Synopsis of Purpose of Title IX, Legislative History, and Regulations
Congress enacted Title IX with two principal objectives in mind: to avoid the use of federal resources to support discriminatory practices in education programs, and to provide individual citizens effective protection against those practices. SeeCannon v. University of Chicago, 441 U.S. 677, 704 (1979).
2. Legislative History
As the women's civil rights movement gained momentum in the late 1960's and early 1970's, sex bias and discrimination in schools emerged as a major public policy concern. Women, who were entering the workforce in record numbers, faced a persistent earnings gap compared to their male counterparts. As a consequence of the equality in the workforce debate, Americans also began to focus attention generally on inequities that inhibited the progress of women and girls in education. Several advocacy groups filed class action lawsuits against colleges and universities and the federal government. These advocacy organizations complained of an industry-wide pattern of sex bias against women who worked in colleges and universities. As a consequence, Congress focused on the issue of sex bias in education during the summer of 1970 at a set of hearings on discrimination against women before a special House Subcommittee on Education chaired by Representative Edith Green (Oregon). Representative Green introduced a higher education bill with provisions regarding sex equity wherein she unsuccessfully attempted to add a prohibition on sex discrimination to the Education Amendments of 1971.
A year later, Title IX began its congressional life in earnest when an amendment was introduced in the Senate by Senator Birch Bayh of Indiana, who explained that its purpose was to combat "the continuation of corrosive and unjustified discrimination against women in the American educational system." 118 Cong. Rec. 5803 (1972). During debate, Senator Bayh stressed the fact that economic inequities suffered by women can often be traced to educational inequities. In support of the amendment, Senator Bayh pointed to the link between discrimination in education and subsequent employment opportunities:
The field of education is just one of many areas where differential treatment [between men and women] has been documented but because education provides access to jobs and financial security, discrimination here is doubly destructive for women. Therefore, a strong and comprehensive measure is needed to provide women with solid legal protection from the persistent, pernicious discrimination which is serving to perpetuate second-class citizenship for American women.
Id. at 5806-07. Senator Bayh decried the "sex discrimination that reaches into all facets of education – admissions, scholarship programs, faculty hiring and promotion, professional staffing, and pay scales." Id. at 5803 (1972).
Congressional activity on the issue increased with the introduction of various proposals in the House and Senate to end sex discrimination in education. Although there was growing consensus that sex discrimination in education should end, there was little agreement as to the best methods for reaching that goal. Some critics claimed that the legislation was intended to try to maintain a certain quota or ratio of male to female students. Senator Bayh reiterated many times during the debate that "the amendment is not designed to require specific quotas. The thrust of the amendment is to do away with every quota." 117 Cong. Rec. 30,409 (1971). The Senator went on to state that, "The language of my amendment does not require reverse discrimination. It only requires that each individual be judged on merit, without regard to sex." Id.
Even with Senator Bayh's repeated assurances against quotas, it took a House-Senate Conference Committee several months to iron out the differences between the House and Senate education bills. In the end, the House attached a floor amendment to the bill specifying that the legislation would not require quotas.6 The newly clarified legislation was enacted as Title IX of the Education Amendments Act of 1972, 20 U.S.C.A. § 1681, et seq., on June 23, 1972.
Despite this lengthy process, Title IX was passed without much debate as to several of its key exemption provisions. For example, early on it was unclear whether Congress intended to regulate intercollegiate athletics. For this reason, the statute was amended in 1974 to direct the Department of Health Education and Welfare to publish proposed implementing regulations, with a provision stating that such regulations shall include with respect to intercollegiate athletic activities, reasonable provisions considering the nature of the particular sports.7
In 1988 Congress enacted the CRRA to restore the broad interpretation accorded the phrase "program or activity" prior to the Supreme Court's decision in Grove City College V. Bell, 465 U.S. 555 (1984)8. The CRRA amends Title IX and other related nondiscrimination statutes to afford broad coverage to all of the operations of a recipient (although Title IX's prohibition against sex discrimination applies only in a recipient's "education" programs). The CRRA clarifies the definition of "program or activity" or "program." The scope of coverage is no longer limited to the exact purpose or nature of the federal funding. For example, if a State prison receives federal financial assistance, all the operations of the State Department of Corrections are covered by Title VI and Section 504, and all the department's education and training programs are covered by Title IX. Moreover, it is well established that, when a recipient is an educational institution, all of the institution's operations are covered by Title IX's antidiscrimination provisions. See Chapter III(C) for a more detailed discussion of these concepts.
Moreover, it also should be noted that, consistent with the CRRA's purpose of achieving broad, institution-wide coverage of a federal funding recipient's program or activity, there is no requirement that federal funds be extended directly to an "educational" portion of a recipient's program in order to trigger coverage under Title IX. Rather, any federal financial assistance subjects a recipient's entire program or activity to coverage under all four civil rights statutes, but Title IX's prohibition on sex-based discrimination applies only to the educational components of a recipient's program. For example, in the hypothetical described above, federal funds distributed to a Department of Corrections for a non-educational operation such as the provision of medical services would subject all of the Department's educational operations to coverage under Title IX.
The CRRA also amended Title IX to incorporate an "abortion neutrality" provision commonly referred to as the Danforth Amendment, which provides:
Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or services, including the use of facilities, related to an abortion. Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. 20 U.S.C. §1688.
Consistent with the Danforth Amendment, the Title IX common rule does not require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. However, medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman or to address complications related to an abortion are not subject to this section. 65 Fed. Reg. 52869 (2000)(Section __.235(d)(1)). Moreover, the Title IX common rule prohibits a recipient from discriminating against, excluding, or denying benefits to a person because that person has obtained, sought, or will seek an abortion. This prohibition applies to any service or benefit for an applicant (for enrollment or employment), student, or employee. 65 Fed. Reg. 52869 (2000)(Section __.235(d)(2)).
In addition, the CRRA expanded the exemption for entities controlled by religious organizations. Under the CRRA, the exemption is no longer limited to educationalinstitutions that are controlled by religious organizations with tenets contrary to Title IX. Instead, any educational operation of an entity may be exempt from Title IX due to control by a religious organization with tenets that are not consistent with the provisions of Title IX. Further, the exemption would apply to a particular education program operated by a recipient if this separate program is subject to religious tenets that are not consistent with Title IX.
As in the Department of Education Title IX regulations, the Title IX common rule provides:
An educational institution or other entity that wishes to claim the exemption set forth in paragraph (a) of this section shall do so by submitting in writing to the designated agency official a statement by the highest-ranking official of the institution, identifying the provisions of these Title IX regulations that conflict with a specific tenet of the religious organization.
Section ___.205(b). The preamble to the Notice of Proposed Rulemaking of the Title IX common rule explains that if a recipient has already obtained an exemption from the Department of Education, such exemption may be submitted to another funding agency as a basis for an exemption from the second funding agency. 64 Fed. Reg. 58570 (1999).
Title IX requires that agencies promulgate regulations to provide guidance to recipients of federal financial assistance who administer education programs or activities on Title IX enforcement. After the passage of Title IX, the Department of Health, Education, and Welfare (HEW) adopted implementing regulations. 40 Fed. Reg. 24128 (1975). When HEW split in 1980 into two departments, the Department of Education and the Department of Health and Human Services, each new agency adopted the regulations. See 34 C.F.R. Part 106 and 45 C.F.R. Part 86, respectively. Two other federal agencies, the Department of Agriculture and the Department of Energy, also published Title IX rules around that same time.9
On October 29, 1999 the Department of Justice and 23 other agencies published a Notice of Proposed Rulemaking to implement Title IX. See 64 Fed. Reg. 58567 (1999). In the Title IX common rule, the substantive nondiscrimination obligations of recipients, for the most part, are identical to those established by the Department of Education under Title IX. However, the rule reflects statutory changes to Title IX, such as those resulting from passage of the CRRA, and modifications to ensure consistency with Supreme Court precedent. After receiving and reviewing comments, and making a few additional changes to the regulations in response to these comments, the Department of Justice and 20 other participating agencies published the final Title IX common rule on August 30, 2000.10See 65 Fed. Reg. 52857 (2000).