Sex Discrimination Against Students: Implications of Title IX of the Education Amendments of 1972

DOCUMENT RESUME

ED 119 586 HE 007 327

AUTHOR Dunkle, Margaret C.; Sandler, Bernice TITLE Sex Discrimination Against Students: Implications of Title IX of the Education Amendments of 1972. INSTITUTION Association of American Colleges, Washington, D.C. Project on- the Status and Education of Women. SPONS AGENCY Carnegie Corp. of New York, N.Y.; Danforth Foundation, St. Louis, Mo.; EXXON Education Foundation, New York, N.Y. PUB DATE Nov 75 NOTE 33p.; For related documents, see HE 007 323, 325-328

EDRS PRICE MF-$0.83 HC-$2.06 Plus Postage DESCRIPTORS Academic Standards; Admission (School); Adult Education; *Affirmative Action; Athletics; Career Education; Child Care Centers; *College Students; Consortia; Cooperative Programs; Counseling; Curriculum; *Educational Legislation; Employment Opportunities; Facilities; Federal Aid; Federal Legislation; Health Services; *Higher Education; Recruitment; *Sex Discrimination; Student Financial Aid; Textbooks; Womens Studies IDENTIFIERS *Education Amendments 1972 Title IX

ABSTRACT Title IX of the Education Amendments of 1972 mandates that sex discrimination be eliminated in federally assisted education programs. Title IX has significant implications for a variety of issues including recruiting, admissions, financial aid, student rules and regulations, housing rules, health care and insurance benefits, student employment, textbooks and curriculum,, single-sex courses and women's studies programs. This document examines the overall implications of Title IX as well as the specific issues that affect virtually every school and college in the country. It attempti to provide insights into the scope and nature of practices that discriminate against students on the basisof sex, and the changes in these practices that might well be required for an institution to be in compliance with federal law. (Author/KE)

*********************************************************************** Documents acquired by ERIC include many informal unpublished * materials not available from other sources. ERIC makes every effort * * to obtain the best copy available. Nevertheless, items of marginal * * reproducibility are often encountered and this affects the quality * * of the microfiche and hardcopy reproductions ERIC makes available * * via the ERIC Document Reproduction Service (EDRS). EDRS is not * responsible for the quality of the original document. Reproductions * * supplied by EDRS are the best that can be made from the original. *********************************************************************** .173 co tn rI SEX DISCRIMINATION AGAINST STUDENTS:

Implications of TitleIX of the EducationAmendments of 1972

by Margaret C. Dunkie and BerniceSandler

The reproduction and distribution of this article and addendumwere made possible by a grant from The Ford Foundation. The original article(October 1974) is reprinted with the permission of the Center for Law and Education, HarvardUniver sity (Cambridge, Mass.). This paper may be reproduced in wholeor part without permission, provided credit is given to the Projecton the Status and Education of Women of the Association of American Colleges, The Ford Foundation, Inequality in Education of the Center for Law and Education, and the authors ofthe article.

U S. DEPARTMENT OF HEALTH, EDUCATION A WELFARE NATIONAL INSTITUTE OF EDUCATION THIS DOCUMENT HAS BEEN REPRO. DUCED EXACTLY AS RECEIVED FROM THE PERSON OR ORGANIZATION ORIGIN- ATING IT POINTS OF VIEW OR OPINIONS STATED DO NOT NECESSARILY REPRE SENT OFFICIAL NATIONAL INSTITUTE OF EDUCATION POSITION.OR POLICY

necauncathteird women

eAssociation of American Colleges 1818 R St., N.W. Washington, D.C.

2 Foreword

The following article originally appeared inthe October 1974 issue of Inequality in Education. The article was written in order to provideinstitutions with a broad framework for assessing their educational programs for sex bias. It isespecially relevant in light of the requirement of the Title IX regulation that every recipientof federal education funds conduct a self evaluation of its programs and activities in order toidentify sex discrimination. Since this article was originally published, there have beenseveral important developments concerning the application and enforcementof Title IX. A summary of these developments begins on page 25. Additionally, the authors have updated a number of thefootnotes in the main article as a result of the publication of thefinal Title IX regulation. These updated footnotes are marked with an asterisk. The Project on the Status and Education of Womenand the authors would like to thank The Ford Foundation for making available thefunds to reproduce and disseminate this article. Special thanks go to Mariam Chamberlain, programofficer for this grant, for her guidance and support.

Margaret C. Dunkle Bernice Sandler

November 1975

11 Contents

Foreword Sex Discrimination Against Students: Implicationsof Title IX of the Education Amendments of 1972 (October 1974)

Amendments to the Public Health Service Act Prohibiting SexDiscrimination 2 Title IX of the Education Amendments of 1972 2 Manifestations of Sex Discrimination 4 Recruiting Students 4 Admission to Programs 5 The Award of Financial Aid 9 Rules and Regulations 10 Housing Rules and Facilities 11 Requirements for Graduation 11 Physical Education and Equal Athletic Opportunities 12 Health Care and Insurance 13 Employment Opportunities 13 Appointment of Women to Commissions and Committees 14 Implications of Title IX for "Private" Groups whichDiscriminate on the Basis of Sex 14 Educational Consortia and Cooperative Programs 15 Extra-Curricular Activities 15 Textbooks and Curricula 15 The Counseling of Students 16 Single-Sex Courses and Programs 17 Vocational Education Programs 17 Women's Studies Programs and Courses 17 Women's Centers 18 Flexible Programs 18 Continuing Education Programs 18 Child Care Facilities 18 Footnotes (1-122) 18 Recent Developments Concerning Title IX (November 1975)

Statutory Amendment to Title IX: Exemption of the Membership Practicesof Certain Groups 25 The Final Title IX Regulation 25 The Proposed Consolidated Procedural Regulation 25 The Sports Memorandum 26 The Regulation for Titles VII & VIII of the Public Health ServiceAct 26 Footnotes (123 -145) 27

40, iii 4 SEX DISCRIMINATION AGAINST STUDENTS:. Implications of Title IX of the EducationAmendments of 1972

October 1974

by Margaret C. Dunkle and Bernice Sandler

Title IX of the Education Amendments of In these days, it is doubtful that any 19722 mandates that sex discrimination be elimi- child may reasonably be expected to nated in federally assisted education programs. succeedinlifeif . . . deniedthe There has been considerable speculation about opportunity of an education. Such an what changes willbe required of educational opportunity, wherethestatehas institutions to comply with Title IX. Although a undertaken to provideit,is a right few issues most notably competitive athletics) which must be made available to all on have generated wide interest, Title IX has signif- equal terms.3 icant implications for a variety of less publicized Inthepast twenty years it has become issues including recruiting, admissions, financial painfully clear that equal educational opportunity aid, student rules and regulations, housing rules, will become a reality only if it is supported by health care and insurance benefits, student em- strong and vigorously enforced federal legislation. ployment, textbooks and curriculum, singlesex The long and difficult history of the attempt to courses and women's studies programs. eliminatediscriminationon thebasisofrace Differential treatment of men and women promises to be repeated in the attempt to elimi exists in almost every segment and aspect of our nate discrimination on the basis of sex. society. Perhaps it is the most damaging, however, In many instances, the courts have been less whenitappears in andis transmitted by the willing to prohibit sex discrimination than race educationalinstitutions which are supposed to discrimination in educational institutions.4 They provide ,allcitizens with the tools to live in a have generally not interpreted the due process and democracy. As the U.S. Supreme Court said in the equalprotection guarantees of the Fifth and 1954 Brown decision: Fourteenth Amendments with the same strictness forsexdiscriminationas they haveforrace Margaret C. Dunkle is Associate Director with discrimination. Ratification of the Equal Rights the Project on the Status and Education of Women, Amendment would have the effect of eliminating the Association of American Colleges.Bernice thesedualstandards. Lackingconstitutional Sandler is Director of the same Project. The views remedies, statutory- prohibitions against sex dis expressed in this article do not necessarily reflect the crimination become especially important. views of the Association of American Colleges or the Carnegie Corporation of New York, the Danforth This article examines the overall implications Foundation or the Exxon Education Foundation, of Title IX as well as the specific issues which which fund the Project. affect virtually every school and college in the

1 country. It attempts to provide some insights into (HEW) is charged with enforcing the nondiscrimi- the scope and nature of practices which discrim- natory provisions of the PHSA. Noncompliance inate against students on the basis ofsex, and the with the requirements of this legislationmay lead changes in these practices which might wellbe to the delay of awards of PHSA Titles VII and required for an institution to be in compliance VIII funds, revocation of current awards or debar- withfederallaw. While discrimination against ment of an institution from eligibility for future females was the major reason for thepassage of awards. In general, the sex discrimination provisions of the PHSA are consistent with and fore- thelegislation,thelawcoversdiscrimination shadow the coverage and provisions of Title IX. against either women or menon the basis of sex. Until the fall of 1971, therewas no federal Title IX of the Education Amendments of 19728 legislation prohibiting sex discriminationamong students at any level of education. -Femalestu- Title IX of the Education Amendments of dents could be (and were) legally excluded from 1972 prohibits discrimination in federally assisted schools and colleges, admitted on a restrictive education programs'9 against students andem- quota basis, denied admission to certain classes ployees on the basis of sex.1° The key provision and subjected to a variety of otherdiscriminatory of Title IX reads: practices. Females had no legal recourse when No person in the United States shall, educational institutions denied them theopportu- on the basis of sex, be excluded from nity that was regarded as the "birthright" of their participation in, be denied the benefits brothers. of, or be subjected to discrimination underanyeducationprogramor Amendments to the Public Health Service activityreceivingFederalfinancial Act Prohibiting Sex Discrimination assistance...." In addition to the prohibition againstsex The first federal law prohibitingsex discrimi- discrimination in educational institutions, TitleIX nationamongstudents became effectiveon also amends a number of other laws. Section 906 November 18, 1971. Titles VII and VIIIof the amends various portions of the Civil Rights Act of Public Health Service Act (PHSA)were amended 196412 and the Fair Labor Standards Act of1938 to prohibit sex discrimination in admissionsto to include executive, professional and administra- federally funded health training programs. 5 There tive employees under the Equal Pay Act.13 Sec- are no exemptions from coverage. tion 904 forbids covered educational institutions Although the legislation itself speaks only of from denying an individual admission because of admission to programs, it appears that the final blindness or severely impaired vision.1 4 regulations will also cover treatment of students The sex discrimination provisons of Title IX already enrolled in programs andtreatment of are patterned after Title VI of the Civil Rights Act employees working directly with applicantsto or of 196415 which prohibits discrimination against students in such programs.6 This broadinterpreta- the beneficiaries of federal money on the basis of tion is supported by the legislative historyof the race, color and national origin, but not sex.16 amendments which indicates that Congress in- Both Title VI and Title IX are enforced by tendedtoprohibitdiscriminationamong the Office for Civil Rights of the.Department of individuals already enrolled inprograms as well as Health, Education and Welfare. The legal sanctions applicants.7 It also appears that an institution's for noncompliance are identical: ifan institution generaladmissionspolicies and practices are does not comply with the law, thegovernment covered in cases where the federally funded health may delay awards of money, revoke current training programs can be selected as a major after awards or debar institutions from eligibilityfor students are admitted. Otherwise, there wouldnot future awards. In addition, the Department of be a nondiscriminatory pool of applicants from Justice may also bring suit at HEW'srequest. which to select students. Any educational institution which receives The Office for Civil Rights (OCR) of the federal monies by way of a ggnt, loanor contract Department of Health, Education and Welfare (other than a contract of insuranceor guaranty) is

2 6 required to comply with the requirements of Title administratively exempting something from cover- IX.17 This includesall schools: kindergartens, age under Title IX (sex), while clearly coveringit preschools, elementary and secondary schools, under Title VI (race, color, national origin). Civil vocational schools, junior and community colleges, rights advocates are likely to view attempts to four-year colleges, universities and graduate and dilute Title IX coverage as an effort to dilute Title professional schools) 8 Private, as well as public, VI coverage. institutions are subject to the requirements of Individuals and organizations can challenge Title IX if they accept federal financial assistance. any practice or policy which they believediscrimi- There are two overall exemptions to Title IX nates on the basis of sex by writing a letter of coverage which Congress specifically stated in the complaint to the Secretary of Health, Education legislation:19 and Welfare. They can file on their own behalf or An institution controlled by a religious on behalf of someone else (or some othergroup). organization is exempt to the extent Complaints can be filed on a class action basis, thatthe applicationoftheanti- with or without specific aggrievedindividuals discrimination provisions is not con being named.21If the government finds discrimi- sistent with the religious tenets of the nation in violation of Title IX, the statute requires organization. Thus discrimination in thatitfirstattempt to resolve the problem such institutions on the basis of sex through informal conciliation and persuasion with for reasons of custom, convenience or the institution.22 If this process fails to remedy administrative rule is prohibited. This the discrimination, HEW may either hold formal exemption was originally included in hearings or refer the case to the Deparment of thelegislationtoexempt divinity Justice forjudicial action.If discriminationis schools. The burden of requesting and found following HEW hearings, federal financial justifying this exemption lies with the assistance can be terminated.23 educational institution. Title IX permits institutions to take affirma- A military schoolis exemptifits tive action even in the absence of proven discrim- primary purpose is to train individuals inationif,for one reason or another, there is for the military services of the United limitedparticipation by women or men in a States or the merchant marines.20 This federally assisted education program.24 There is exemption apparently applies to mili- distinction between affirmative action and non- tary schools at any level and the U.S. discrimination. Nondiscrimination means simply military academies. It does not apply altering practices which have been discriminatory when military training is tangential to (e.g.,ceasing to recruit only at male schools). the primary purpose of the institution. Affirmative action means taking steps to remedy a An example of a tangential relation- situation based on sex which was caused by past shipwould be offering Reserve discrimination either by the school or by society OfficersTrainingCorps (ROTC) atlarge(e.g.,sponsoring programs specifically courses. designed to attract female applicants). Inadditionto these general exemptions, Itis not clear to what extent affirmative there is an exemption for admissions to certain action can involve specific preferential treatment types of institutions, most notably private under- on the basis of race or sex. Where past dis- graduatecolleges and publicsingle-sexunder- crimination by an institution has been proven, it is graduate institutions. These exemptions are de- clear that the courts or enforcing agency can scribed infra at text accompanying notes 35-41. require an institution to give preference to remedy Any other exemptions made as a result of adminis- the discrimination. The government cannot, how- trative decisions by the Department of Health, ever, base such afinding solely on statistical Education, and Welfare are likely to come under evidence of an imbalance without a formal deter- strong criticism from both women's groups and mination that the imbalance represents discrimina- members of Congress. In addition, the parallel tion.25 However, the question of how to en- wording of Title IX and Title VI would indicate courage voluntary action for the benefit of one that there islittle,if any, legal justification for group consistent with the purpose of the anti-

3 7 discrimination legislation, but without proof of dents (since women are less likely than wrongdoingwhile at the same time, not discrim- equally qualified men to attend college inating against. members of other groupshag not at a young age) or granting preference finally been reiniiied.26 to varsity athletes(since there are generally far fewer opportunities for Manifestations of Sex Discrimination womentocompeteinvarsity athletics).Manypoliciesandpro- Many criteria, policies, practices and pro cedures which appear to be fair may cedures which have traditionally been accepted by unintentionally have a discriminatory educationalinstitutionsperpetuate sex dis- impact on one sex or the other be- crimination in both overt and subtle ways. In cause one sex has been discouraged general, discrimination falls into two categories: from participating in or discriminated Overt discrimination, which specifi- against in certain activities.It is con- cally excludes one sex or specifies ceivable that an institution might ar- different treatment or benefits based gue that using such criteria is not an on sex. Examples would be admissions act of discrimination on its part and quotas for women, different standards thatitisnot responsible for the of conduct for females and males and consequences of past discrimination or single-sex classes. In addition, evalua-, exclusion by others. ting the same characteristics or condi- A principle enunciatedina unanimous tions differently for women and men Supreme Court decisionis relevant to this dis- would fall into this category. Such cussion. In Griggs v. Duke Power Company,28 the decisions are oftenunconsciously Court said that any employment policy which has made because of stereotyped or inac- a disproportionate effect on minorities or other curate assumptions about the roles of protected classes (even though it is fair on its face) women and men. Although these as- and cannot be justified by business necessity, sumptions may be true for some constitutes discrimination barred by Title VII of women and men, they are not true for the 1964 Civil Rights Act. In addition, the Court all women and men. Making decisions said that it is the effect (rather than the intent) of based on such class stereotypes can a policy or procedure in operation that determines perpetuate discrimination.27For whether or not there has been discrimination. example, evaluating marital or parental While the Griggs decision occurred in connection status differently for each sex in de- with employment discrimination, the same prin- termining eligibility for financial aid ciple has been utilized by the courts in civil rights (because- married men are"bread- issues and can be expected to be applied tosex winners" and "need" more money discrimination in education. than married women) would fall into this category. A second subtle way in Recruiting Students29 which overt discrimination might man- ifest- itself is when sex-neutral policies Although the recruitment of studentsis and procedures are not implemented. generally not anissueat the elementary and That is, if, an institution had a non- secondarylevel,itis of increasing concern to discriminatory official policy, but in post-secondary institutions because the growing practicefollowed a discriminatory competition for qualified studentsis becoming policy, it would be violating Title IX. more intense. The recruiting process includes Discrimination as a result of criteria, information conveyed by written materials (bro- policies, procedures or practices which chures, catalogs, applications) and recruitersor appear to be fair, but which have a admissions personnel (through campus visits, inter- disproportionate impact on one sex or views and correspondence). This processcan dis- the other. An example would be prohi- criminate against women both overtly and subtly bitions against admitting older stu- if care is not taken to assure that it is unbiased.

4 8 The way in which an institution recruits factors subtly tella woman student if she is as students can have a significant impact on the welcome as her equally qualified brother. number of women who apply.30 Affirmative In addition to those listed below, the dis- recruiting to alter a pattern of limited partici- criminatory policies and practices listed through- pation by one sex or the other is legal under Title out this article can have a "chilling effect"by IX. Such affirmative recruiting makes the pool of significantly discouraging women from applying: qualified women applying more accurately reflect Having only or predominately male the potential pool of applicants and does not recruiters or admissions personnel. necessarily alter the way in which an institution Having pictures in publications which applies its criteria for admission. show students as mainly male, while' Sometimes recruitment policies or practices either not showing women at all or are overtly discriminatory. More often they are showing them primarily in "dating" or overtly benign, but-in one way or another have the social situations. effect of discouraging women from applying. Describing male sex-typed programs Policies and practices which fairly explicitly (such as engineering, physics, pre-med exclude women include: programs) in ways which discourage Recruiting only (or predominately) at male women from applying. institutions, or recruiting primarily at insti- Describing female sex-typed programs tutions which discriminate on the basis of (such as home economics, elementary sexintheir own admissions procedures, education,nursing)inways which without recruiting at institutions which do unnecessarily encourage women and not discriminate. discourage men from applying. For Relying heavily on alumni for recruiting example, describing students in these (rather than alumnae). This can have an programs as SHE implies that they are especially profound effect at formerly all- fields for women only. male schools which have admitted women Using the "generic" HE in catalogs and only recently. other publications. Application forms which ask married female Listing or having other policies (such students if they have their husband's per- as residency requirements or age cut- mission to attend school, while not asking offs) which might have a dispropor- the same question of married Male students. tionate impact on women. Similarly,askingboth sexesfortheir spouses' permission, but evaluating the re- Admission to Programs32 sponses differently for women and men The issue of sex discrimination in admissions would be discriminatory. Recruiters who discourage females from is primarily of importance to post-secondary institutions, although it also has relevance for elemen- pursuingtheirapplications, whilenot similarly discouraging comparable male ap- tary and secondary vocational or special academic schools.33 A thorough discussion of the admis- plicants. The more subtle manifestations of discrimi- sions decision is critical for several reasons. If an nation in recruiting have perhaps the most devas- individual is not admitted to an institution because tating effect on women. Oftentimes institutions of sex discrimination, equal treatment in the of and their representatives unconsciously perpetuate program becomes irrelevant. In addition, many discrimination intheir publications, application the considerations which affect the admissions materials and recruiting techniques. All of these decision are mirrored in later treatment of stu- items together givea prospective student the dents. An understanding of factors which might "flavor" of an institution and an indication of the influence the admissions decision aids in under- status of women oncampus.31 They can either standing the nature and operation of sex discrimi- encourage women to apply or have a"chilling nation against students already admitted to a effect" on the number of women applicants. Such program.34

5 9 Exemptions from Admissions Provisions of Title Evaluating marital status or potential 5 /x3 maritalstatus(whethersingle,di- Title IX specifically exempts certain types of vorced, married or separated) differ- institutions from nondiscriminatory admissions. ently for women and men. For ex- Largely because of pressure from parts of the ample, admitting married men, but not educational community, Congress exempted the married women. following institutions from nondiscriminatory ad- Making pre-admissioninquiries con missions:36 cerning whether a person is "Ms., Miss, Private undergraduate institutions. Mrs. or Mr." Preschools and elementary and second- Evaluating parental status differently ary schools (other than vocational for females and males. For example, schools).37 admitting unwed fathers (while not Singlesex public undergraduate insti- admitting unwed mothers) or admit tutions.39 ting men (but not women) with small These institutions are exempt from the admissions children. provisions of Title IX only.39 Theyare not Evaluating personality characteristics exempt from the obligation to treat students (and (such as "assertiveness") as a positive employees) in a nondiscriminatorymanner in all factorfor one sex(males) and a areas other than admissions. negative factor for the other sex (fe- Sex discrimination in admissions is specifi- males). cally prohibited in the following types of institu Using different standards for admitting tions: women and men because of assump- Public coeducational undergraduate in- tions about what are suitable and stitutions. propel fields for women (e.g., home Vocationalschools,including voca economics, nursing, elementary educa tional high schools. tion) and men (e.g., science, medicine, Professional schools." auto mechanics). Graduate schools:" Refusing to admit men, but not women, with long hair. Overt Discrimination in Admissions Admitting older men, but not older In covered institutions, overt quotas that women. limit the percentage or number of women (or men) violate Title IX. Similarly, an admissions Ostensibly Fair Criteria Policies, Practices and policy based on the number or percentage of Procedures Which Have a Discriminatory Impact applicants from each sex would violate Title IX. on One Sex For example, admitting 30 percent of female Many institutions believe that they have applicants and 30 percent of male applicants sexblind (or sexneutral) admissions criteria and would tie. admission to sex and could result in procedures. However, a close examination of these admitting members of one sex who were less ostensibly "neutral" criteria often reveals that a qualified than some of the students of the other number are sex biased. For example, an institution sex who were rejected. Also, ranking or evaluating might give preference to any "person" who has applicants separately on the basis of sex would be been a Rhodes scholar. (Since only men are a Title IX violation. eligible for Rhodes scholarships, this practice has a A more unconscious form of overt discrimi- discriminatory impact on women.) nation occurs when the same characteristics or Itis important to remember that many of conditions are evaluated differently for women the criteria evaluated by admissions officers and and men. For example, because of class assump- committees are not in themselves indicators of tions about the roles of women and men, a well performance in a given program or institution. intentioned admissions officer or counselor may Rather, they are shortcut indicators of success in discriminate on the basis of sex by: what is perceived to be a similar situation.

6 10 A distinction can be drawn between ultimate and not the person !n the abstract.'" (direct) and intermediate(indirect)criteriaor [emphasis added) qualities: There seems little doubt that this reasoning applies Ultimate criteria are those which are equally to similar discrimination against students essential to performing a task satisfac- in federally assisted education programs.4 5 torily.(For example, organizational Assuming that the ultimate criteria evaluated ability, writing skills, motivation, disci by a selection committee are rationally related to pline,creativity, researchability or the educational goals of the institution, it is then aptitude in a particular field.) Unfortu- imperative to examine the intermediate criteria to nately,however,thesecriteriaare determine if they are: often difficult or impossible to mea- valid indicators of the ultimate qual sure directly. ities desired; 'Intermediatecriteria,on the other free of sex bias (that is, not dispro- hand, are the shortcut approximate portionately excluding one sex or the indicators which are used to roughly other). gauge the ultimate criteria or ability of If an intermediate criterion is in some way sex a candidate. These are more easily biased, then the institution would be well advised evaluated than ultimate criteria and to look for alternative measures. For example, an might include offices held in school, institution might consider "competitiveness" a articles published, nature and extent desirable quality for students and use "participa- of work experience, grades and test tion in interscholastic or intercollegiate athletics" scores or attendance at a particular as an intermediate measure of competitiveness. school. Because athletic opportunities are severely limited Intermediate criteria are, of course, indispen- for women in most institutions, such an inter- sable aids to narrowing the field of candidates. mediate criterion might eliminate women who However, these criteria are by nature generaliza- have the desired ultimate quality (competitive- tions and as such may be both imprecise and ness). Because discrimination against women often arbitrary when used to measure the ability of a makesitmore difficultfor themto obtain givenindividual.Inaddition, because of sex impressive credentials (intermediate criteria), insti- discrimination in society at large, women who tutions may findthatitis sometimes more have the desired ultimate qualities may not have difficult to assess the degree to which women (as had the opportunity to obtain the most desirable opposed to men) possess the desired ultimate intermediate credentials. Therefore, blanket appli- qualities. As a beginning an institution could cation of ostensibly neutral criteria could result in broaden its list of acceptable intermediate criteria. sex discrimination. Examples of "intermediate criteria" which The Supreme Court has recognized, in Griggs might have the effect of disproportionately ex- v. Duke Power Company,42 that certain criteria cluding women include the following: can pose: Membership in a single-sex honorary artificial,arbitrary and unnecessary organization. (In some schools, there is barriers to employment when the bar- only a men's honorary.In others, riers operate invidiously to discrimi- where there are two separate singlesex nate on the basis of racial or other honoraries, the women's honorary is impermissible classification 43 often smaller and/or has higher admis- The Court found that: sions standards, with the result that Far from disparaging job qualifications fewer women than men have this as such, Congress has made such quali- credential.) fications the controlling factor, so that Similarly, using membership in single- race, religion, nationality, and sex be- sexprofessionalorganizationsas a come irrelevant. What Congress has criterion can lead to bias. (For exam- commanded isthat any tests used ple, until 1974 Phi Delta Kappa, the must measure the person for the job education honorary, did not admit

7 -11 women.)46 they might support a studenthusband Having received an award available to or raise children. In addition, women one sex only. (Itis not unusual for often have a more difficult time finan- theretobe fewer "female" than cing their education. At any given level "male" awards and scholarships given. of education, the majority of people The result of this pattern is that some who do not proceed to the next level female students do not receive awards are female. Consequently, the pool of while less qualified male students do.) qualified older applicants is likely to Having attended an institution which be disproportionately female.)48 discriminates (or which discriminated Using military service as a measure of a in the past) in admission on the basis broad background or good citizenship. of sex. (For example, giving preference (In addition to being exempt from the to individuals from specific private draft, the number of women in the undergraduate institutionswhich-can military has been limited by a strict maintain sexbased admissions quotas quota, and women admitted to the under Title IXis likely to have the armed services have to be more highly effect of disproportionately excluding qualified than men.) women.)47 Evaluating part-time or summer em Having received an athletic letter,a- ployment as a measure of interestand ward orscholarship.(The lack of accomplishment. (Because of the gen- athleticopportunitiesforwomen eral pattern of employment discrim- makes thiscriterion especially sus- ination, women are more likely to pect.) have had clerical and other so-called Giving preferenceto students who "feminine" jobs, rather than jobs that have held offices in clubs. (For exam- Might be indicative of their interestsor ple, in some schools the student body potential.) president is "always" male. An equally Evaluatingworkthatistypically qualified female student is most likely "male," such as military service, in a encouraged to run for secretary or vice favorable light, while evaluating work president.) thatistypically "female," such as Ability to attend school full-timeas a child rearing, in an unfavorable light. measureofcommitment. (Often Relying heavily on letters of recom- women with children or women who mendation to gauge such things as work findthat they are unable to commitment, abilityto work with attend school full-time, despite their others, etc." Such recommendations interest.) by counselors, teachers and employers Continuous schooling or employment may reinforce stereotyped attitudes of as a sign of commitment. (Although admissions personnel and introduce many women interrupt their education extraneous factors into the selection or careers for child rearing,thisis process. For example, a number of generally not an expression of lack of characterizations that are routinely interest or commitment.) used to describe female candidates Evaluating late commitment to a pro- ("charming,""delightful,""fem- fession or vocation as an indicator of inine," "pretty")are almost never lackofseriousnessordedication. used to describe male candidates and (Many women resume schooling or are,infact,unrelated to academic make a new career commitment at a ability. It is difficult to imagine the later age than their mate counterparts.) following "recommendation?' applied Not admitting "older" students. (Wo- to a man: men are more likely than men to "Joan is extremely attractive, but she discontinue their education so that does not let it get in the way of her

8 work." financialaid committees have auto- "Mary has one of the finest minds I've maticallyassumedthat a married ever seen in a woman." woman needs less assistance because "Because Sally Jones is somewhat un- her husband will support her, while a attractive, she is not likely to marry married man needs more assistance and waste her professional training." because he is the "head of the house- "Sarah isa delightful person whose hold." While this assumption may be good looks will adorn any depart- 'correct in some instances,itis cer- ment." tainly not correct in all instances.) Offering women and men with de- The Award of Financial Aid5° pendent children different amounts of aid because of sex-based assumptions The award of financial aid is often of prime about their child care responsibilities. importance at the post-secondary level." Indeed, There are also a number of ways in which aninstitution's decision to award (or not to overtlyneutralcriteria,policies or procedures award) financial aid to a student is often a major discriminateagainst women inthe award of factor in determining which institution a student financial aid. All of the "intermediate criteria" will attend. Because the award of financial aid also mentioned which might have the effect of dis- profoundlyaffects the treatment of students criminating against women in admissions (member. already enrolled in a program, the financial aid ship in single-sex honorary societies, continuous practices and policies of an institution are not schooling, etc.) can also have the effect of dis- exempt from the requirements of Title IX, even criminating against women in the award of finan- when the admissions policies are exempt. cial aid. In addition, policies or procedures which The data indicate that women often meet makeitdifficult(or impossible) for part-time discrimination in the amount and type of financial students to receive financial aid or which do not aid they receive.52 Discrimination in the award of consider the cost of child care in determining financial aid can be either overt or subtle (such as need, disproportionately affect women since many using ostensibly fair criteria which perpetuate sex more women than men find it necessary to attend bias). .school on a part-time basis and have primary child Some institutions now require women to care responsibilities. meet higher (or different) standards than men in There is some question concerning to what ordertobe eligibleforfinancial aid. Other extent single-sex fellowships will be allowed under institutions have favored men over women by: Title IX.53 Some people maintain that there Offering a woman a loan, while offer- should be no singlesex fellowships offered by or ing a comparably qualified and situa- through an educational institution. They maintain ted male a fellowship or assistantship. that there is no more justification for single -sex Offering the most prestigious scholar- scholarships than there is for scholarships limited ships, fellowships and assistantships to to whites. Others maintain that institutions should men while offering women the less be allowed to continue to offer single-sex scholar- prestigious awards. ships that are part of a trust, will or bequest if Also, a number of admissions committees they are "balanced" by an equal amount of money have traditionally evaluated the same character- for the opposite sex.54 Under this system, need istics differently depending on their sex. In ad- would be determined regardless of sex, but single- dition to the examples mentioned previously in sex scholarships could continue to be awarded, the discussion of admissions, the following might provided the amount of money individual students come under this category: received was not affected by their sex. A number Denying married women financial aid of people question whether such an option would (while not similarly denying such aid be administratively feasible. In addition they argue to married men) or offering married that much of the benefit of receiving such scholar- women and men financial aid on a ships is in the prestige connected with it, and that -'"1different basis. (At some institutions, such a system would perpetuate past discrimina- I 9 1 3 tion by allowing the most prestigious scholarships while girls are permitted to have either to continue to be for men only. A study of short or long hair). Women in Fellowship and Training Programs Dress codes which set different concluded that: standards for females and males (such Until women achieve a higher panic as policies which permit males, but not ipation rate in [fellowship, internship, females, to wear slacks).58 and other training) programs,many Different standards of punishment or qualified women will lack one of the different types of punishment based more important credentials necessary on sex (such as punishing females, but for career upward mobility. They will not males,whoswear,orusing always be less "qualified."55 corporal punishment on men only). Forbidding unmarried mothers (but Rules and Regulations56 not unmarried fathers) from participating in extracurricular There are a variety of rules, regulations and activities or athletic teams, or policies which differentiate on the basis of sex and debarring unwed mothers from eligibil- are almost certainly violations of Title IX. It is ity for awards or prizes." highly unlikely that the following types of rules Restricting the options or participa and regulations could be justified under TitleIX tion (in classes, extracurricular activ- for any reason: ities, etc.) of persons (female or male) Different curfews or visitation hours because of their actual or potential for women and men.57 marital status. Appearance codes which set different Requiring that the prom queen, home- standards based on sex (such asa coming queen, etc. be a virgin." requirement that boys have short hair, In addition, automatically assuming that the

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Photo by Roz Gerstein

10 14 residency of a woman is the same as her husband's institution may assign a smaller number of rooms can have an especially significant effect in state- to women, and then insist that all women live on supported institutions where the tuition is higher campus (although male students are allowed to live for out-of-state than for in-state residents.61 off campus). If the institution uses the lack of A number of institutions have rulesor dormitory spacefor women asa reason for regulations which might be Challenged under Title limiting their admission, it violates Title IX. IXif they have a disproportionate impact on Sex-based differences in housing options can women. For example: take a number of forms: Rigid time limits for completing pro- Allowing men, but not women, to live grams or degrees. off campus (or having different stand- Lack of opportunity to attend school ards, such as grade point averages, for on a part-time basis. (Because many women and men to live off campus). women have primary responsibility for Offering one sex or the other a dispro- child care, they are often unable to portionate share of the "most desir- ,attend on a full-time basis.) able" or most economical housing. On-campus residency requirements. Offering women and men differential Unavailability of leaves of absence for opportunities to live in housing which child rearing.62 permits drinking, the presence of pets, Policies which make itdifficult to etc. transfer credits from one program or Making dormitory suites, single rooms institution to another. (Women are or large rooms differentially available more likely than men to attend several to women and men. institutions because of their husbands' Providing different supportive services job changes.) (such as maid service, laundry facilities,recreation rooms, dining facilities, snack bars) to women and men. Housing Rules and Facilities63 Offering different options of residence hall governance based on sex. While this is not an issue at most elementary Offering different security provisions and secondary schools, the housing facilities and based on sex (such as guards, locks on the options available to men compared to women doors, etc.) are of importance at a number of postsecondary Offering different roommate selection institutions. procedures based on sex. Section 907 of Title IX specifically addresses Offering married students different one aspect of this issue: housing options based on sex. Notwithstanding anything to the con- Charging different housing fees based trary contained in this title, nothing on sex. contained herein shall be construed to Listing or otherwise perpetuating or prohibit any educationalinstitution endorsing housing which discriminates receiving funds under this Act, from on the basis of sex.66 maintaining separate livingfacilities for the different sexes.64 Although institutions are not required by Requirements for Graduation67 Title IX to "integrate" their dormitories, they are prohibited from discriminating on the basis of sex At present there are a surprising number of in the options they offer their female and male instances in which females and males are required students." to amass different credentials (or are able to amass Lack of dormitory space for one sex cannot the same credentials in different fashions) in order be used as a means of limiting the number of to graduate. These differences are especially pro- students of that sex who are admitted. Housing nounced in traditionally sex segregated physical rules have sometimes 'been used to deny women education, home economics or shop classes. Ex- admissionto an institution.For example, an amples of sexbased differentiation which no

11 15 doubt violate Title IX include: criteria and standards should be used to evaluate Requiring females to take homeecon- equal opportunity. In assessing whether it provides omics and requiring males to take shop equal opportunity, an institution might examine or industrial arts. (Often, women can; its non-competitive programs, competitive (inter- notsatisfytheirrequirementsby scholastic or intercollegiate) programs, and (since taking shop and men cannot satisfy physical education and athletic programs have their requirements by taking home traditionally been single-sex) employment patterns economics.) and administrative structures.71 Having more required (as opposed to In non-competitive and instructional pro- elective)coursesforfemales than grams, an institution might find bias in such areas males. (For example, requiring wompn as:72 to take a course in home economics, Instructional opportunities and- physi- with no similar requirement made of cal education classes:73 men.) Sex-based requirements for physical Requiring female and male students to education majors. have adifferenttotalnumber of Requirements for graduation. courses, credits or hours to graduate. Intramural programs. Having different required courses for Recreational opportunities.74 female and male physical education Discriminationincompetitiveprograms majorsorrequiring them to have might occur in:75 different grade point averages to grad- The funding of programs (including uate (or to graduate with honors). the Allowing men, but not women, to sourceof money, sizeof the budget and use of funds). exempt requiredphysical education The provision of facilities and equip- courses by taking askillstest or ment.76 participating in varsity athletics. The availability of medical and train Awarding academic credit to men, but ing services and facilities. not to women, who participatein Scheduling games and practice times. interscholastic or intercollegiate athletics. The availability of funds for travel and per diem allowances. Awarding athletic scholarships. Physical Education and Equal Athletic Opportunities" Recruiting athletes. Media coverage. The selection of sports and levels of Perhaps no issue concerning Title IX has competition. generated as much heated debate and controversy The female/male composition of the as equality in sports and athletics. And perhaps team (singlesex versus mixed or co nowhere elsearethe inequities as profound. educational teams).77 Although money is by no means the sole measure Some institutions have been reluctant to of equality, gross inequities in the total amount of change policies and practices mandated by athletic money spent on women's and men's sports can be conference or association rules, even though they used as a rough measure of discrimination. It is not have a discriminatory impact on women. Such unusual, for example, for the budget for men's regulations, however, do not alter the obligation of athletics to be a hundred (or even- a thousand) an institution to provide equal opportunity to times greater than the budget for women's ath- women and men under Title IX. For example, the letics.69 differential association or conference requirements Many complex and difficult legal and educa- for each sex concerning eligibility for financialaid tionalquestions are raisedinthe process of or for participation in intercollegiate sports do not attempting to discern what constitutes equality for absolve the institution from the obligation to treat women insports." There are a number of the sexes equally." unanswered questions concerning precisely what Although HEW is reluctant to identify abso

12 16 lute criteria for determining compliance in this Expelling pregnant students." area, _a number of Title IX complaintsalleging sex Requiring pregnant students to enroll discrimination in athletic opportunity have already in special classes_or to be tutored at been filed." In the absence of detailed standards home.84 for assessing athletic programs, HEW will no doubt Requiring pregnant students to leave resolve complaints on a case-by-case basis. school a certain number of months before childbirth or forbidding them from returning to school for a certain number of months after childbirth." Health Care and Insurance" Requiring pregnant students to have a doctor's certificate to either remain in Most institutions offer their students some or return to school, while not making sortof compulsoryor optional medical care similar requirements of students with and/or health insurance. These services and plans other physical disabilities. have come under considerable criticism, however, Requiring pregnant students to notify at a number of institutions for discriminating in the institution of the expected date of one way or another against women. The areas childbirth, without similarly requiring most frequently cited as discriminatory involve individuals with other temporary disa- pregnancy, gynecological care and family plan- bilities to notify the institution of the ning.81 In general, it is reasonable to expect the planned dates for surgery or absence, criteria for identifying discriminatory treatment of Treating pregnant students differently, these services and benefits among students to be depending on their marital status. for consistent with already .established criteria The inability or unwillingness of institu- making similar determinations among employees. tional health care facilities to provide gynecolo- Theprincipaloftreating pregnancy for gical services has become an issue on a number of jobrelated purposes in the same manner as any campuses. The absence or inadequacy ofthese other temporary physicaldisabilityisclearly services is likely to be raised under Title IX. stated in the employment area.82 In the past, The lack or inadequacy of family planning pregnant students -have often been treated dif- and contraceptive services has also been a concern ferently because of moral judgments about their of students at many institutions. Title IX would pregnancy, rather than because of concern for neither require that an institution provide such their health. services nor prohibit them from doing so, even if Differential treatment of pregnant students they were used byadifferent proportion of may take a number of forms. For example, the students of one sex than the other. If such services following types of insurance coverage treat preg- are provided, however, they cannot beoffered for nancy differently from other temporary disabili- one sex only. ties: Excluding pregnancy altogether. Providing more limitedcoverage of pregnancy than of other temporary Employment Opportunities86 disabilities. Covering pregnancy only for women Many institutions either offer their students who are married and/or who have some sort of employment or assist them in finding either a joint or "high option" policy. employment. Because of increased awareness of Similarly, policies which cover vasectomies, but bothTitleIX and employment legislation, a not sterilization for women, might be called into number of institutions now include a section on question under Title IX. student employment in their affirmative action In addition, the following rules and policies plan. concerning the treatment of pregnant students will Students employed by an educational insti- undoubtedly be challenged under Title IX because tution are protected by the same antidiscrimi- theytreatpregnancydifferentlyfrom other nationlegislation and regulations which cover physical disabilities: other employees: Executive Order. 14246, Title

13 17 VII of the Civil Rights Act of 1964 and the Equal called upon to appoint students to commissions, Pay Act of 1963. These laws prohibitany dif- committees or governing bodies of one sort or ferences onthebasisofsex(and,in most another. In the past, the bulk of these appoint- instances, on the basis of race, color, religion and ments (especially.the most prestigious or powerful nationalorigin aswell)inhiring,upgrading, appointments) have been given to males. Under salaries,fringe benefits,training and allother Title IX, institutions will have the obligation to conditions of employment.87 assure that these appointments are made on a Sex Was in student employment canman- nondiscriminatory basis and that women are given ifest itself in a number of ways. For example,at a a full and equal opportunity to participate in these coeducational ivy league university, a woman who capacities. applied for a job in the-university greenhousewas told that she could not be hired to work there because "girls kill the plants." In addition, the Implications of Title IX for "Private" following are among the practices which would Groups which Discriminate on the Basis violate these laws and regulations: of Sex99 Routinely assigning women students tosecretarialjobs and men to the Therehasbeenconsiderablediscussion (oftenhigherpaying)grounds and concerning the degree to which Title IX covers building crew. private organizations or groups which may operate Ilefusing to hire women students (or in or be assisted by educational institutions. For discouraging them from applying) for example,therehasbeen somedisagreement particular jobs.88 concerning the coverage of Little League teams, Student placement services which accept job honorary organizations, professional organizations, opportunities limited to one sex not only violate community recreation groups and social sororities Title IX, but other laws as well. However benign and fraternities. The legislative history of Title IX the intent, this breakdown virtually always limits provides little guidance concerning Congressional the job opportunities of women students. For intent in this area. Some people argue example, relativelylowpaying jobs (suchas that theregulations secretarial work and teaching)arelistedfor should bar any institution from assisting in any women, while the better jobs (such as engineering way any person or agency which discriminates on and middlemanagement positions) are listed for the 'basis of sex. The proponents of this point of view stress that this approach would be consistent men. Placement services (including student place- withthe ment services) are likely to be challenged under interpretationwithregardtoracial Title IX if they: discrimination under Title VI of the 1964 Civil Accept job offers limited to one sex Rights Act.91 They note that excluding females only. from such activities as Little League, professional 'Allow recruiters on campus who refuse organizations and honorary societies could cause to interview women or otherwise dis- real damage to women. They also point to the criminate against women. paradox of allowing a group which discriminated 'Allow employers -to recruit on campus on the basis of sex to use institutional facilities (or who routinely offer similarly qualified otherwise receive support from the institution), females and males different jobs or while denying the same privileges to a group,which salaries. discriminated on the basis of race 92 Refer only males to fields which are Others maintain that private groups which predominantly "male," while referring discriminate should not be covered at all by Title females to fields traditionally thought IX,sincein general they operate after school of as "feminine." hours. However, because these groups are covered under Title VI visa vis race discrimination, this Appointment of Women to Commissions argument is extremely weak. and Committees89 Still-others take the position that whetheror not a private group which discriminates on the Oftentimes administrators or teachers are basis of sex should be allowed to receive support

14 18 from an institution should depend on the substan activities are an integral part of the education tiality of the relationship between the institution program offered by an institution and, as such, are and the priyate group, the extent to which the subject to the nondiscriminatory provisions of group provides aid or services to the students and Title IX. An institution which sponsored, sup- employees of the institution, and the degree to ported or endorsed singlesex (or otherwise dis which the activities of the group are related to the criminatory)extra-curricular activities, clubs or institution's education programs or activities.93 programs would bevulnerabletocharges of This argument maintains that whether or not a discrimination under Title IX. group is covered should depend on how closely its activitiesarerelatedtotheactivitiesof the Textbooks and Curricula96 institution. Opponents of this position point out Textbooks from Dick and Jane to medical that it is in conflict with the precedents set Under school anatomy texts have come under fire for Title VI and that, if the government adopted this portraying women in a biased, stereotyped man- position,it would be bowing to pressure. More- ner. In a study of governmenttexts,97 Jennifer over,thisposition could lead toinconsistent Macleod and Sandra Silverman identify three ways situations.For example,itispossible that a in which these books perpetuate discrimination: discriminatory Little League team might be per- Women are rarely mentioned in the mitted to use college facilities, but be denied the texts. The authors of the study found similar use of elementary school facilities under that the Texts failed to discuss indi- this interpretation. vidual women, to quote women, to Although the Title IX regulations clarify the include a reasonablenumberof criteria for determining compliance in this area to womeninillustrations and to use some degree, a number of the specific complaints women's case histories as examples. brought because of discrimination in such organi- Illustrations and texts were often con- zations are likely to be resolved on a casebycase descending andperpetuatedstereo- basis. typed roles. The authors found numer- ous examples of undesirable stereo- Educational Consortia and Cooperative types concerning women and women's Programs9 4 roles.For example, women inthe texts were "often definedastheir A number of institutions either require or husbands' wives rather than as indi- permit students to participate in cooperative pro- viduals in their own right; sometimes grams oreducationalconsortia(for example, women (were) dehumanized as sex student teaching assignments or credit for work objects. "98 experience). The requirements of Title IX forbid Finally, the texts ignored much of the ding sex discrimination cover such cooperative subject matter dealing with women. efforts. That is, an educational institution cannot For example, they rarely mentioned assist another institution or organization in dis- famous women, women's suffrage or criminatingagainstitsstudents,evenifthat not covered by Title IX. The the women's movement. organizationis A number of studies of texts used at all institution bears the obligation to assure nondis levels draw similar conclusions.99 For example, crimination against its students, much as a federal the Association of Women in Science (AWIS) contractor must assure that its subcontractors not forced publishers Williams and Wilkins to recall discriminate under Executive Order 11246. If an The Anatomical Basis of Medical Practice because institution is not able to assure nondiscrimination of its portrayal of women. This text contained a against its students, it would appear that it must variety of passages that AWIS labeled discrimi- withdraw from the cooperative program or activ natory. For example: ities. If you think that once you have seen Extra-Curricular Activities95 the backside of one female, you have seen them all, then you haven't satin a There is little question that extra-curricular sidewalk cafe in Italy where girl watch-

119 ingis a cultivated art. Your authors, internal procedures and mechanisms for reviewing whose zeal in this regard never flags, materials and curricula103 They think that the refer you to Figures 111.50 and 53as government should require institutions to establish proof that female backs can keep an internalmechanisms both to ensure that their interest in anatomy alive. curricula do not reflect discrimination and to Thus the "little bit" of difference in a resolve complaints alleging sex discrimination in woman's built-in biology urges-her to the curricula. Advocates of this position maintain ensnare a man. Such is the curse of that, since it avoids havin2 the federal government estrogen) 00 itself determine what is discriminatory, the First Differential treatment of women and men is Amendment criticism mentioned earlier doesnot generally more easily identified in textbooksthan apply. in most other curricula materials. Similardiscrim- A thirdpositionis that the government ination, however, may occur in the classroom ina should administratively delay any decision on this variety of more subtle ways. For example,stu- issue indefinitely. The probable eventual result of dents at Western Michigan University have cited this tactic would be a suit by women'sgroups the following examples ofteacher comments against HEW for not enforcing the provisions of which discriminate against women: Title IX. This would leave the resolution of this A biology teacher during a class field issuein the hands of the courts, which many trip passed a junk car lot and said, people feel is a more appropriate vehicle for this "Well, there's women's biggest contri- decision than a government agency. Finally,some bution to the world." people argue that the government should overtly Another professor told a woman stu- refuse to address the issue at all, perhaps even dent, "Don't worry, with your body, inviting a "sweetheart suit" to resolve the issue in you'll get whatever you want." the courts.104 And still another professor made this Whatever strategy the government adopts, remark, "Now that there are perma- the issue of sex discrimination that is perpetuated press shirts, dishwashers and garbage by stereotyping in textbooks and curriculaprom- disposals,etc.,womenaren't ises to be both controversial and unavoidable in needed."101 the long run. A number of Title IX complaints in -Although there is little question that a wide this area have already been filed.105 variety of textbooks and curricula are inone way or another sex biased and perpetuate discrimination, it is not clear precisely what strategy HEW The Counseling of Students106 will adopt to remedy this discrimination. Some persons argue that HEW should take Whilethere islittlequestionthatitis immediate and direct steps to eliminate this sort of important for an institution to provide its students stereotyping. However, there is a strong reluctance with unbiased counseling, thereis considerable on the partof many government officials to disagreement concerning how this might most intervene in issues involving textbooks and curric- appropriately be accomplished. Sex bias in coun- ula. Both HEW and many educators fear that selingis perhaps even more difficult to identify strong enforcement in this area might jeopardize and rectify than bias in textbooksor curricula. the autonomy and academic freedom of local The arguments both for and against government education agencies and institutions. They believe intervention in counseling parallel those discussed that such programmatic decisions should be made in the preceeding section. Because of the subtle at the local, not the federal, level. In addition, they nature of discrimination in this area, the govern- feel that the statutory mandate to overcome ment is even less likely to intervene in counseling discrimination does not override the guarantees of programs thanintheareaof textbooks and free speech under the First Amendment.102 curricula. Others advocate the position that, although Although counseling programs alone cannot the government should not make such judgments take the blame orcredit for the career and directly,itshould require institutions to have personal choices students make, they typically

16 20 mirror the attitudes of theinstitution towards facilities (such as bathrooms, dressing rooms or women. Often sex biasis transmitted by well- locker rooms). While bathroom and locker room meaning counselors who pass on stereotypes about space may have to be reallocated or shared lay men and women. They may be unaware of the both sexes on an alternating basis (similar to the growing body of research which is shedding new arrangements in airplanes and trains), the lack of light on motivation and achievement in women. duplicate facilities cannot be used as a reason for Often counselors are trained only to work with the excluding one sex or the other. In any event, Title "traditional" student, a label which often does not IX does not require women and men to undress in apply to older women returning to complete their front ofone anotherortoshare the same education or women with child care and family bathroom at the same time.111 responsibilities)" Because of different interest patterns be- No matter what stand HEW takes on direct tween women and men, itislikely that some (or indirect) intervention to alleviate sex bias in classes will continue to be made up either entirely counseling, voluntary steps by schools would be or primarily of members of one sex. Women's consistent with both the spirit and letter of Title groups are urging institutions to assure that classes IX. For example, they might develop programs to or programs whichenrollprimarily men not train their counselors to be more sensitive to their receive preference over those which enrol! primer- own biases and those in the materials they use. ily women in such areas as facilities and equip- A similar issue is posed by bias in the tools ment, scheduling of classes or teacher competence. that counselors might use:interest inventories, Some women's groups arestressingthat catalogs, tests, occupational materials, etc. These institutions be on guard not to offer courses which instruments can perpetuate stereotypes which lim might have the effect of discriminating against it the options of women and men. For example, in women. For example,ifan institution offered 1972 the American Personnel and Guidance Asso- coaching instruction only for predominately male ciation passed a resolution calling for the revision sports, it might leave itself vulnerable to criticism of the widely-used Strong VocationalInterest and charges of illegality. Blank becauseitperpetuated discrimination a gainst women. Although the APGA focused on the Vocational Education Programs11 2 Strong, the pattern is consistent from one instru- ment to another)" Itis likely that advocacy Many of the vocational education programs groups will use the momentum for change gener- and courses in schools have been (and still are) sex ated by Title IX to encourage schools, colleges and segregated) 1 3 Tracking, as well as overt discrimi testing companies to reassess and revise counseling nation, will no doubt be strongly challenged under tools to assure that they do not perpetuate sex Title IX. Given that Tit:3 IX specifically prohibits bias. sex discrimination in admissions to all vocational schools, including vocational high schools, these programs will come under strong legal (as well as Single-Sex Courses and Programs109 moral) pressure to open their doors and programs to women and men on an equal basis. Indeed, A number of educational institutions at all because of both constitutional challenges and Title levels have one or more courses which are open to IX, a number of schools have already changed one sex only. For example, many high schools their policies and programs. offer home economics to females only and indus trial arts to males only. In almost all instances such Women's Studies Programs and Courses11 4 practices violate Title IX) 10 This prohibition has significancefor a varietyofcourses:health, Itis reasonable to expect the number of physical education, business, vocational, technical, women's studies courses and programs to increase industrial arts, home economics, music, as well as asthe pressforequalityfor female students continuing and adult education courses. increases. There are now more than 4000 such Often the argument used for refusing to coursesin existence and they will no doubt admit one sex or the other is the lack of duplicate continue to flourish.11 5 These programs are likely

17. '21 to be challenged under Title IX, however, ifthey a disproportionate impact on women. Because exclude men.1 16 fewer qualified women than men go to college or For avariety of reasons(includingthe graduate school, older women returning to college reticence of the government to intervene inmat- make up the largest single group of potentialnew ters involving curricula), HEW is not likely to students. Many institutions are finding thatone of mandatethataninstitution have a women's the easiest ways to increase their lagging enroll- studies program or women's studiescourses. How- ment without diluting academic standards is to ever, in the event that a Title IX complaint is filed, develop programs and services which facilitate the the government is likely to consider theexistence reentry of these women into academia. of a women's studies program (or courses)as a sign Although Title IX will probably not require of commitment to the education ofwomen or as an institution to provide such services, the govern- remedial or affirmative action.117 ment may look at the presence (or absence) in determining overall compliance with TitleIX. Women's Centers118 Again, although rrany of these programswere specifically designed to meet the needs ofwomen, A number of colleges and some high schools itis doubtful whether men could be excluded have "women's centers" of one sortor another from them under Title IX. In fact,a number of which provide, supplementary servicesfor the "Continuing. Education for Women" programs women in the institution.116 It is well within the already admit men. scope of Title IX to have a center focusing on women. However, under Title IX, it is not likely Child Care Facilities122 that a center could exclude men from using -its Although the trend is towards more equal services or participating in its activities. In general, sharing of work both in the home and in the labor this should not pose a threat to women'scenters, force, most women still bear the principalrespon- because the few men who would use the center are sibility for child rearing. Therefore, the lack of likely to be sympathetic to women's issues. child care facilities almost always affects female students (and employees) disproportionately. In Flexible Programs 120 assessing compliance with Title IX, HEW is likely to view the presence of such facilities as a positive Opportunities to pursue a degree in a "non- indication of the institution's concern forwomen. traditional" manner or at a "nontraditional"pace are often especially important to women. Most There are a number of unanswered questions college programs were originally designedto meet concerning the specific implications of Title IX of the needs of young males who had few, ifany, the Education Amendments of 1972. There isno home or parental responsibilities. Consequently, question, however, that educational institutions they are often not tailored to meet the needs of now have a clear and strong federal mandate to any of the so-called "nontraditional" students eliminate sex discrimination against students,as women, minorities, older students, etc. well as employees. For a variety of reasons (including academic

freedom and the First Amendment issues raised _ Footnotes earlier),itis doubtful that HEW would require that an institution, offer flexible programs. How- 1 The authors wishto express their appreciation to Jeffrey ever, if these programs are especially beneficial to H. Orleans, formerly an attorney withthe Department of Health, Education and Welfareand cur-" women, HEW is likely to regard their presence as a rently with -the Equal Employment OpportunityCom- positive factor in evaluating an institution'scom- mission, forhis helpful comments on drafts of the pliance with Title IX. manuscript. 2 Education Amendmentsof1972Sections 901-907,20 U.S.C. Sections 1681=86 (1972). Continuing Education Programs1 21 3 Brown v. Board of Educationof Topeka, 347 U.S. 483 (1954). The lack of opportunity for older students 4 In Sweatt v. Painter, 339 U.S. 629 (1950),the to attend school is a factor which is likelyto have Supreme Court unanimously ordered that blackstudents be admitted to the University of Texas Law School. In 9 Federal financial assistance includes, but is not Mc Laurinv. Oklahoma State Regents, 339 U.S. 637 limited to, a grant or loan of federal funds (including (1950), the Supreme Court unanimously ordered that the funds for construction or repair of buildings or facilities; black student-plaintiff "receive the same treatment at the scholarships, loans, grants, wages or other funds extended hands of the state as students of other races." Similarly, to an institutionfor payment to,or on behalf of, in Brown v. Board of Education ofTopeka, 347 U.S. 483 students; or scholarships, loans, grants, wages or other (1954), the Supreme Court found that "separateeduca- funds extended directly to a student for payment to an tional facilities(on the basis of race)are inherently institution); a grant of federal real or personal property, Unequal." In contrast, six years after the Brown decision, including surplus property; provision of the services of in Allred v. Heaton, 336 S.W. 2d 251 (Tex. Civ. App., federal personnel; or the sale or lease of federal property 1960), cert. denied, 364 U.S. 517 (1960), the Supreme at a nominal cost. Courtlet stand a lower court decision prohibiting a 10For an excellent section-by-section analysis of woman from being admitted to Texas A and M (then an Title IX and a suggested legal framework in which to all-male institution) to pursue a course of study which evaluate separate or different treatment of the sexes in was not offered at any other publicly supported institu- educationalactivities,see Alexandra Polyzoides Buek tion. Similarly, in Williams v. McNair, 316 F. Supp 134 and Jeffrey H. Orleans, "Sex DiscriminationA Bar to a (D.S.C. 1970) aff'd. mem., 401 U.S. 951 (1971), the Democratic Education: Overview ofTitle IX of the Supreme Court affirmed a lower court decision upholding Education Amendments of 1972," 6 Conn. L. Rev. 1 the right of a state to maintain a women's college. In (1973) [hereinafter cited as Buek and Orleans). Kirstein v. Rector & Visitors of the University of Virginia, 11 EducationAmendmentsof 1 972Section 309 F. Supp. 184 (E.D. Va. 1970), however, women were 901(a), 20 U.S.C. Section 1 681 (1972). granted admission to the previously all-male college of the 12Specifically, Title IV of the 1964 Civil Rights University of Virginia. For a general review, see Shaman, "College Admission Policies Based on Sex and the Equal Act was amended toinclude sexas a category of Protection Clause," 20 Buffalo L. Rev. 609 (1971). No discriminationinschoolassignmentindetermining cases involving sex discrimination against students in whether the U.S. Attorney General may bring action educational institutions in areas other than admissions upon receiving a complaint of discrimination involving have been heard by the Supreme Court. admission or continued attendance at a public institution. Title IX of the 1 964 Act was amended to include sex as a 5 Public Health Service Act, Section 799a and category of discrimination under which the Attorney Section 845, 42 U.S.C. Section 295h-9 and Section General may intervene in an action commenced in any 298b-2 (as added by the Comprehensive Health Man- federal court seeking relief from denial of equal protec- power Training and Nurse Training Acts of 1971). The tion of the laws. Act covers, but is not limited to, schools of medicine, osteopathy, dentistry, veterinary medicine, optometry, 13 Also, coverage under the Fair Labor Standards pharmacy, podiatry, public health, allied public health Act was extended to individuals employed in preschools personnel and nursing. In addition, regulations issued in and outside salespersons. June 19 72 (45 CFR Part 831 by the Secretary of Health, 14 As of July 1974, no regulations had been issued Education and Welfare specify that all entities (including to enforce this provision. hospitals) applying for awards under Titles VII and VIII 15 Civil Rights Act of 1964, 42 U.S.C. 2000d et Public Health Service Act are subject to the ofthe seq. (1964). nondiscrimination requirements. 16 (1) Certain schoolsare exempt from Title IX, 8 Draft regulations, proposed 45 CFR Part 83, can while there are no such exemptions under Title VI; (2) be found at 38 Fed. Reg. 26384.89 (September 20, 1973). Title VI has certain exemptions from its coverage of Final regulations, 45 CFR Part 83, can be found at 40 Fed. employment discrimination, while Title IX does not; (3) Reg. 28572-76. (July 7, 1975). Title IX isrestrictedtofederally assisted education 7 The legislative history of Sections 799a and 845 programs, while Title VI covers all federally assisted of the Public Health Service Act, 42 U.S.C. Section programs. 295h -9 and Section 298b-2, is found at 117 Cong. Rec. 17 The obligation of an institution to comply with 23,222-64, 25,119-22, 25,181 -86 (1971). It would be in no way obviated or inconsistent with the intent of this legislation to admit the provisions of Title IX is alleviated by any state or local law or other requirement students in a nondiscriminatory manner to a program which subsequently treated them discriminatorily. In which allows or requires discrimination. Similarly, rules or regulations of any organization, club or athletic league or addition,sexdiscriminationagainst students already association do not alter an institution's Title IX obliga- enrolledin a program -might significantlydiscourage tions. See Subpart A, Section 86.6 of the final regulations. qualified students from applying because of their sex. 18 8 Education Amendments of 1972 Sections 901-907, If an educational institutionis composed of 20 U.S.C. Sections 1681.86 (1972). Proposed regulations, more than one school, college or department which are proposed 45 CFR Part 86, can be found at 39 Fed. Reg. administratively separate units, admissions to each unit 27278.40 (June 20, 1974). Final regulations, 45 CFR Part 86, are viewed separately under Title IX. See text accorn can be found at 40 Fed. Reg. 21428.45 (June 4, 1975). panying notes 35.41 supra.

'Updated November 1975 19 23 19 The reader is reminded that there are no similar Nothing contained in subsection (a) of this section shall exemptions under the amendments to the PHSAfor be interpreted to require any educational institution to federally financed health training programs subjectto grant preferential or disparate treatment to the members those provisions. of one sex on account of an imbalance which may exist 20 Since the passage of Title IX, the Maritime with respect to the total number or percentage ofpersons Administration has changed its admission policiesso that of that sex participating in or receiving the benefits ofany women are now admitted to the U.S. Merchant Marine federally supported program activity, in comparison with Academy at Kings Point. New York. the total number or percentage of persons of thatsex in 21 Although HEWattempts to keep the names of any community, State, section or other areaProvided, complainants confidential, women are increasingly filing That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this title complaints through third parties or advocacygroups because they fear harassment. Although such harassment ofstatisticalevidence tending to show that such an is prohibited, itis often very subtle and consequently imbalance exists with respect to the participation in,or difficult to document. receipt of the benefits of, any such programor activity by the members of one sex. 22 20 U.S, 1682. .23 The final Title IX regulations(Subpart F, Section 26 The SupremeCourt has recently avoided the 86.71) adopts the procedures set forth for enforcing TitleVI issue of deciding whether, in the absence ofproven of the Civil Rights Act of 1964 (45 CFR Part 80 Sections discrimination, the Equal Protection clause of the Four- 80.6-80.11 and 45 CFR Part 81) until HEW adoptsa consoli- teenth Amendment permits an institution touse different dated procedural regulation for enforcing the various civil criteria for admitting white and minority students. See rights laws over which it has sole jurisdiction, A proposed DeFunis v. Odcgaard, 94 S.Ct. 1 704 (1974), consolidated procedural regulation can be found at 40 Fed. Reg. 24148.59 (June 4, 1975). 27In a number of employment cases, the courts 24 This is consistent with theregulations to Title have ruled that individuals must be considered on the basis VI of the 1964 Civil Rights Act as amended in July 1973. oftheirindividualcapabilities, not on thebasis of 45 CFR Part 80. characteristics attributed to the group to which they belong. See, for example, Weeks v. Southern Bell Tele- 25 Education Amendments of 1972 Section 901 (b), phone and Telegraph, 408 F,2d 228 (5th Cir, 1969) and 20 U.S.C. 1681 (b) provides that: Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971).

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Photo by Roz Gerstein

'Updated November 1.975 20 2 4 28 401 U.S. 424 (1971). and male students on a nondiscriminatory basis Provided 29 See Subpart C, Section 86.23 of the final regula- that their plans are approved by the Commissioner of tions. Education. 30 A number ofinstitutions are now making 39 There is some speculation that the passage of special efforts and developing special materials to recruit the Equal Rights Amendment would either abolish or women, especially for traditionally "male" fields. For significantly limii these admissions exemptions. It seems example, at Stanford University female students in the fairly certain that the exemptions for public single-sex graduate business program recruit women undergraduates. undergraduate institutions and nonvocational public ele- Similarly, Rensselaer Polytechnic College has a woman on mentary and secondary schools would be negated by the its admissions staff who, among other things, encourages passage of the Equal Rights Amendment. The effect of prospective women students to speak with females al- the amendment on the exemption for private under- ready enrolled. In addition, recruiters are beginning to graduate institutions (both single-sex and coeducational) recruit more actively at female high schools and colleges. is less clear and would depend on court interpretation of the degree of "state action" involved. For a further 31 See Margaret Dunkle, "Grading the College of discussion of this issue, see Monica Gallagher, "Desegre- Your Choice," Ms., June 1974, 101. gation: The Effect of the Proposed Equal_Rights Amend- 32 See Subpart B, Sections 86.15, 86,16 and 86:17: ment on Single-Sex Colleges," 18 St, Louis Univ, L. J. 41 and Subpart C, Sections 86.21 and 86,22 of the final regula- 11973). tions. "40 The question of the applicability of Title IX to 33 In this section, the authors have drawn heavily discriminatory admissionsinprivateundergraduate from the unpublished paper "Expanding Opportunities schools which provide professional or vocational training for the Admission of Women to Graduate and Profes- is, at this point, not clear. Some argue that, since Title IX sional Schools Through Implementation and Enforcement clearly covers vocational and professional education, these of Title IX" by Gary R. Bachula, which was written while programs must have nondiscriminatory admissions. Others he was a student at Harvard Law School (May 7, 1973). argue that the admissions exempticn for private under- Also see David Leslie, "Emerging Challenges to the Logic graduate schools exempts these programs. The final regu- of Selective Admissions Procedure," 3 Journal of Law and lations for Title IX take the fatter position. Education 203 (1974). 41 Single-sex graduate, professional and vocational 34 Similarly, an understanding of bias in admis- schools atalllevels have until July 1979 to achieve mins aids in understanding discriminatory procedures and nondiscriminatory admissions, provided their plans are policies which may also exist in terms of selection of approved by the Commissioner of Education. students for special programs either within the school or 42 Supra note 28. outside the school where the institution plays a role in the selection process (for example, summer science pro- 43 401 U.S. at 431. grams). 44 401 U.S. at 436. 35 Recruitment policies and procedures are exempt 45 For a more detailed discussion of this, see Buek from the nondiscrimination provisions of Title IX to the and Orleans, supra note 10, text accompanying notes same extent that admissions policies are exempt. 72-84. 36 For a discussion of the legislative history of 46 Phi Delta Kappa changed its policy of excluding these exemptions, see Buek and Orleans, supra note 10, women after the Women's Equity Action League (WEAL) text accompanying notes 12-18, 47-51. filed charges of sex discrimination under Title IX against .37 Single sex elementary and secondary schools 25 institutions that sponsored chapters of the honorary, have been challenged on Constitutional grounds. Compare 47 See Subpart C, Section 86.22 of the final regula- Bray v. Lee, 337 F. Supp. 934 (D. Mass. 1972). Subpart tions. C, Section 86.35 of the final regulations provides that: 48 Despite myths that older women are poor risks A recipient whichisa local educational agency shall not, on the basis of sex, exclude as students, studies show that their dropout rate is lower any person from admission to: and their grades higher than "typical" students. See (1) any institution of vocational education MelissaLewisRichter and Jane Banks Whipple, A operated by such recipient; or Revolution inEducation:TenYears of Continuing (2) any other school or educational unit Education at Sarah Lawrence College, Sarah Lawrence operated by such recipient, unless such re, College, Bronxviile, N.Y., 1972. cipient otherwise makes available to such 49 Letters of recommendation, particularlyfor person, pursuant to the same policies and admission to graduate and professional schools, need to criteria of admission, courses, services, and be evaluated in the context of the "protege" system. facilities comparable to each course, service, Often faculty members "sponsor" students, training them and facilityofferedin or through such in the formal and informal systems oftheir future schools. professions. For a variety of reasons, women typically 38 If single-sex public institutions decide to admit have less interaction with faculty and are therefore less both sexes, they have up to seven years to admit female likely than males to benefit from this system and to have

'Updated November 1975 21

2.) strong letters of recommendation. Regarding alumni/ae difficultyin fairly determining just what "community recommendations for minority students, see Meridethv. standards" are. Fair, 298 F. 2d 696 (5th Cir. 1962). 69 Since it is impossibleto identify unwed fathers 69 See Subpart D, Sections 86.31 (c) and 86.37 of with any certainty and consistency, even a-policy which the final regulations. ostensibly applied to all "unwed parents" is probably 51 The reader is reminded that Title IX applies to impermissible under Title IX. the education activities and prograrrts of entities receiving 60 In the fall of 1973, federal funds. Financial aid which is administered by seventeen year old Sharon a Boldman was ruled off the Urbana (Ohio) High School group outside the institution and which the institution in homecoming queen ballot by her school principal who no way endorses, approves, lists or perpetuates is not covered by the antidiscrimination requirements of Title said, "Only virgins can run for homecoming queen." Ms. IX, However, Title IV of the Education Amendments of Boldman was the mother of an infant daughter born out of wedlock. 1972 prohibitslenders who usethe Student Loan Marketing Association from discriminating on the basis of 61 A policy basinga woman's tuition rate on her sex, color, creed or national origin. husband's residency status was voidedin Samuel v. 52 SeeElizabeth W. Haven and Dwight H. Horsch, University of Pittsburgh et al., 375 F. Supp. 1119 (W.D. Pa., How Students Finance Their Education: A National No. 71-1202, April 10, 1974). Survey of the Educational Interests, Aspirations and 62 The parallelprovision for employment can be Finances of College Sophomores in 1969-70, College found in Office for Civil Rights, U.S. Department of Entrance Examination Board, New York, 1972; and Health, Education and Welfare, The Higher Education Helen .S. Astin, "Career Profiles of Women Doctorates," Guidelines, Executive Order 11246, at 13 (37 Fed. Reg. in Rossi and Calderwood (eds.), Academic Womenon the 24686 et seq Nov. 18, 1972): Move, Russell Sage Foundation, Hartford, Conn., 1973. If employees are generally granted leave for 63 Subpart D, Section 86.37 ofthe final regulations personal reasons, such as for a year or more, prohibits single sex scholarships, fellowships and other fi- leavefor purposes relating tochild care nancial assistance except if the single sex financial assis- should be considered grounds for such leave tance is (1) "established pursuant to domestic or foreign and should be available to men and women on an equal basis. wills, trusts, bequests, or similar legal instrumentsor by acts of a foreign government which requires that awards be 63 See SubpartD, Section 86.31 (b) (6) and 86.32 made to members of a particular sex specified therein;proof the final regulations. vided, that the overall effect.. . does not discriminate on the basis of sex" or (2) "provided as part of separate ath- 64 Education Amendments of 1972Section 907, letic teams for members of each sex." 20 U.S.C. (1972). 66 See Subpart D, Section 64 A public agency cannot administer 86.33 of the final regula- a will which tions. discriminates on the basis of race. See Pennsylvaniav. Board of Trustees, 353 U. S. 230 (1957). 66 See Subpart D, Section86.32 (c) of the final 55 Cynthia regulations. L. Attwood, Women in Fellowship and 67 Training Programs,Association of American Colleges, See Subpart D, Section 86.31 of the finalregula- Washington, D.C., 1972, at 15. tions. 56 See Subpart D, Section 86.31 ofthe final regula- 68 See Subpart D,Sections 86.34,86.37(c) and tions. 86.41 of the final regulations.

67 But compare Robinsonv. Board of Regents of 69 Subpart D, Section 86.41 (c)of the final regula- Eastern Kentucky University, 475 F. 2d 707 (6th Cir. tions states that "Unequal aggregate expenoitures for 1973), cert. denied, 94 S Ct. 2382 (1974), with Buek and members of each sex or unequal expenditures for male and Orleans, supra note 10, text accompanying notes 19-25. female teams if a recipient operates or sponsorsseparate 58Although itis clear that Title IX covers this teams will not constitute noncompliance with this section, issue, there is some debate Concerning the appropriatetest but the Director (of the Office for Civil Rights)may consider to be used to determine compliance. Some people argue the failure to provide necessary funds for teams forone sex thatthere should be identical rules for any aspect of in assessing equality of opportunity for members ofeach - appearance for men and women. (For example, if long sex." hairis permitted for females, it must be permitted for 70 For a discussion of the males as well.) Others argue for the "community stand- legal implications of sex discrimination in athletics in educational institutions, ards" approach, where allowabledressmight differ sea Rubin,"SexDiscriminationin according to sex, provided that the community standards interscholasticHigh School Athletics," 25 Syracuse L. Rev, 535 (1974). concerning dress were applied with equal diligence for both sexes. Opponents of the "community standards" 71 For a detailed discussion ofdiscrimination in approach argue that it would merely perpetuate discrimi- sportsin educationalinstitutions,see Association of nation by allowing the community to sanction differential American Colleges, Project on the Status and Education standards for men and women. In additon, they cite the of Women, What Constitutes Equality for Womenin 'Updated November 1975 22 26 Sports? (Federal Law Puts Women in the Running), the availability of extensions, the accrual of seniority and other benefits and privileges, n See Subpart D, Section 86.34 of the final regula reinstatement,andpaymentunder any tions. health or temporary disability insurance or 73 The final regulations require instructional and sick leave plan, formal or informal, shall be noncompetitive programs to be coeducational, unless the applied tb disability due to pregnancy or sport involved is a "contact sport." Also, portions of ele. childbirth on the same terms and conditions mentery and secondary school classes which deal exclu- asthey are applied to other temporary sively with human sexuality may be conducted separately disabilities. (29 CFR 1604.10) for girls and boys. See Subpart D, Section 86.34 of the final Also see note 85 infra. regulations. 83 See Ordway v. Hargraves, 323 F. S_ upp. 1155 74 Employees might also challenge recreational (D. Mass. 1971). opportunities which differentiate on the basis of sex as 84 There would be no bar under Title IX to discriminatory fringe benefits. permitting pregnant students to attend separate classes or 75 On May 20, 1974 Republican Senator John to be tutored at home, provided the same options were Tower of Texas introduced a bill (as an amendment to the open on the same basis to students with other temporary Elementary and Secondary Education Act) to amend physical disabilities. See, however, the legislative history at Title IX so that it would "not apply to an intercollegiate 188 Cong. Rec. 2747 (daily ed. Feb. 28, 1972). athletic activity to the extent that such activity does or 85 In January 1974, the Supreme Court ruled that may provide gross receipts or donations to the Institution school boards violated the due process clause of the necessary to support that activity." The effect of this Fourteenth Amendment by maintaining and enforcing all amendment would have been to exclude virtually mandatory maternity leave policies requiring teachers to intercollegiate (but not interscholastic) athletic activities leave their jobs four and five months before childbirth. from Title IX coverage. The Tower amendment was Cleveland Board of Education et al. v. LaFleur et al 94 deleted from the billin the House-Senate conference S. Ct. 791 (1974). But in Geduldig v. Aiello et al., 417 U.S. committee. 484 (1974), the Court ruled that it was not unconstitutional 76 Subpart D, Section 86.41 (c) of the final regula- for a state disability insurance program to exclude preg- tions states that the Director of the Office for Civil Rights nancy from coverage. aa "will consider" a number of factors in determining whether See Subpart D, Section 86.38 and Subpart E of equal opportunities are available to both sexes. the final regulations. 77 Subpart D, Section 86.41 (b) of the final regula- 87 For afree copy of a chart prepared by the tions allows "separate teams for members of each sex Project on the Status and Education of Women that where the selection for such teams is based upon com- outlines Federal Laws and Regulations Concerning Sex titive skill or the activity involved is a contact sport." Discrimination in Educational Institutions, write to the 78 See Subpart A, Section 86.6 (c) of the final regu- Public InformatiOn Office, Off ice for Civil Rights, Depart- lations. ment of Health, Education and Welfare, Washington,D.C. 79 For example, the University of VVisConsin, the 20201. See also Bernice Sandler, "Sex Discrimination, University of Michigan and the University of Minnesota Educational Institutions, and the Law: a_New Issue on have had Title IX complaints alleging discrimination in Campus," 2 Journal of Law and Education 613 (1973) athletics filed against them. 88 A job can be limited to one sex only if sex can 80 See Subpart 1), Section 86.39 and 86.40, and be proven to be a "bona fide occupational qualification" (bfoq). The courts have interpreted this exemption very Subpart E, Section 86.57 of the final regulations. narrowly: for example, acceptable bfoq's are "lingerie 81 See Association of American Colleges, Project fitter" and "rest room attendant" (provided the attendant on the Status and Education of Women, Health Services is in the rest room while it is in use). forWomen: What ShouldtheUniversity Provide? Washington, D.C., June 1972. 89 See Subpart D, Section 86,31 of the final regulations. 82 The Guidelines on Discrimination Because of Sex, the Equal Employment Opportunity Commission, 98 Id. states: 91 Section 804(b) of the Higher Education Act of Disabilities causedor contributed to by 1965. it'll., 89.329 ("Waggoner Amendment") provides pregnancy, miscarriage, abortion, childbirth, t and recovery therefrom are, foralljob. ',Nothing contained in this Act or any other related purposes, temporary disabilities and Oce\shall be construed to authorize any should be treated as such under any health or department, agency, officer, or employee of temporary disability insurance or sick leave the United States to exercise any direction, plan available in connection with employ. supervision, or control over the membership ment. Written and unwritten employment practices or internal operations of any frater- policies and practices involving matters such nal organization, fraternity, sorority, private as the commencement and duration of leave, club or religious organization at an institu

*Updated November 1975 23 27 tion of higher education (other than a service address a number of issues concerning sex bias in counsel- academy ortheCoast Guard Academy) ing and appraisal materials. which is financed exclusively by funds de- rived from private sources and whose facil- 107 See John Pietrofessa and Nancy K.Schlossberg, "Perspectives on Counselor Bias: Implications for Coun. ities are not owned by such institutions. Under Title VI, no institution/recipient of federal selor Education," 4 Counseling Psychologist 44 (1973) andI.K. and D.M. Broverman,F.E. Clarkson,P.S. assistance may assist any person or agency in practicing Rosenkrantz and S.R. Vogel, "Sex Role Stereotypes in racial discrimination, whether or notits activities are related to the activities of the recipient. HEW's policy Clinical Judgements of Mental Health," 34 Journal of under Title VI has been consistent no matter what form Consulting and Clinical Psychology 1 (1970). "support" takes. For example, recipients may not bo such 108 Pietrofessii and Schlossbergat 49: things as allow a racially segregated social organization, 109-See Subpart D, Section 86.34 ofthe final regula- student activity or professional fraternity to use a school tions. facility to conduct its activities. 110Single sex courses, programs and activities may 92 Race discriminationhas been held to be unlawful be permitted in a few limited instances if they can be in Sigma Chi v. Regents of University of Colorado, 258 F. justified for affirmative action purposes. However, indica Supp. 515 (D.C. Colo. 1966); Webb v. State University, tions arethatthis exCiOtion will be construed very 129 F. Supp. 910 (N.D.N.Y. 1954), appeal dismissed. narrowly.Itis not clear to what extent and in what 93 This is the interpretation whichthe final regula- circumstances special programs or internships for women tions adopted. Subpart D, Section 86.31(b) (7) prohibits only will be permitted. 111 institutions from providing "significant assistance"to such See Subpart D, Section 86.33 of the final regula- organizations which discriminate on the basis ofsex. tions. *94 See Subpart D, Section86.31 of the final regula- 112 See Subpart 8, Section 86.15and Subpart D, tions. Sections 86.34 and 86.35 of the final regulations. 95 Id. 113 For documentation of the degree of sex segrega- 96 Subpart D, Section 86.42of the final regulations tion in vocational schools and programs see Nancy Frazier states that "Nothing in this regulation shall be interpreted and Myra Sadker, Sexism in School and Society, Harper & as requiring or prohibiting or abridging in any way theuse Row, New York, 1973; A Look at Womenin Education: of particular textbook or curricular materials." Issues and Answers for HEWReport of the Commission- 97 er'sTask Force on the Impact of OE Programs Jennifer Macleod and Sandra Silverman, You on Won't Do: What Textbooks on U.S. Government Teach Women, Office of Education, Department ofHealth, High School Girls, KNOW. Inc., Pittsburgh, 1973. Education and Welfare, Washington, D.C., 1972,at 5; Gail Byran, Discrimination on the Basis of Sex in 98Id. at 24. Occupational Education in the Boston Public Schools, BostonCom 99 For further information,see Saano, Jacklin and mission to Improve the Status of Women, 1973,at 6: Tittle, "Sex Role Stereotyping in the Public Schools," 43 Marcia Federbush, Let Them Aspire!, Committeeto friary. Ed. Rev. 386 (1973). Eliminate Sexual Discrimination in the Public Schools, 100 Letter from Estelle R. Ramey to Membership of Ann Arbor, 3rd ed., 1973, at 16-17; and Paula Latimer, Association for Women in Science, August 1, 1972. Survey of Sex Discrimination in the Waco Independent School District, Waco, Taxas, 1973. 101 Association of AmericanColleges, Project on the Status and Education of Women, On Campus With 114 See Subpart D, Section 86.31 ofthe final regulations. Women, No. 7, Washington, D.C., December 1973,at 9. 102 115 For The final regulations (Subpart 0, Section 86.42) a listing of about 4,000 women's studies adopt this position. Also, see the introduction to the final courses and instructors, see Feminist Press, Who's Who regulations by the Secretary of HEW at 40 Fed, Reg. 24135 and Where in Women's Studies, Old Westbury, New York. (June 4, 1975). 1974. 116 103 The January 19 74 unpublisheddraft of the See Subpart D, Section 86.34 (a) of the final Title IX regulations adopted this position. regulations. *117 See Subpart A, Section 86.3 104 That is,a suit in which the parties agree to of the final regulations. initiate litigation in order to obtain a judicial determina- tion of their respective rights. 118 SeeSubpart D, Section 86.31 of the final regulations. 105 For example,at the University of Wisconsin, a group of women medical students has filed charges of sex 119 For a listing of approximately500 women's discrimination under Title IX, claiming that a professor's centers see Association of American Colleges, Project on remarks showed disrespect for women medical students. the Status and Education of Women, Women's Centers: The women supported their claims with tape recordings. Where Are They? Washington, D.C., June 1974. 120 SeeSubpart D, Section 86.31 of the final regula- 106 The final regulations (SubpartD, Section 86.36) tions.

'Updated November 1975 24 28 Washington, D.C., 1971. 121For a listing of such programs, see the publication by the Women's Bureau, U.S. Department of Labor, *122 See Subpart D, Section 86.31 of the final regula- Continuing Education Programs and Services for Women, tions.

Recent Developments Concerning Title IX

November 1975

Statutory Amendment to Title IX: was signed by President Gerald Ford on May 27, Exemption of the Membership Practices 1975,126 published in the June 4, 1975 Federal Re- of Certain Groups gister, and closely scrutinized by Congress during the forty-five day period when Congress could have An additional legislative exemption to Title IX disapproved the regulation by a House-Senate con- was enacted into law in December of 1974. The current resolution as "inconsistent with theact."127 amendment, introduced by Senator Birch Bayh (D- During the Congressional review period, Represen- IN), exempts the membership policies of certain or- tatives James O'Hara (D-MI) and Augustus Hawkins ganizations from the nondiscriminatory require- (D-CA) of the House Education and Labor Commit- ments of Title IX.123 Specifically, this amendment tee held separate hearings on the regulation.128 to Title IX exempts the membership practices of the Although several resolutions of disapproval were Boy Scouts, Girl Scouts, Camp Fire Girls, YWCA, introduced, none successfully passed either House, YMCA, and other single-sex "voluntary youth ser- and the regulation went into effect on July 21, 1975, vice organizations"' whose members are chiefly at the conclusion of the review period. under age nineteen. Additionally, the membership practices of college social fraternities and sororities The Proposed Consolidated Procedural are exempted from Title IX by this amendment. This Regulation amendment does not, however, exempt honorary or professional fraternities and sororities or recreational One of the major changes in the final Title IX youth groups (such as Little League).124 These or- regulation was that the procedural provisions for en- ganizations are covered by the nondiscriminatory re- forcing Title IX would be those already in effect for quirements of Title IX if they receive "significant as- enforcing Title VI of the 1964 Civil Rights Act until sistance" from a covered institution or if the organi- HEW adopts a final "consolidated procedural regu- zation itself receives federal education funds. lation."126 Simultaneous with the June 4, 1975 release of The Final Title IX Regulation the finalTitle IX regulation, the Department of Health, Education and Welfare issued a proposed On July 21, 1975 the final regulation for imple- consolidated procedural regulation13° that outlined menting Title IX126 went into effect, The regulation a uniform enforcement policy for all of the nondis-

'Updated November 1975 25 29 crimination laws enforced by their Office for Civil of the Senate that the Department of Health, Educa- Rights (with the exception of Executive Order tion and Welfare should withdraw the... proposed 11246).131 Originally, this proposedregulation was procedural regulation."138 Senator Bayh also held open forpublic comment until July19,1975. hearings on the proposed regulation on July 7-, However, in the face of strong criticism about the 1975.139 implications of the regulation for civil rtRits enforcement, HEW extended the comment period until Nov- The Sports Memorandum ember 17, 1975)32 - The proposed procedural regulation would, if Shortly after the Title IX regulation went into adopted, change the thrust of the Office for Civil effect, Peter Holmes (Director of HEW's Office for Rights enforcement of various laws prohibiting dis- Civil Rights) sent a nine page memorandum on crimination on the basis of sex, race and other "Elimination of Sex Discrimination in Athletic Pro- grounds. Currently HEW regulations require that the grams" to chief state school officers, superinten- Office for Civil Rights investigate all complaints of dents of local educational agencies, and college and discrimination which they receive. Although HEW university presidents.140 The memorandum was admits that it has never done this, under the pro- written at the direction of President Ford, who in- posed procedures HEW would be released from the dicated in July 21, 1975 letters to the respective obligation to investigate specific complaints, even chairs of the House and Senate committees with though they maintain that these complaints would jurisdiction over Title IX, that he had "instructed" be used as "an important factor" in scheduling com- Secretary Weinberger to issue guidelines... to clari- pliance reviews. Rather, HEW would rely 06 com- fy many erroneous impressions of the effect of the pliance reviews for enforcing the various laws. Regulation on athletics."141 HEW's main argument for eliminating the The memorandum does not set new policy re- complaint mechanism is that their responsibilities garding what standards institutions must use in as- (and, hence, their workload) have increased marked- sessing equal opportunity for both sexes in athletic ly during the past several years. Additionally, they programs.142 Rather,it provides some additional argue that court-ordered actions133 have placed clarification and discussion of the standards and pro- additional demands on their limited resources and cess required by the title IX regulation. that they do not have sufficient staff to handle all in- Some of the key areas which the memoran- dividual complaints.134 However, in fiscal year 1975 dum addresses are: the adjustment period for com- HEW's Office for Civil Rights did not spend all of the pliance withtheprovisionsintheregulation money it was allocated, and returned over ten per- concerning physical education and athletics, the cent of its appropriation to the Treasury.135 time limit for completing the institutional self evalua- Criticism of the basic change of enforcement tion of athletic and other opportunities, the scope of policy came from all sides. The Leadership Confer- the required institutional self evaluation, self evalua- ence on Civil Rights (which represents 130 national tion steps that must taken, unitary versus single sex organizations) and thirty-two additional organiza- teams, sources of funds for athletics, expenditures tions representing minority groups, women, and for athletics, athletic scholarships, and the adminis- handicapped persons urged HEW "to withdraw the trative structures of athletic departments. proposed regulation and to submit new proposals for strengthening the rights of citizens through better The Regulation for Titles VII Et VIII of the HEW enforcement."136 Additionally, twenty-five Public Health Service Act143 conservative members of the House of Representa- tives wrote to President Ford opposing the proposed On July 7, 1975 HEW's Office for Civil Rights regulation because "The rules would have the effect issued a final regulation144 for the administration of an unlimited search and seizure law" by which and enforcement of the 1971 provisions of the Public HEW "could intervene in practically every significant Health Service Act (PHSA), which prohibits sex dis- phase of local school administration without ever crimination in health training programs which re- beingconstrainedtojustifyitsdemands or ceive federal funds under Titles VII and VIII of the actions."137 Also, fifty-two senators joinedSenator PHSA. Additionally, Title VII of the PHSA was Birch Bayh (D-IN) in a resolution "th8t it is the sense amended in 1974 to allow any medical school in the

26 30 process of changing from an institution admitting tained by writing to your representatiYe or to the Subcom- only women to one admitting both sexes until June mittee on Post Secondary Education for the O'Hara hearings (320 Cannon House Office Building, Washington, 30, 1979 to comply fully with the nondiscriminatory D.C. 20515) and to the Subcommittee on Equal Oppor- provisions of the law, provided the institution had a tunities for the Hawkins hearings (300 New Jersey Ave., "transition plan" approved by the Secretary of S.E., Rm. 619 HOB Annex, Washington, D.C. 20515). HEW.145 Additionally, hearings exploring the impact of the Title IX regulation on intercollegiate athletics were held on Septem- ber 16 and 18, 1975 by Senator Claiborne Pell, chair of the Footnotes Subcommittee on Education of the Senate Labor and Pub- lic Welfare Committee. When published, these hearings 123 The "Bayh Amendment" (Section 3 of P.L. 93- can be obtained by writing to your senator or the 568) adds Section 901(a) (6) to Title IX and provides that: Subcommittee on Education (4228 New Senate Office Title IX shall not apply to membership prac- Building, Washington, D.C. 20510). tices (A) of a social fraternity or social soror- 129The regulations for enforcing Title VI can be ity which is exempt from taxation under Sec- found at 45 CFR Part 80 Sections 80.6 - 80.11 and 45 CFR tion 501 (a) of the Internal Revenue Code of Part 81. 1954, the active membership of which con- 130These proposed consolidated procedural rules sists primarily of students in attendance of an for administration and enforcement of certain civil rights institution of higher education, or (B) of the laws and authorities can be found at 40 Fed. Reg. 24148.59 Young Men's Christian Association, Young (1975) and would, if adopted, be a new 45 CFR Part 81. Women's Christian Association, Girl Scourts, Copies of the proposed procedural regulation are also avail- Boy Scouts, Camp Fire Girls, and voluntary youth service organizations which are so able from the Office for Civil Rights, Department of Health, Education and Welfare, Washington, D.C. 20201, as well as exempt, the membership of which has traditionally been limited to persons of one sex from regional HEW offices. and principally to persons of less than nine 131 That is, this procedural regulation would apply teen years of age. to Title IX of the Education Amendments of 1972, Title VI of Subpart B, Section 86.14 of the Title IX regulation spells the Civil Rights Act of 1964, Section 799A and 855 of the out this provision. Public Health Service Act, Section 504 of the Rehabilitation Act of 1972, Section 407 of the Alcohol and Drug Abuse 124 Subpart D, Section 86.31 (b) (7) of the regu- Treatment Act, and Section 321 of the Comprehensive lation states that a recipient of federal education funds shall Alcohol Abuse and Alcoholism Prevention, Treatment and not, on the basis of sex: Rehabilitation Act of 1970. aid or perpetuate discrimination against any person by providing significant assistance to 132 See 40 Fed. Reg. 45442 (October 2, 1975). any agency, organization, or person which 133 See, for example, Adams v. Weinberger, 351 F. discriminates on the basis of sex in providing Supp. 636 (D.D.C. 1972), 356 F. Supp. 92 (D.D.C. 1973), any aid, benefit or service to students or em- affirmed with modification, 480 F.2d 1159 (D.C. Cir. 1973). ployees. 134 See 40 Fed. Reg. 24148.51 (1975) fora fuller dis- 125 The final Title IX regulation, 45 CFR Part 86, can cussion of these arguments. be found at 40 Fed. Reg. 24128.45 (June 4, 1975). Copies of 135 According to a September 25, 1975 letter from the final regulation are also available from the Office for John D. Young (HEW Assistant Secretary, Comptroller) to Civil Rights, Department of Health, Education and Welfare, Holly Knox (director of the Project on Equal Education Washington, D.C. 20201, as well as from regional HEW Rights), the Office for Civil Rights received $23,673,000 for offices. fist al 1975 and, at the end of the year, returned $2,568,000 126 The statute requires that the President approve to the Treasury. final regulations for Title IX. (Education Amendments of 136 Press release of the Leadership Conference on 1972 Section 902, 20 U.S.C. Section 1682 (1922)1 Civil Rights, July 14, 1975 at 1. 127 President Ford transmitted the letter to Con- 137 William Taaffe, The Washington Star, July 6, gress pursuant to Section 431 (d) (1) of the General Educa- 1975, at C-2. tion Provisions Act, as amended by Section 509 (a) (2) of the Education Amendments of 1974 (P.L. 93-380). 138 See 121 Cong. Rec. S14947.48, August 1, 1975 for the complete text of the resolution (S. Res. 235) and 128 See Hearings on Sex Discrimination Regulations comments by Senator Bayh. Before the Subcomm. on Postsecondary Education of the House Comm. on Education and Labor, 94th Cong., 1st 139 These hearings (Senate Hearings on H.R. 9069 Sess. (1975) ("O'Hara hearings"I and Hearings on House Before the Committee on Appropriations, Departments of Concurrent Resolution 330 (Title IX Regulation) Before the Labor and Health, 'Education, and Welfare and Related Subcomm. on Equal Opportunities of the House Comm. on Agencies Appropriations, Fiscal Year 1976, 94th Cong., 1st Education and Labor,94thCong.,1stSess.(1975) Sess., pt. 5, at 4989.5053 (1975)1 can be obtained by writing ("Hawkins hearings"I. Copies of these hearings an be ob- to your senator or from the Senate AppropriationsSub-

27 31 committee on HEW-Labor, 1108 Dirksen Senate Office bear his signature, since it only clarified and reiterated poli- Building, Washington, D.C. 20510. cies previously adopted. 140 Memorandum from Director, Office for Civil 143 Public Health Service Act, Section799A and Rights to Chief State School Officers, Superintendents of Section 855, 42 U.S.C. Section 295h9 and Section 296b -2 Local Educatonal Agencies and College and University (asadded by the Comprehensive Health Manpower Presidents on "Elimination of Sex Discrimination in Athletic Training and Nurse Training Acts of 1971). Programs," September 1975. Copies of this memorandum 144 40Fed. Reg. are available from the Office for Civil Rights, Department of 28572-76 (July 7, 1975). This regulation can also be obtained from the Office for Civil Rights, Health, Education and Welfare, Washington, D.C. 20201, as Departmentof well as from regional HEW offices. Health,Educationand Welfare, 141 Washington, D.C. 20201, as well as from regional HEW Letter froM President Gerald R. Ford to the Hon- offices. orable Carl D. Perkins (Chairman, House Committee on Education and Labor), July 21, 1975. 145 National Research Service Award Act of. 1974 Section 105, P.L. 93-348. There is apparently only one 142 Althoughany Title IX rule, regulation or order institution in the country, the Medical College of Pennsyl- must be signed by the president, the memorandum did not vania, Mich is affected by this amendment.

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, BERNICE SANDLER THE PROJECT ON THE STATUS AND EDUCATION OF WOMEN of Director the Association of American Colleges began operations in September of MARGARET C. DUNKLE 1971. The Project provides a clearinghouse of information concerning Associate Director women in education and works with institutions, government agencies, FRANCELIA GLEAVES and other associations and programs affecting women in higher education. Staff Associate The Project is funded by the Carnegie Corporation of New York, the KAY MECKES Danforth Foundation, and the Exxon Education Foundation. Publication Editorial Assistant of these materials does not necessarily constitute endorsement by AAC or BARBARA BETTS any of the foundations which fund the Project. Editorial Assistant