A. Califano, Governing America: An Insider’s Report from the White House and the Cabinet (New York, 1981), 263; Congressional Record, 1971, 30156.

44. Congressional Quarterly Weekly Report, 1971, 483.

45. Ibid.

46. Ibid., 484.

47. Senator Birch Bayh, interview by author, 1 March 2011.

48. Margaret Dunkle, interview by author, 5 January 2012.

49. Hanson, Guilfoy, and Pillai, More Than Title IX, 8; Matthews and McCune, Why Title IX?; McDonagh and Pappano, Playing with the Boys, 101–2; Skrentny, The Minority Rights Revolution, 231.

50. Rosemary Salomone, “The Legality of Single-Sex Education in the United States: Sometimes ‘Equal’ Means ‘Different,’” in Gender in Policy and Practice: Perspectives on Single-Sex and Coeducational Schooling, ed. Amanda Datnow and Lea Hubbard (New York, 2002); Imram Valentin, “Title IX: A Brief History.” Report (Washington, D.C., 1997); Ana M. Martinez and Kristen A. Penn, eds., Women in Higher Education: An Encyclopedia (Santa Barbara), 239–41; Fishel, Andrew, “Organizational Positions on Title IX: Conflicting Perspectives on Sex Discrimination in Education,” Journal of Higher Education 47 (1976): 102; Janet M. Martin, The Presidency and Women: Promise, Performance, and Illusion (College Station, Tex., 2003).

51. Margaret Dunkle, interview by author, 5 January 2012. See also Jean C. Robinson, Barbara Barnhouse Walters, and Julia Lamber, “Title IX in the 1970s: From Stealth Politics to Political Negotiation,” paper presented at the Annual Meeting of the Midwestern Political Science Association, Chicago, 5 April 2008); Blumenthal, Let Me Play, 35; Hanson, Guilfoy, and Pillai, More Than Title IX, 8–9; Bernice Sandler, interview by author, 23 March 2011; Skrentny, The Minority Rights Revolution, 247.

52. Margaret Dunkle, interview by author, 5 January 2012.

53. Bernice Sandler, interview by author, 23 March 2011.

54. Given the importance of Title IX for promoting gender equality in higher education, it comes as little surprise that fabled accounts of the program’s development have emerged in the wake of its passage. However, claims of fierce advocacy for the program at its birth are merely tall tales. As Margaret Dunkle notes, “There was just a handful of people who were [working on behalf of Title IX]. It’s kind of like people who say they were at Woodstock.” In actuality, “nobody marched for Title IX,” says Dunkle. “It just wasn’t done because it was under the radar.” Margaret Dunkle, interview by author, 5 January 2012. See also Kristin Goss, The Paradox of Gender Equality: How American Women’s Groups Gained and Lost Their Public Voice (Ann Arbor, 2013), 55–58.

55. Margaret Dunkle, interview by author, 5 January 2012.

56. Robinson, Walters, and Lamber, “Title IX in the 1970s.”

57. Ibid.

58. U.S. House, Committee on Education and Labor, 1971, 367.

59. Ibid., H39252.

60. U.S. House, 1971, 273–78.

61. Congressional Record, 1971, 39252.

62. U.S. House, 1971, H38639; H39248.

63. U.S. House, 1971, 1078.

64. Hanson, Guilfoy, and Pillai, More Than Title IX, 9.

65. U.S. House, Higher Education Act of 1971, 92nd Cong., 1st sess., H.R. 7248; Congressional Record, 1971, H3249.

66. U.S. House, 1971, H39248-39249.

67. Congressional Record, 1971, 39248.

Representative Green expressed exasperation regarding the irony of Hesburgh’s support for Erlenborn’s exemption: “How a person as Chairman of the Civil Rights Commission of the United States can make eloquent statements about having to end discrimination in this country and then say it is perfectly all right to continue the discrimination against over 50 percent of the people in the country I do not know.” See Congressional Record, 1971, 39250.

68. U.S. House, 1971, H39261; Fishel and Pottker, National Politics and Sex Discrimination in Education, 101.

69. Congressional Record, 1971, 30155.

Unlike Title IX’s trajectory in the House, Bayh’s amendment was not considered during Senate subcommittee deliberations. As senators considered the proposed higher education reauthorization bill in the Education Subcommittee of the Labor and Public Welfare Committee, busing emerged as the most contentious education issue. Busing became a part of the debate over higher education when a desegregation assistance package was added to the higher education aid proposals under consideration, and controversy surrounding the proposal significantly slowed Senate action on the bill. See Fishel and Pottker, National Politics and Sex Discrimination in Education, 99–100; Congressional Quarterly Weekly Report, 1972, 2617.

70. Congressional Record, 1971, 30156.

71. A few months earlier, the U.S. House of Representatives passed the Equal Rights Amendment by a 354–23 roll-call vote, then the Senate passed it by a vote of 84–8. See Congressional Quarterly Weekly Report, 1971, 2590. If the statute had won support from three-quarters (or thirty-eight) of the states, it would have become the newest amendment to the U.S. Constitution. Although it failed to secure passage as a constitutional amendment, the passage of the ERA by the House and Senate demonstrated lawmakers’ recognition that Americans were generally opposed to overt gender discrimination, just as they had opposed overt racial discrimination in the 1960s.

72. Congressional Quarterly Weekly Report, 1971, 597.

73. Congressional Quarterly Weekly Report, 1972, 112. Considering the long-standing correlation between traditional views regarding acceptable gender roles and conservative ideology, this Republican president’s support for gender equality may seem surprising. However, it is important to note that members of the Republican Party had been among the early supporters of the Equal Rights Amendment. Opposing the protective labor laws that were championed by New Deal Democrats, Republicans in the late 1930s and early 1940s supported legislation that would entitle women to the same treatment as men under the law. Women’s reform groups and New Deal Democrats, in contrast, opposed a constitutional amendment that would institutionalize equal treatment for women and men, fearing that such an amendment would weaken labor laws that provided women with needed support. Democrats did not begin to express support for the Equal Rights Amendment until 1944. See Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, 1998), 207–8; see also Sarvasy, Wendy, “Beyond the Difference versus Equality Policy Debate: Postsuffrage Feminism, Citizenship, and the Quest for a Feminist Welfare State,” Signs 17 (1992): 3538.

74. The senators were particularly amused by this line of questioning, and at one point Dominick quipped, “If I may say so, I would have had much more fun playing college football if it had been integrated.” Blumenthal, Let Me Play, 44.

75. Ibid. Commenting on the idea of admitting women to military academies, General William Westmorland provided further evidence of contemporary views regarding appropriate social roles for women and men, saying, “Maybe you could find one woman in ten thousand who could lead in combat, but she would be a freak and we’re not running the military academy for freaks.” See Rick Atkison, The Long Gray Line: The American Journey of West Point’s Class of 1966 (New York, 1999), 408; see also Meena Bose, “Leadership Challenges in National Security,” in Rethinking Madam President: Are We Ready for a Woman in the White House?, ed. Lori Cox Han and Caroline Heldman (Boulder, Colo., 2007).

76. Skrentny, The Minority Rights Revolution, 247.

77. Senator Birch Bayh, interview by author, 1 March 2011.

78. Valerie M. Bonnette, interview by author, tape recording, 6 January 2012.

79. Bernice Sandler, interview by author, 23 March 2011.

80. U.S. House, 1971, H38639.

81. Thomas D. Snyder and Sally A. Dillow, Digest of Education Statistics, U.S. Department of Education, 2010, 297.

82. Fishel and Pottker, National Politics and Sex Discrimination in Education. Although the exemption of undergraduate programs at private institutions limited the reach of Title IX, it is important to note that the majority of American undergraduate students attended public institutions.

83. In the House, both parties were fairly similarly divided regarding support for the omnibus education bill: 129 Democrats supported the legislation, while 104 voted against it; and 89 Republicans voted for the bill, compared to 76 who did not. Among Democrats, those representing districts in the North were more likely to support the bill than those from the South. Among northern Democrats, 109 members supported the Education Amendments, and 44 members opposed it. For Democratic members from southern districts, 20 voted for the education bill, while 60 voted against it. Opponents of the legislation generally took issue with its treatment of the busing issue. Conservative opponents wanted the bill to include more forceful anti-busing measures, while liberal opponents felt that the bill’s language was too conciliatory on the issue of busing. See Congressional Quarterly Weekly Report, 1972), 1371; Califano, Governing America, 263; Congressional Quarterly Weekly Report, 1972, 2805–10.

84. McDonagh and Pappano, Playing with the Boys, 101.

85. “Access to Higher Education,” The MARGARET Fund of NWLC (2009). Available at http://www.titleix.info/10-Key-Areas-of-Title-IX/Access-to-Higher-Education.aspx; M. Margaret Conway, David W. Ahern, and Gertrude A. Stuernagel, Women and Public Policy: A Revolution in Progress, 3rd ed. (Washington, D.C., 2005), 23–24; Hanson, Guilfoy, and Pillai, More Than Title IX; Martinez and Penn, eds., Women in Higher Education.

86. U.S. Department of Education, “Title IX: 25 Years of Progress,” Report (1997), 3. Available at: http://www2.ed.gov/pubs/TitleIX/index.html.

87. Congressional Record, 23 June 1997, p. H4212.

88. Baumgartner and Jones, Agendas and Instability in American Politics, 54.

I would like to thank Alesha Doan, J. Celeste Lay, Suzanne Mettler, and the anonymous reviewers for the Journal of Policy History for valuable comments on previous drafts of this manuscript. I also thank Jaimie Bleck, David Nickerson, and members of the Political Science Department at Notre Dame for valuable suggestions.

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