They learned the hard way that even groundbreaking civil rights laws are not self-executing.Kelly Belanger. Invisible Seasons
Considering that an earthquake of legislation was enacted on June 23, 1972, you wouldn’t know it by looking at the newspaper archives. Title IX isn’t mentioned in the NY Times story on June 24, which references Nixon signing the “School Aid Bill.” The president’s major gripe about the bill is the lack of restriction on school busing. A tiny note towards the bottom mentions that colleges would lose funding if they discriminated against women in admission policies.
On that day, Kissinger was in talks with “Peking.” The Hurricane Agnes flood was devastating Pennsylvania. The president held a press conference on Domestic Matters, whose first question was about what the administration knew about the break-in at the Democratic Headquarters the previous week. Nixon said, “I know nothing.”
Looking back now, you’d think there was a switch flipped somehow (by Nixon) and voila! Megan Rapinoe and the WNBA burst like fireworks on to the scene. But that’s misleading. Title IX was a slow burn. People at the time didn’t see the fire kindled and, when they did, tried various endeavors to stamp it out. Those pushing for it were political animals, jockeying for position. No one thought about women playing sports. Some of the best ideas come as unintended consequences.
Why Title IX
The reasons for Title IX were experienced by women across multiple sides of education. Women faced uphill battles getting admitted to college and having professors take them seriously. Qualified women professors were fired or denied tenure and replaced with lesser qualified men.
The sports part at the time wasn’t a prominent part of the discussion. But women athletes were keenly aware of it. Donna de Varona is a great example. De Varona won two Olympic gold medals and held 18 World Titles. But post the 1964 Olympics, at age 17, there was no college swim program for her to attend; no scholarships; no competitions.
At the 1968 Olympics, teenager Mark Spitz didn’t fare that well. However, he received a scholarship to Indiana University, and the Hoosier swim team turned him into a juggernaut. His seven Gold medals at the 1972 Olympics became the standard that everybody chased until “crazy arms” Phelps came along.
That’s why Title IX, including the sports side, was a glaring gap in fair treatment. But how exactly did all this come about?
The Congresswoman Who Kept Pushing
Step back a little, to 1964. The Civil Rights Act banned discrimination in employment and public accommodation, and a separate Title VI added in the same year covering federally funded public and private entities. None of it covered education, at any level. In 1967, groups like the National Organization of Women convinced President Johnson to add an executive order banning discrimination in hiring and employment related to federal contracts.
However, women professors and students were still facing uphill battles at colleges. This became the focus of Congressional hearings, run by Rep. Edith Green (ORE), head of the Education Committees. Patsy Mink, a Congresswoman from Hawaii, turned out to be one of the the leading proponents for congressional action.
Interestingly enough, Patsy Mink was running for president by 1972. While Shirley Chisholm made history as the first woman to run for the Democratic party, Mink was second and the first Asian-American woman. Pink was an anti-war candidate but hoped to use her efforts on the education bill to gain name recognition. It worked, though not at the time. She was out of the presidential race by mid-summer, having failed to gain traction as a nominee. But after Mink’s death in 2002, the legislation was renamed the Patsy T. Mink Equal Opportunity in Education Act.
The Senator Who Advocated for Change
Birch Bayh, Senator for Indiana, actually wrote the 37 words that became known as Title IX. Bayh himself had been a key contributor to the 1964 Civil Rights bill. As a curious historical side note, Bayh and Ted Kennedy were flying back from Washington late night on June 19, 1964. They had been delayed voting for the 1964 Act, which had been stalled by a Republican filibuster. As their Massachusetts’ flight descended in heavy fog, the small plane crashed. The pilot and an aide were killed, and Bayh went back into the wreckage to pull out Kennedy, who had been trapped. While Bayh and Kennedy would both collaborate and disagree for decades afterward on legislative goals, Kennedy said he would forever “give him a pass.”
In addition to championing Title IX, Bayh also made key contributions to several constitutional amendments as head of the Senate Amendment Committee. He was instrumental in passing the vote for 18-year-olds as well as the 25th Amendment, which detailed processes for transfer of power when the president is incapacitated.
Bayh was also known for his work on the Equal Rights Amendment, which ultimately passed Congress in March 1972. It was probably ahead of its time, however, as it could not muster the requisite number of states for passage. Bayh said later that he wasn’t prepared for the lies told about the bill’s results, particularly by lobbyists like Phyllis Schlafly.
As part of the crowded presidential field in 1976, Bayh was a leader early on, based on his strong legislative record, especially for women’s issues. However, he lost to moderate Jimmy Carter, who famously ran a well-scripted campaign that focused on winning Iowa and New Hampshire as a way of eliminating opponents. Bayh ultimately lost his seat to Dan Quayle in 1980. He remained a strong advocate for women’s rights and other policies throughout his lifetime and ended up known as “The Father of Title IX.”
The President with Other Things on His Mind
To see the Nixon Foundation exhibits today, you’d think Nixon was leading the vanguard to promote equality in education–especially in sports.
Of course, Nixon had no clue–as did most of the proponents and opponents of the “Education bill” enacted on June 24, 1972–that the sports part would quickly become one of a controversial part. The President was cognizant of women’s issues. He had at least one woman on his staff, Barbara Franklin, who was giving him advice about courting “establishment” women voters. But his vote on the summer 1972 Education bill was primarily reluctant acquiescence to the funding provisions. He wanted more anti-busing provisions and nearly didn’t sign it because they weren’t strong enough.
The busing issue is an interesting precursor to what Title IX would face. Since Truman and Eisenhower, the government had come down firmly on the side of anti-discrimination of minorities. They were willing to stand up and say, “We shouldn’t rampantly discriminate against Blacks.” But when it came to what that meant, the picture became murky. School districts in the early 1970s were still highly segregated. The Supreme Court had ruled that one way to solve the problem was to bus students cross town to each other’s schools, a solution which no one liked. Opponents to integration could redefine the problem to being about kindergarteners sitting on buses for three hours a day. Opposition to “forced” busing became the issue rather than how to provide quality, integrated schools accessible to everyone. The devil was in the details.
Meanwhile, in June 1972, Nixon was focused primarily on getting re-elected. If the education bill helped him, if that non-discrimination stuff got past the “libbers,” great. He also was working on plans to bomb Cambodia and Laos, normalize relations with “Red China,” and squashing more questions about that Democratic Headquarters break-in. He had other things to think about.
Of course, Nixon (or his estate, if you will) wasn’t the first president to oppose and idea in concept but champion its outcome. Lincoln, the Great Emancipator, was also the Reluctant Emancipator; the Emancipation Proclamation was pressed forward primarily by the abolition wing of his party. Or, in recent decades, Bush Sr. touted signing the Americans with Disabilities Act, while the reality is that he and his party fought it tooth and nail.
The Sausage-Making Begins
Still, Title IX passed, so now what? As many of the retrospectives over Title IX will tell you, such as this one, nothing occurred when the act actually passed in 1972. The “37 simple little words” that Bayh and Mink had hammered out were probably too simple in concept.
Two things happened fairly quickly afterward. In 1975, Republican Senator John Tower introduced an amendment to exempt any college sports that brought in money to the school. In other words, he tried to exempt football and basketball, which were (and still are) sucking up most of college’s sports budgets. This was one of the first hints that the parts about non-discrimination in admissions or hiring for Title IX weren’t going to be the ones making all the ruckus.
The Tower amendment failed, but other clarifications were put forth. The Javits amendment of 1976 said that the nature of “particular sports” could be taken into consideration. Whatever that meant, it sounded like wiggle room. Moreover, the Department of Education was put in charge of actually defining what counted as discrimination. Implementation language in the late 1970s exempted “contact sports: boxing, “wrestling, rugby, ice hockey, football, basketball, and other sports…”
Lawsuits sprung up, some settled by the schools, but others pressed by the colleges up to the Supreme Court. Funding women’s sports would have been cheaper than lawyers, but it was the principle of the thing. One Supreme Court decision established that Title IX didn’t have to apply to schools whose students received federal funding for something besides sports. Congress plugged that loophole. Another court case argued that men’s groups suffered “reverse discrimination,” as men’s wrestling teams were axed, they said, to give money to women. Those cases were lost.
The Carter Administration created workable rules to help transition colleges into Title IX. The Reagan Administration undercut them, calling Title IX “the lesbian bill of rights,” with Attorney General Meese asking Education Secretary Bell whether his tie sported a “hammer and sickle.” The Clinton Education Department reinstated rules; the Bush Administration pulled them back.
Back and forth. As women made tiny inroads forward, seeing the possibility of real equality made them push harder. Women’s soccer got a huge boost. Schools realized that they could allow tons of new opportunities for women players with large squads and little equipment aside from a field. Women’s basketball, which had been a popular American (and worldwide) sport for women since its invention, had pent-up demand. Even women’s crew thrived for a time because of the large groups of women who could be accommodated.
For a time, women’s wrestling was nonexistent. The men’s wrestling teams, who sued and lost repeatedly, had no interest in sharing what was becoming a smaller budget. Logically, if a school decided not to touch the football or basketball budgets, the piddling funds for women’s sports were going to have to come from somewhere. Women’s wrestling lagged far behind other college sports, until wrestling was thrown out of the Olympics, in part because the Olympics were moving towards gender equity, and if the Americans weren’t going there in wrestling, then wrestling wasn’t going anywhere.
The U.S. team eventually realized that maybe their solution was to embrace women, to build popularity for the sport as a whole. As Kent Bailo, creator of a U.S. national high school girl’s tournament, said “…the answer to the survival for men’s wrestling is women’s wrestling…interest follows opportunity, not the other way around…”
After four decades of advances, slow and painful but worth applauding, the sports part is becoming a less controversial part of the act. Title IX under the Obama Administration began to address other aspects of inequities, especially related to sexual harassment. On the other hand, as more transgender athletes seek a way to compete, 50-year-old Title IX may be the path to break new ground. More controversy; more push and pull.
Supporting transgender athletes is not something that Nixon would have foreseen or supported. But, who knows? When transgender athletes are finally allowed to compete without Fox News losing its mind, maybe the Nixon Foundation will tout those stories on its wall of results, next to the pictures of happy basketball players.