CHAPTER 1: INTRODUCTION
“I am convinced that we are moving toward a day when students will be safe from discrimination, harassment, and physical violence in our schools. Through the protections enshrined in Title IX, and our continued collective efforts, we can ensure students a level playing field and make schools a better place for them to learn” (Duncan, 2011).
Educational Amendment Title IX has been around since the summer of 1972. Educators are still battling compliance with this law in our publicly funded schools. At any time a school system my find themselves in non-compliance simply because they did not consider the law, or made decisions in disregard to this law that outlines statutes to eliminate discrimination. In addition, current economic struggles may encourage some educational programs to seek funding from any additional source. The Office for Civil Rights reminds all that, “Educational institutions cannot use an economic justification for discrimination” (Pennepacker, 2011, p. 12).
Over the past forty years, Title IX has increased opportunities for all in an effort to eliminate discrimination in our education programs; however, lack of formal training and formal education of the 1972 law leaves our institution leaders at a disadvantage for well-informed, educated decision making.
An extensive review of literature reveals that there is still a misconception of knowledge of compliance with the law of Title IX. In a 2006 study conducted by Katrina Pohlman, she stated, “what was perhaps more troubling than the study’s depiction of inequality was the clear disinterest in reform” (2009, p. 62). In addition, “only 49 of the 129 schools were able to name their Title IX coordinators, which schools are required to have by federal law” (2009, p. 62). Many times education professionals lack awareness of education-related laws, moreover, teacher preparatory programs do not include law-related course in their curriculum (Gough, 2011, p. 257). A survey of over 1300 teachers indicated that 75% of participants had not taken a school law class. (Schimmel & Militello, 2007, p. 262). “A 2009 study indicated that while a majority of principals were uninformed or misinformed about school law issues, 85% indicated that they would change their behavior if they were better informed” (Gough, 2011, p. 266). In addition to education professionals’ lack of knowledge of Title IX, the lack of understanding by parents and students alike creates a deficient for all parties.
This deficient of knowledge creates opportunities for not only intentional but unintentional discrimination in our schools on a daily basis. Simply stated, as acting administrators govern our schools, they do so with a limited knowledge of Title IX and very little training with compliance of the law.
Although Title IX’s purpose is to eliminate discrimination in all areas, it is most commonly associated with athletics. Consequently, Alabama public schools do not require employees to complete any type of graduate work or training in prerequisite to obtaining a job as an athletic director. Therefore, reducing any chance of exposure to Title IX statutes since most undergraduate programs do not have a course in school law. Accordingly, this study will seek to examine the knowledge of compliance with Title IX amongst athletic administrators in the Alabama public school system based on financial status of the institutions involved.
Although Title IX is most associated with athletics, the law behind this amendment encompasses other areas such as bullying, sexual harassment, pregnant and parenting teens, access to higher learning, vocational education, and learning environment. Administrators in Alabama receive little or no training in handling discrimination in any of these situations. Moreover, athletic administrators are not required to complete graduate work of any type; therefore, reducing the chance of exposure to a school law class or Title IX itself. The purpose of this study is to determine the level of knowledge athletic administrators have in accordance with compliance of Title IX.
- Does job indicators of administrators in Alabama public schools affect their knowledge of Title IX?
- Does socioeconomic level of the school affect the knowledge of administrators in public schools in Alabama?
The following null hypotheses are tested at the .05 level of significance.
H1: There is no statistical significance associated with job indicators of administrators in Alabama public schools with their knowledge of Title IX.
H2: There is no statistical significance associated with socioeconomic level of the school and Title IX knowledge of administrators in public schools.
The following definitions are used regularly throughout this study:
Accommodation refers to adjustment of differences; reconciliation. Another possible definition includes a process of mutual adaptation between persons or groups, usually achieved by eliminating or reducing hostility, as by compromise or arbitration.
Compliance refers to cooperation or obedience.
Discrimination refers to the treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit.
Equality refers to the state of being equal; correspondence in rank, value, ability, quantity, and degree.
Federal financial assistance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purposes of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
Hostile environment occurs when the conditions of harassment make it so undesirable for a person or group that the harassment changes the work or educational environment.
Intercollegiate refers to taking place between or participating in activities between different colleges.
Interscholastic refers to between schools, or representative of different schools, especially secondary schools.
Proportionate refers to comparative relation between things or magnitudes as to size, quantity, number, etc. Synonyms include according, accordant, consonant, harmonious, or balanced.
Quid pro quo is a Latin term meaning “something for something.” In the case of harassment, quid pro quo occurs when a person in a supervisory position grants benefits on the basis of getting something else in return. In most cases of harassment this is sexual in nature.
Recipient is any state, political subdivision of any state, or instrumentality of any state or political subdivision, any public or private agency, institution, or organization, or any other entity, or any individual, in any state, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.
Sexual Harassment refers to unwelcome conduct of a sexual nature, which can include unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Thus, sexual harassment prohibited by Title IX can include conduct such as touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e‐mails or Web sites of a sexual nature (Russlyn, 2010).
The study is based on the following assumptions:
- The administrators will answer the survey questions truthfully.
- The administrators will answer the survey questions without fear of constraint or reprimand.
- The administrators hold positions where decisions that may affect Title IX compliance are made.
This study takes into consideration the following limitations:
- School administrators in Alabama have limited knowledge of case law according to Title IX.
- Variation may exist in the decision making process of school administrators in various school systems.
- Variation may exist in school administrator gender, experience, and background.
This study takes into consideration the following delimitations:
- The study is delimited to only school administrators in the Alabama Public School System.
- This study is delimited by reporting of training rather than evidence of training in area of Title IX.
- This study is delimited to only the top twenty highest funded schools and the twenty lowest funded schools in Alabama.
SIGNIFICANCE OF STUDY
The significance of this study will bring forth a greater understanding of progressive case law as it relates to education amendments of 1972, Title IX. Through the impact of this study educators will discover the existence of a need for more updated training in accordance to the laws that eliminate discrimination in federally funded education programs. This study will also examine a correlation between the lack of knowledge and the incidence of non-compliance.
This is a study of knowledge of the 1972 Educational Amendment that included the laws associated with Title IX. This law provides that all students involved with any program associated with a federally funded educational institution receive fair treatment voided by any substance of discrimination. Title IX is most commonly associated with the realm of athletics, but can be strongly prevalent in other areas of our educational institutions. There is evidence of discrimination in all areas of education including the elementary, secondary, and postsecondary institutions. The lack of updated training and knowledge of compliance with this law will be evident in the findings of this study.
This dissertation is divided into five chapters.
Chapter 1 consists of an overview and background for the dissertation. The significance and purpose of this study will be outlined in this chapter.
Chapter 2 offers a review of related literature on Title IX, including the history and major court findings associated with governance of the law.
Chapter 3 outlines the methodology and the procedures used in conducting the study.
Chapter 4 is an analysis of the data and presentation of the findings of the study.
Chapter 5 summarizes the results and discusses the conclusions of the study.
CHAPTER 2: REVIEW OF RELATED LITERATURE
This chapter is a review of literature as it pertains to meeting compliance of the federal Educational Amendment of 1972, labeled as Title IX. The basic Title IX statute provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” (Vest & Masterson, 2007, p. 60). “Civil rights laws enforced by the Office of Civil Rights (OCR) extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries, research facilities, and museums that receive U.S. Department of Education funds” (Office of Civil Rights, para. 2).
Title IX prohibits sex discrimination toward both students and employees. Areas for students include, but are not limited to: “admissions, recruitment, financial aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment, grading, vocational education, recreation, physical education, athletics, and housing. For employees, the regulations covered nine areas: hiring, recruitment, compensation, job classification, fringe benefits, marital or parental status, advertising, pre-employment inquiries, and sex as a bona-fide occupational qualification” (Stromquist, 2013, p. 2-3).
Substantial literature can be found discussing Title IX and intercollegiate sports; however, only small amounts divulge the compliance or lack thereof at the high school level. In addition, the law is most often associated with the balance of athletic opportunity among girls and boys. Many fail to discover that the law is now applied toward other areas of our educational system. In addition to athletics, other areas include: access to higher education, learning environment, math and science, standardized testing, technology, sexual harassment, and education of pregnant and parenting students.
In section one, the history and progress of Title IX will be covered. Section two will provide an overview of other areas introduced above and how they are associated with the law. The third section will discuss the recent growth in complaints against mass quantities of school districts and other landmark cases of individual complaints against single school districts or schools.
History and Progress of Title IX
Title IX began as product of discussion of equal rights from the early 1960’s and led to President John F. Kennedy’s establishment of the President’s Commission on the Status of Women in 1963 (Bertenthal, 2002, p. 1273). “The Commission assessed the social and economic position of women in American society and proposed recommendations for federal action in the areas of employment, education, home and community services, insurance and taxes, and legal treatment with respect to civil and political rights. The Commission found that discrimination against women was both pervasive and detrimental to the realization of opportunities for women” (Bertenthal, 2002, p. 1273).
Reports following the Commission’s findings proposed expansive changes in societal structure in order to integrate women into the workforce and to “encourage women to make their full contribution as citizens” (Bertenthal, 2002, p. 1273). As a product of the Commission’s recommendation, the Civil Rights Act of 1964 prohibited discrimination on the basis of race, color, or national origin In 1971, Oregon Representative Edith Green “introduced the beginning of the sex bias issue in education” (Vest & Masterson, 2007, p. 60). What followed was a series of proposals and legislative acts that eventually became Federal Law as of July 1, 1972 with the signature of President Richard Nixon. The law was put into effect with the President’s signature; however, final regulations were not signed by President Gerald Ford until May 27, 1975 (Vest & Masterson, 2007, p. 60).
Circumstances that led to the creation of a law for equality of men and women were brutal and skewed toward the side of the male gender. Evidence from the United States Department of Education’s report “Title IX: 25 Years of Progress” published in June 1997 indicates many factors of growth and opportunity among women as a result of Title IX. The findings are included below:
- In 1971, only 18 percent of all women, compared to 26 percent of all men, had completed four or more years of college.
- In 1973, 43% of female high school graduates aged 16-24 were enrolled in college in comparison to 63% in 1994.
- In 1972, women received only 9% of medical degrees in comparison to 38% in 1994.
- In 1972, women received 1% of dental degrees in comparison to 38% in 1994.
- In 1972, women received only 7% of law degrees in comparison to 43% in 1994.
- In 1977, only 25% of doctoral degrees were awarded to women in comparison to 44% in 1994. (Riley, 1997)
The U.S. Department of Education report of Title IX: 25 Years of Progress also list the increased opportunities for women and girls to participate in athletics have increased substantially.
“Today, more than 100,000 women participate in intercollegiate athletics—fourfold increase since 1971. In 1995, women comprised 37% of college student athletes, compared to 15% in 1972. In 1996 2.4 million high school girls represented 39 percent of all high school athletes, compared to only 300,000 or 7.5 percent in 1971. This represents an eightfold increase” (Riley, 1997).
In addition to the comparison of the past and future of women in the United States this report also indicated an increased opportunity for women in the United States as a comparison to other countries:
“In the United States, 87% of women 25-34 years old had completed high school in 1992, far more than their counterparts in West Germany, the United Kingdom, France, Italy, and Canada. In 1992, 23 percent of women 25-34 years old had completed higher education degrees, which is significantly higher than for women in France and Japan (12 percent each), the United Kingdom and West Germany (11 percent each), or Italy (7 percent)” (Riley, 1997).
Timeline of Title IX
In the early 1970s Congress began to hold hearings on sex discrimination in higher education. Led by Representative Edith Green (D–OR), witness testified in front of a Special House Subcommittee on sex discrimination occurring in educational institutions (Staurowsky, 2003, p. 100). Title IX derived from an original plan to amend Title VI to include the word “sex” and narrowed its scope to include only education (Staurowsky, 2003, p. 100). As the bill advanced to the Senate, United States Senator Richard Bayh (D–IN) became the principal sponsor claiming “Title IX was to be a ‘strong and comprehensive measure that would provide women with solid legal protection from the persistent, pernicious discrimination’ that rendered women as second-class citizens” (Staurowsky, 2003, p. 99).
In addition, when United States President Richard Nixon signed the bill into law on June 23, 1972, the issue had already been in discussion for close to eight years amongst several interest groups. The law itself would come under immediate scrutiny as organizations were challenged to meet compliance and regulate funding accordingly. In 1974, the Tower Amendment was introduced by Senator John Tower (R–TX) to exempt revenue producing sports from compliance under Title IX. The amendment was rejected but paved the way for the passing of the Javits Amendment which states that Title IX regulations must include reasonable provisions considering the nature of particular sports. The 1974 Javits Amendment sponsored by Senator Jacob K. Javits (R–NY) proposed that contact sports should allow for separate participation among female and male athletes was passed and is still binding today. As the Secretary of Health, Education, and Welfare (HEW) prepared regulations for implementing the law, resistance grew with over 10,000 responses from institutions of which ninety percent were concerning athletics (Staurowsky, 2003, p. 101).
In 1975, guidelines for enforcement were published in the Code of Federal Regulations and the United States Department of Health, Education, and Welfare (HEW) issued “Elimination of Sex Discrimination in Athletic Programs” to publication in the Federal Register (Equal Rights Advocates, para. 4). “Title IX regulations called for:
(1) the designation of ‘at least one employee to coordinate institutional efforts to comply with and carry out Title IX responsibilities,’
(2) the development of a ‘transition plan’ within each educational institution,
(3) the establishment of grievance procedures,
(4) the dissemination of the plan on nondiscrimination policy at the institutional level,
(5) a one-time self-evaluation by the institution to ensure it has been in compliance, and
(6) the undertaking of remedial action as pertinent.
Educational institutions were to notify all their students and employees of the name, office address, and telephone number of the employee designated as Title IX coordinator. This public notification was to be done yearly and information related to the law was to be included in faculty and student handbooks” (Stromquist, 2013, p.7-8). High schools and colleges were given three years to comply and elementary schools were given one year to comply. In the midst of its new regulations, The National Collegiate Athletic Association (NCAA) filed a lawsuit, challenging the legality of Title IX (Staurowsky, 2003, p. 101).
The regulations set forth “specifically prohibits gender discrimination in ‘intercollegiate …athletics,’ and most notably included a section entitled ‘equal opportunity.’ Under this section, HEW related that a ‘recipient’ of federal funding ‘shall provide equal athletic opportunity for members of both sexes.’ In assessing whether a recipient were indeed offered equal opportunities, the regulation provided that the Director of HEW would consider, along with other factors:
(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity” (Shook, 1996, p. 775).
“Equally important, and appended to the end of this list, was a stipulation by HEW that ‘unequal expenditures’ for men’s and women’s teams would not necessarily ‘constitute noncompliance with this section’; however, HEW could consider a failure to provide adequate funding for teams of one sex in ‘assessing equality of opportunity for members of each sex’.” Concurrently, at this stage in the statutory interpretation of Title IX, the administrative agency appeared to focus more aggressively on “equal opportunity” aspects of compliance as opposed to “equal expenditures” (Shook, 1996, p. 776).
Early in its existence, the law indicated that it would be applied to more than just athletics. In 1977, Title IX was used in charges of sexual harassment against and educational institution (Alexander v. Yale University, 1980). Alexander v. Yale (1980) was the first case to indicate that sexual harassment could constitute sex discrimination under Title IX. Five female students accused university professors and staff of making sexual advances in return for class credit and grades. The students stated that such harassment interfered with their course work and future goals for employment. The case was ruled in favor of the defendant on the basis that all students had graduated school.
An additional case in 1976, Vorchheimer v. School District of Philadelphia, provided that Title IX seeks to establish fairness in its application where opportunity is available. “The Supreme Court upheld a lower court decision stating that the existence of a single-sex school (in this case a military school) does not constitute gender discrimination when enrollment is voluntary and the educational opportunities available to girls and boys in the area are essentially equal” (Stromquist, 2013, p. 15).
In 1979, The HEW issues a final policy interpretation and publishes, “Title IX and Intercollegiate Athletics,” in the Federal Register. This interpretation introduced the “three-pronged test” for assessing compliance with the law’s requirements for equal participation opportunities. This approach allowed institutions to comply with the mandate for “equal opportunity” using three independent variables. First, schools can prove substantial proportionality by providing athletic opportunities based on a reflection of the percentage of male and female student in their population. Second, schools can demonstrate a standard and history of expanding opportunities for the underrepresented sex. Finally, institutions may provide proof that female students are fully and effectively accommodated and that their interests are met” (Staurowsky, 2003, p. 103).
This same year, United States Supreme Court rulings in the landmark case of Cannon v. University of Chicago (1979) provide that private individuals have the right to sue under Title IX. This case was the result of a 39 year old female student who applied to medical school at the University of Chicago and Northwestern University. Both schools had policies against admitting students older than 30 years of age. Geraldine Cannon sought out accusations that these “policies were more difficult for persons over 30 years of age than for younger, traditional candidates, she claimed they were more likely to be discriminatory against women, whose educations were typically more interrupted than those of men” (Bruner, para. 2). The Supreme Court decision provided plaintiffs a private right of action, without having to go through a legislative body like OCR. Although this decision is noted for speeding up the process of seeking anti-discrimination justice, it also ruled that proof of intent of discrimination must be proven (Stromquist, 2013, p. 14).
Upon establishment of The United States Department of Education in 1980, primary oversight of Title IX was transferred to the Office for Civil Rights (OCR). This office issued an Investigator’s Manual for compliance to its regional offices.
In 1982, the Supreme Court decision in Mississippi University of Women (MUW) v. Hogan, provided “private single-sex undergraduate institutions can be exempt from the admission requirements of Title IX but they must comply with constitutional equal protection requirements in admissions (i.e., show evidence schools of comparable quality are available for the aggrieved sex) or act to address the effect of past discrimination. In this particular case, a program for nursing open only to women was found to violate the Fourteenth Amendment equal protection clause” (Stromquist, 2013, p. 15).
In 1984, Supreme Court rulings in the case of Grove City College v. Bell established that Title IX applies only to programs receiving direct federal funding. This decision eliminated Title IX coverage and compliance from most athletic programs (Czapanskiy, 1984, p. 381). “The Supreme Court held that when a college receives indirect ‘federal financial assistance’ through educational grants to its students, the college is subject to the provisions of title IX. The Court adopted a narrow reading of the statute, however, by limiting Title IX’s coverage to the specific program or activity toward which federal funds are directed. The ‘program-specific’ holding of Grove City (1984) indicates a shift away from a prior inclination of the Court to construe broadly both Title IX and its parent statute, Title VI of the Civil Rights Act of 1964” (Piche, 1984, p. 1093). In a similar case from 1982, North Haven Board of Education v. Bell, “the Court suggested the defendant school boards could assert that Title IX does not apply when:
- the complaining employee’s salary was not funded by federal money;
- the complaining employee did not work in an education program that received federal assistance; or
- the discrimination allegedly suffered by the complaining employee did not affect a
- federally funded program” (Czapanskiy, 1984 p. 384-5).
However, the Court decision in Grove City v. Bell (1984) “did not clarify a test for determining Title IX’s scope of coverage, therefore the statute may be enforced inconsistently by the Department of Education.” (Piche, 1984, p. 1123-4) The rulings of these two landmark cases brought all court proceedings and investigations of OCR to a standstill for four years. It was not until the passing of The Civil Rights Restoration Act of 1988, which stated that the law applies to all of an educational institution’s programs and activities if any of that institution’s programs or activities received federal funds (Villalobos, 1990). Without this ruling, athletic departments and other educational programs not directly receiving federal funds would be exempt from the requirements of Title IX (Staurowsky, 2003, p. 103).
The 1985 Supreme Court Case, Moire v. Temple University School of Medicine, declared “that ‘a hostile environment of sexual harassment’ is actionable under Title IX, thus incorporating sexual harassment into the law (Stromquist, 2013, p.14).
As the 1990s began, OCR revised and finalized the investigator’s manual to aid institutions in compliance and regulations for sex discrimination. Title IX litigation grew due to budget shortfalls resulting in the elimination of women’s teams. Federal courts ruled in favor of female students by applying the aforementioned three-part test. Schools violated Title IX due to the “lack of adequate athletic opportunities for their female students” (Staurowsky, 2003, p.105). Discussions began again in Congress over the standards of Title IX compliance and the applicability of the three-part test. These discussions eventually led to a hearing conducted by the House Subcommittee on Secondary Education in May 1995. The results of this hearing became the issuance of OCR’s Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Staurowsky, 2003, p. 105).
In 1992, the Supreme Court ruled in Franklin v. Gwinnett County Schools that individuals may be awarded monetary damages for intentional discrimination (Staurowsky, 2003, p. 104). The Franklin (1992) decision brought renewed strength to Title IX by providing a viable penalty to institutions for not complying with the law and “by introducing monetary grievances, lawyers became more likely to take Title IX suits” (Stromquist, 2013, p. 14). The ruling clarified that Title IX applies to “discrimination by employee-to-student or employee-to-employee” (Stromquist, 2013, p.14).
Additionally, in 1992, the NCAA published a Gender-Equity Study of its member institutions, detailing widespread sex discrimination in athletic programs (Acosta and Carpenter, 1992). In addition, a 1993 ruling by the United States Court of Appeals for the Third Circuit finds in Favia v. Indiana University of Pennsylvania that financial and budgetary difficulties are not an excuse for non-compliance (Davidson, 1995, p. 41).
The Gender-Equity Study NCAA institutions leads to the passing of the Equity in Athletics Disclosure Act (EADA), requiring federally-assisted, coeducational institutions of higher education to disclose information about the gender breakdown of their intercollegiate athletic programs in 1994. Institutions were required “to report the number of female and male athletes participating in each individual sport as well as the total number of male and female athletes” (Anderson, 2006, p. 232).
In other orders of business, the United States District Court from the Southern District of Iowa finds in Gonyo v. Drake University (1993/1995) that cutting men’s athletic teams does not violate Title IX or the Equal Protection Clause. This ruling establishes a precedent for monitoring budgets and compliance by eliminating men’s athletic programs. In 1996, OCR issues the final “Clarification of Intercollegiate Athletics Policy Guarantee: The Three-Part Test,” explaining how schools could comply with the regulations set forth in 1979.
In Cohen v. Brown University (1993), the United States Court of Appeals for the First Circuit upheld a ruling from a lower court dismissing arguments that the institution’s actions did not constitute discrimination because women are less interested in sports. This ruling strengthened Title IX law due to the fact Brown University offered more women’s sports teams than any other school in the country besides Harvard (Anderson, 2006, p. 228). An institution is required to effectively accommodate all students’ interests and abilities.
Also in 1996, Congress requests the United States Government Accountability Office to issue a report entitled “Issues involving Single-Gender Schools and Programs”. The following year, OCR issues “Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties”, establishing details for policies and procedures for investigating and resolving allegations of sexual harassment. The document also emphasizes that institutions are responsible for student-on-student sexual harassment.
In the Supreme Court ruling of Gebser v. Lago Vista Independent School District (1998), a student may sue a school district for damages for a teacher’s sexual harassment only if a school official with authority to institute corrective measures had actual notice of misconduct and if the school acted with “deliberate difference” to the harassment.
In association with this case, the Davis v. Monroe Board of Education (1999) ruling by the Supreme Court established that Title IX covers student-on-student harassment if the school had actual notice of, and was “deliberately indifferent” to the harassment. The Court holds that the harassment must go beyond teasing and bullying to harassment that is so severe, pervasive, and objectionably offensive so that it deprives the victims of access to the benefits of education (Rowley, 1999, p. 141).
In 1999 case National College Athletic Association (NCAA) v. R.M. Smith, the Supreme Court upheld that Title IX applies only to institutions that receive federal funds directly. The court decided that dues paid to the NCAA from institutions that received federal aid did not make the NCAA an entity that could be sued under Title IX (Stromquist, 2013, p. 15).
In 2000, OCR issues the “Revised Sexual Harassment Guidance” reaffirming compliance standards described in the 1997 Guidance. The United States Department of Justice issues the “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance; Final Common Rule” on Title IX enforcement for all federal agencies (2000). One year later, they release the “Title IX Legal Manual” providing guidance to federal agencies for the variety of educational programs under Title IX (2001).
The landmark case of the National Wrestling Coaches Association (NWCA) v. Department of Education (DOE) is filed in 2003 “alleged that actions permitted by Title IX’s 1979 Policy Interpretation and 1996 Clarification;
(1) exceeded DOE’s authority under the statute,
(2) violated the equal protection principles in the due process clause of the Fifth Amendment to the U.S. Constitution, and
(3) amended the Title IX regulation without complying with the Administrative Procedure Act” (Ridpath et al, 2008, p. 264).
It also claimed that the Department of Education denied a 1996 petition to appeal the three-part test established in the 1979 Policy Interpretation (Ridpath et al, 2008, p. 264). The NWCA claimed that colleges are limiting the size of men’s wrestling teams or eliminating them all together under the assumption that females have less interest in sports. The NWCA explained that the elimination of such teams is a bold attempt to satisfy the substantial proportionality portion of the 3-part test because there are not enough women interested in sports to add new teams. Furthermore, the NWCA requested the Department of Education to issue new guidelines and to adopt relative interests’ tests in replacement of the 1979 Policy Interpretation and 1996 Clarification (Ridpath et al, 2008, p. 265).
After extensive briefing and argument DOE’s motion to dismiss the case was granted on the basis that the NWCA lacked standing because it could not be proven that Title IX was the sole reason schools were eliminating or limiting wrestling teams. “In fact, it was noted that during the years that Title IX was not applied to athletics because of the Grove City (1984) decision, colleges eliminated men’s wrestling programs at a rate three times as great as they did after Title IX enforcement began” (Ridpath et al, 2008, p. 265). Many schools had downsized their athletic departments in non-revenue sports because they were competitively weak, lacked fan support, and had limited access at the high school and lower levels (Ridpath et al, 2008, p. 265).
In 2002, The United States Department of Education establishes the Secretary’s Commission on Opportunities in Athletics to evaluate changes to Title IX athletic policies. This commission holds four hearing around the country “confirming the importance of enforcing Title IX, the appropriateness of the three areas of compliance, and the three-prong test to assess the meeting of interest and abilities (Leland and Peters, 2003, p. 10). The Leland and Peters report “contained 23 recommendations for strengthening Title IX, including 15 recommendations that were adopted unanimously” (Feder, 2012, p. 9). Recommendations of the commission included “suggestions that the Department of Education:
(1) reaffirm its commitment to eliminating discrimination;
(2) clarify its guidance and promote consistency in enforcement;
(3) avoid making changes to Title IX that undermine enforcement;
(4) clarify that cutting teams in order to achieve compliance is a disfavored practice;
(5) enforce Title IX aggressively by implementing sanctions against violators;
(6) promote student interest in athletics at elementary and secondary schools;
(7) support amendments to the Equity in Athletics Disclosure Act that would improve athletic reporting requirements;
(8) disseminate information on the criteria it uses to help schools determine whether activities that they offer qualify as athletic opportunities;
(9) encourage the National Collegiate Athletic Association to review its scholarship and other guidelines;
(10) advise schools that walk-on opportunities are not limited for schools that comply with the second or third prong of the three-part test;
(11) examine the prospect of allowing institutions to demonstrate compliance with the third prong of the three-part test by comparing the ratio of male and female athletic participation with the demonstrated interests and abilities shown by regional, state, or national youth or high school participation rates or by interest levels indicated in student surveys;
(12) abandon the “safe harbor” designation for the proportionality test in favor of treating each of the three tests equally; and
(13) consider revising the second prong of the three-part test, possibly by designating a point at which a school can no longer establish compliance through this part” (Feder, 2012, p. 10).
Additional recommendations by the commission that were not unanimously favored but won by majority rule included “
(1) clarifying the meaning of “substantial proportionality” to allow for a reasonable variance in the ratio of men’s and women’s athletic participation;
(2) explore additional ways of demonstrating equity beyond the three-part test; adopt any future changes to Title IX through the normal federal rulemaking process; encourage the reduction of excessive expenditures in intercollegiate athletics, possibly by exploring an antitrust exemption for college sports;
(3) inform universities about the current requirements governing private funding of certain sports;
(4) reexamine its requirements governing private funding of certain sports to allow such funding of sports that would otherwise be cut;
(5) allow schools to comply with the proportionality test by counting the available slots on sports teams rather than actual participants;
(6) for purposes of the proportionality test, exclude from the participation count walk-on athletes, who are nonscholarship players that tend to be male;
(7) allow schools to conduct interest surveys to demonstrate compliance with the three-part test; and
(8) for purposes of the proportionality test, exclude nontraditional students, who tend to be female, from the count of enrolled students” (Feder, 2012, p. 10).
This twelve month study lead to the Secretary of Education Roderick Paige’s issuance of “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance” reaffirming established Title IX enforcement guidelines in July 11, 2003” (Staurowsky, 2003, p. 96). The Department of Education confirmed that any part of the three-prong test can be used to demonstrate compliance for Title IX. Furthermore, it is unfavorable to eliminate or cut teams to meet compliance. The 2003 Clarification also promised to provide assistance to schools seeking compliance and to aggressively enforce the law against those that do not. Finally, it was indicated that private sponsorship of athletic teams was still permissible (Feder, 2012, p. 11).
In 2005, The United States Supreme Court rules in Jackson v. Birmingham Board of Education that schools are prohibited under Title IX from retaliating against those who protest sex discrimination. This case involved a high school girls’ basketball coach in Birmingham, Alabama who brought about issues of discrimination on the basis of decrepit practice facilities and lack of support for the girls program. In retaliation of his accusation against the school system, Jackson’s employment was terminated. This landmark case strengthened the application of Title IX by protecting the individual or group reporting acts of discrimination. However, this same year Title IX statutes are weakened when the United States Department of Education issues policy guidance, “Additional Clarification,” stating schools can now send out an email survey to female students of their interest and ability to play certain sports.
If the survey responses do not show enough interest or ability to play then the school is not required to add any sports and are presumed in compliance with Title IX (Feder, 2012, p. 11). Five years later, this statute is rescinded when the Department of Education issues new policy for guidance in compliance with Title IX in 2010. “In particular, the Department of Education emphasized that a survey alone is not sufficient to determine whether a school is accommodating the interests of its underrepresented students, nor will the Department of Education consider a lack of response to surveys as evidence of a lack of interest” (Feder, 2012, p. 11).
In 2011, the Department of Education clarifies that Title IX’s protection against sexual harassment and sexual violence applies to all students. This Dear Colleague Letter describes sexual violence or harassment as, “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX” (Ali, 2011, p.1-2).
Areas Covered Under Title IX
In addition to the increased opportunities in athletics and other extra-curricular opportunities, Title IX increased gender equity and provides protection from discrimination on the basis of sex in vocational education, higher education, career choice, learning environment, and sexual harassment.
Title IX language against sex discrimination is very broad, applying to most elementary and secondary schools, colleges, and universities. The law applies to every aspect of a federally funded education program or activity, including athletics (Samuels & Galles, 2003, p. 13). “The athletics components of those regulations require that educational institutions,
(1) offer male and female students equal opportunities to participate in sports;
(2)allocate athletic scholarship dollars equitably; and
(3) treat male and female students equitably in all aspects of athletics, including with regard to equipment and supplies; locker rooms, facilities, and practice areas; scheduling of games and practices; medical and training services; publicity; and assignment and compensation of coaches.
This article discusses only the first component – equal athletic participation opportunities” (Samuels & Galles, 2003b, p. 13). Under this provision schools and school systems are required to offer equal opportunities for both boys and girls in athletics. No longer do girls have to practice in worn down facilities with outdated equipment, or travel separately from boys’ teams. Prior to Title IX, girls’ athletic teams were not given equal opportunity for practice schedules as well as appropriate competitive game schedules. Athletes who are female are now provided opportunity to participate where there is an interest in playing with the exception of contact sports.
The Javits Amendment of 1975, which was added to the original law, specified a “contact sport exemption”. The addition clarified that a school was exempt from adding a female athlete to an all boys’ team if the sport was deemed to have physical contact in its nature such as football, basketball, or hockey. (Furman, 2007, p. 1173). In an effort to aide in compliance of the Title IX mandate a school may use the three-pronged approach toward acceptance. In 1996, The U.S. Department of Education issued a Dear Colleague Letter which specified this approach. Compliance is dependent on an institutions ability to meet at least one of the following prongs:
(1) The number of male and female athletes is substantially proportionate to their respective enrollments; or
(2) The institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or
(3) The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex (Staurowsky, 2009, p. 103).
First, a school system may achieve compliance with substantial proportionality. This effort requires that the ratio of female athletic participation be within five percent to the ratio of female enrollment at the school. Statistical in nature, substantial proportionality is measurable and is the most common approach used in court cases (Pelak, 2008, p. 192). According to Lamber (2000, p. 159), the statistical worth of the proportionality prong can be a disadvantage and controversial in nature. Opponents of Title IX argue that this approach only portrays one aspect of compliance and does not take into account other ways an institution is complying with the law. Substantial proportionality is viewed as a quota and in return quotas harm athletic opportunities for males by limiting or eliminating opportunities at the expense of increasing participation rates for female athletes (Lamber, 2000, p. 160). Nevertheless, the statistical nature of the substantial proportionality prong gives institutions and courts a measurable basis for Title IX compliance.
Secondly, a school must exhibit a history and continuing practice of program expansion for girls’ athletics. According to Stafford (2004, p. 1470), this method is unclear due to the lack of an established criteria to demonstrate program expansion for girls. History demonstrates that adding athletes to existing women’s teams is not the correct path to address increasing participation rates for women. Furthermore, the courts have not found that any institution has satisfied the continued expansion prong of Title IX compliance (Stafford, 2004, p. 1471).
Finally, a school system must demonstrate full and effective accommodation for sports offerings for girls. According to Mumford (2006), full accommodation under this provision means a school must ensure there is no unmet interest among girls enrolled at the school. The basis of this premise is that girls may not know they are interested in certain sports because they have never had exposure to these sports at a competitive level in the past (i.e. football). As with the second prong of continued expansion, no institution has been able to satisfy the prong of full accommodation or even provide adequate proof of it in the courts (Stafford, 2004, p. 1471). In order to ensure compliance, a school should be careful to check that they are offering a proportionate number of athletic opportunities to those sanctioned by their respective state athletic association (Green, 2011, p. 16).
The office of Civil Rights has referred to the three prongs as a safe harbor signifying to institutions that liability will be waived if they could satisfy at least one of the three prongs. (Reynolds, 2003, p. C2). Consequently, the United States Congress passed the Equity in Athletic Disclosure Act (EADA) in 1994 (DeHass, 2008, p. 6) in an effort to monitor compliance with Title IX at the intercollegiate level. The EADA required all coeducational institutions of higher education receiving federal student financial aid and sponsored intercollegiate athletic programs to provide, yearly, information regarding their athletic programs to the Office of Civil Rights.
According to Deborah Anderson, John Cheslock, and Ronald Ehrenberg (2006) there is a significant gap in noncompliance according to the results published by the EADA (p. 245). Noncompliance to Title IX in NCAA institutions was directly related to enrollment, membership in the Bowl Coalition Series (BCS), and region of the country. Using the three-pronged test, institutions with a larger female enrollment would create a noncompliance issue without a proportionate number of female athletes. Further investigation found that institutions seeking to maintain membership with the BCS had fewer issues with noncompliance (Anderson et al. 2006, p. 226).
Although Title IX was created as an opponent of sexual discrimination at all educational institutions, the three-part approach was implied toward compliance with Title IX at the intercollegiate athletic level. However, here are new applications of it at the interscholastic level. According to Russlyn Ali, Assistant Secretary for civil rights in the Department of Education, “the law is really clear, and has been since 1979, and it has been applied uniformly to K-12 and colleges and universities” (Thomas, 2011, para. 7). Moreover, K-12 schools have not employed a system such as that disclosed by EADA to ensure compliance at its member institutions. Generally, compliance is handled by a Title IX coordinator and various administrative personnel as well as public complaints of liability.
Educational Opportunities and Learning Environment
As stated by Birch Bayh, “What we were really looking for was…equal opportunity for young women and for girls in the educational system of the United States of America. Equality of opportunity. Equality. That shouldn’t be a controversial subject in a nation that now for 200 years has prided itself in equal justice” (Staurowsky, 2003, p. 95).
Gender equity as specified under Title IX may be violated unintentionally with certain learning environments. Separate classes for boys and girls in elementary and secondary schools may cause a violation if the learning environments do not provide equality for both groups. Such classes need to be voluntary in nature as well as provide girls an opportunity to choose to attend other class offerings if needed.
Title IX applies to all public schools, as well as any private educational institution that accepts federal financial assistance. Prior to Title IX, it was customary for schools to exclude one gender from certain classes. Home Economic classes were set aside for girls to learn to take care of the home and “shop” classes, such as Automotive and Welding, were reserved for male students to acquire a skill useful to the betterment of their socioeconomic status (Friend, 2007, p. 58). Following the passage of Title IX, schools were required to offer such classes to each and every student interested in enrolling in such a course. “Title IX applies to all public schools, as well as private educational institutions that accept federal financial assistance. However, Title IX excludes admissions to elementary and secondary schools, as well as to colleges that have been single-sex since their founding.
These exceptions are what permit stand-alone single-sex K-12 schools and women’s colleges to exist without violating Title IX, even though such schools definitionally exclude members of one sex” (Sherwin, 2015, p. 441). In addition, constitutional statutes allow programs such as “glee clubs, boy scouts/girl scouts, and mother-daughter/father-son activities” to be exempt from Title IX legislation. Originally, Title IX’s language suggests that the “statute should serve as an absolute bar to separation on the basis of sex within coeducational schools for programs and activities such as academic classes, homeroom, lunch or recess” (Sherwin, 2015, p. 441).
According to its legislation, Title IX is enforced and regulated by the agencies distributing federal funds to educational institutions. The agency itself is responsible for interpretation, regulation, and enforcement set upon the institution receiving funds. The potential loss of funds remains as the single most powerful sanction that can be placed on an institution not in compliance with the law (Sherwin, 2015, p. 441). However, no school between 1972 and 1991 lost federal funding due to sex discrimination (Sadker and Sadker, 1994, p. 36). These practices remained in place until 2001, when George W. Bush signed the No Child Left Behind Act into law.
The new regulations of NCLB gave schools permission to explore “innovative programs” on the basis of improving test scores among subgroups of students. According to this language, many schools put into practice the separation of boys in girls in classes maintaining gender differences in learning styles and social interactions as the root to boys and girls historically performing better in different subjects such as math and reading. The number of “single-sex classrooms and schools expanded from 12 in 2002 to over 241 in 2006” (Friend, 2007, p. 56). Statistics show boys score higher in math and science courses as opposed to girls in reading and language courses. Gender based classes break down some of the barriers built by the social impact of boys and girls competing against one another in such classes.
William L. Taylor and Dianne M. Piche drafted a letter to the U.S. Department of Education regarding the United States Department of Education amendments to remove restrictions on single-sex classes and schools (Friend, 2007, p. 64). Taylor and Piche claimed the lack of accountability of schools to segregate classes based on gender would provide greater inequalities for one group over another. Taylor and Piche compared gender-based classes to racial segregation in citation of Brown vs. Board of Education “separate is inherently unequal” (Friend, 2007, p. 64). The absence of accountability in public schools may lead to implications of inequalities in single-gender classrooms caused by reinforcement of gender stereotypes (Friend, 2007, p. 64).
Math and science class offerings have been generally dominated in success by male students although test scores for these classes are equal amongst girls and boys at elementary levels.
Career/Technical Education and STEM Programs
Prior to Title IX, women were discouraged from entering in technical fields of study in math and science (Paige, 2003, p. 19-20). Furthermore, the effects of Title IX and the high visibility of programs have influenced compliance in many high schools, colleges, and universities in the area of athletics. “However, in the not-so-visible Career and Technical Education (CTE) programs, very few changes have occurred” (Toglia, 2013, p. 14). This practice has led to disproportionate trends in career choice and pay scales. Jobs of higher technical training, such as automotive mechanic repair, plumbing, and welding, generally garner higher wages than cosmetology, child care, and other vocational programs.
A study conducted by The Women’s National Law Center (NWLC) in 2002, discovered that only 7 percent of students enrolled in welding courses and 8 percent of students enrolled in automotive courses were female. Likewise, 95 percent of students enrolled in cosmetology courses, 87 percent of students enrolled in child care courses, and 86 percent of students enrolled in health assistant related courses are female (Lufkin, et al., 2007, p. 426 ). The trend continues today with male students being steered toward more technical courses and higher skill training therefore gathering ability to earn a higher wage. Female students choose less technically adept courses with less training and consequently earn lower wages.
Additional statistics gathered from the Office of Civil Rights from 2009-2010, show female students in secondary schools customarily choose the following gender-biased Career Technical Education courses: 77% education; 73% Health Science; 53% Marketing and Sales; 40% Information Technology; 21% STEM (U.S Department of Education, June 2012, p. 3).
“In order to increase the participation of girls and women in nontraditional career training, the Carl D. Perkins Act of 1984 required that states assign an individual, known as the ‘sex equity coordinator,’ to direct efforts to overcome gender bias and stereotyping in vocational education” (Toglia, 2014, p. 14). Unfortunately, a 1990 reauthorization of the Perkins Act allocated only 3% of federal funds to gender equity programs. Again in 1998 Perkins was reauthorized, eliminating the state requirement of an equity coordinator but did increase funding for gender equity programs and activities (Toglia, 2014, p. 14).
In 2006, the Carl D. Perkins Career and Technical Education Improvement Act strengthened its stance on gender equity by requiring programs to meet specifications of preparation in nontraditional fields or possibly receive sanctions in the form of improvement plans or loss of federal funding (Dortch, 2012, p. 2). Specifically stated by the Association for Career and Technical Education (ACTE), “core indicators of performance must be defined for secondary and postsecondary CTE students in the state plan. These indicators must be valid and reliable, and at minimum, must include…student participation in, and completion of, CTE programs that lead to employment in nontraditional fields” (2006, p. 76).
Underrepresentation in science, technology, engineering, and mathematics (STEM) programs and careers for women are just as serious as other programs such as CTE and athletics. “According to the Committee on Science, Engineering, and Public Policy (2007) women make up approximately 50% of the total workforce, yet only comprise 20% of the nation’s scientific and technological workers” (Toglia, 2014, p. 15). In addition, females make up only one in seven engineers (Robelen, 2012, para. 21) and “biases such as classroom climate, stereotypes, and discrimination that lead to such disparities begin affecting girls as early as middle school” (Carnevale, Smith, and Melton, 2011, p. 64).
This gender-socialization which affects career choices begins as early as ages six to eight years old in which students already have developed strong gender-role expectations about work and careers (Lufkin et al., 2007, p. 430). Research shows that these expectations are a result of many factors such as “socioeconomic status, parents’ occupations and education levels, and parental expectations” (Domenico & Jones, 2007, para. 13). Career aspirations and choices by girls are more adversely affected when coming from low income families. More specifically, the occupational status, education, and expectations set forth from the mother has a more significant impact on a girl’s career aspiration than any other factor (Domenico & Jones, 2007, para. 16).
Finally, evidence suggests career choices made by all students are significantly affected by guidance counselors at the respective school. “Research also suggests that counselors often lack information and training related to gender-free counseling” (Toglia, 2013, p. 15). The combination of lack of counselor training, expectations in gender roles, and limited choices for classes paves the way for counselors directing women and girls away from nontraditional careers (Toglia, 2013, p. 15).
Gender-based career choice has a significant economic impact across our nation. Traditionally female careers pay substantially lower than traditionally male fields. For example, “cosmetology, in which girls represent 98% of the students, earn a median wage of $9.52 per hour, yet in electricians’ field, in which girls comprise only 6% of students, the median earnings are more than twice as much, at $20.33 per hour” (National Women’s Law Center, 2005, p. 2).
These deficiencies are present in many traditional female and male career choices. These career choices of which girls are guided toward and provided by traditional CTE programs provide much lower wages than the career fields the boys are entering.
Just as in athletics, female students need to be provided opportunity for any interest whether they are apparent or not. Simply stated, a female student may not know of certain opportunities just because other girls are not participating. Promoting all programs for all students to breakdown gender-specific stereotypes must be at the forefront of all education services within the school.
Access to Higher Education
Although there are more opportunities for women to seek out professional degrees and professional programs of study, such as doctorate degrees, medical school, dental school, and law school, the numbers are still skewed toward men actually achieving such qualifications even though women make up a majority of undergraduate college programs of study. Studies find that female students tend to gravitate toward family-friendly traditional careers and programs such as those produced by studies in Language Arts, Education, Communications, Music, and Art. Although “women make up about half of medical and law school students, a majority of them concentrate on a few female-friendly and subsequently lower paying specialties” (Sadker, 1999, para. 8).
Stemming from the societal pressures and sex roles defined prior to the post-war era, opportunities for men to enroll, gain support, and succeed in obtaining a college degree far outweighed the same opportunities for women (Rose, 2015, p. 157). Despite “higher education policy emphasis to expand access to college degrees and federal regulations such as the G.I. Bill in 1944, the National Defense Education Act (NDEA) of 1958, and the Higher Education Act (HEA) of 1965, it wasn’t until the issuance of Title IX in 1972 that women began playing on common ground with their male counterparts (Rose, 2015, p. 157).
Although the aforementioned regulations were gender neutral in nature, society placed a greater burden and hindrance to women attempting to graduate from college in the early 1950’s and 1960’s. Pressures to have and take care of children, as well as fewer opportunities for jobs that allowed time to attend school or even pay for it, restricted the opportunities for a woman to enroll and seek the desired support to complete her degree (Rose, 2015. p. 160). By the early 1970s, “formidable institutional barriers continued to suppress the number of women earning college degrees. Harvard, Princeton, and the University of North Carolina, for example, set strict gender quotas that limited the number of women permitted to study in their institutions, while Dartmouth excluded women entirely” (Rose, 2015, p. 160).
Title IX provided the essential ingredient to prohibit sex discrimination in college admission and financial support for women by raising awareness to the equality for all regardless of sex (Rose, 2015, p. 158). Two proponents of Title IX in Representative Edith Green (D-OR) and Senator Richard Bayh (D-IN) had experienced the effects of gender discrimination personally. Early in her career as a politician, Green had witnessed the advocacy of school officials to provide support programs for at-risk boys but in turn ignored the need for such programs to support at-risk girls. Bayh’s wife, who had graduated with many honors from high school, was denied admission to the University of Virginia with a note that said, “Women need not apply” (Rose, 2015, p. 161).
Over the next decade, Title IX helped to narrow the gender gap in U.S. higher educational attainment. In 1971, only 18 percent of women and 26 percent men had completed at least a bachelor’s degree. By the 1990’s the numbers had grown to 27 percent for both women and men; plus women received 38 percent of medical and dental degrees and 43 percent of law degrees (Rose, 2015, p. 175). In 2009-2010, a study conducted by the U.S. Department of Education found that overall degree attainment had increased for female students to 57% earning a Bachelor’s Degree and 63% earning a Master’s Degree. However, female obtainment of degrees earned in STEM fields continues to remain at a low 31% (U.S. Department of Education, June 2012, p. 4).
Gender gaps continue to exist in high stakes tests like the SAT and ACT. Males continue to outscore females in math and verbal section of the SATs. Boys outscore girls on math and science achievement tests of the ACT. Moreover, “although more girls than boys take AP exams in all courses except math, science and computers, boys earn higher AP scores and are more likely to receive college credit” (Sadker, 1999, para. 15).
Bullying and Sexual Harassment
Although bullying and sexual harassment have been commonplace among schools throughout history, a Title IX violation may occur when this manipulative act interferes with the educational opportunities of an individual at the school. Lawgivers provide various definitions of bullying but all involve behaviors such as, “physical violence or attacks, verbal taunts, name-calling and put-downs, threats and intimidation, extortion or stealing money and possessions, and exclusions from the peer group” (Kosse & Wright, 2005, p. 54). Statistics show the prevalence of bullying as often as “a child is bullied every seven minutes, 80% of adolescents report bullying during their school years, and 90% of fourth through eighth grades report being victims” (Kosse & Wright, 2005, p. 54).
Sexual harassment, a form of bullying, has startling statistics also. “Estimates from a 1993 study indicate that of the 1600 public high school students polled, eighty-five percent of the girls and seventy-six percent of the boys reported experiencing some sort of sexual harassment” (Kosse & Wright, 2005, p. 55). More recent studies, found that college campuses reported nearly 3,300 forcible sex offenses, 800 reported incidents of rape and 3,800 reported incidents of sexual batteries at public high schools (Ali, 2011, p. 2). Just as bullying may take on different forms, there are varying degrees of sexual harassment experienced in schools. Many of these may include verbal attacks such as gestures, comments, jokes and sexual comments or rumors. Sexual harassment may have a more physical facet including being touched, grabbed, or pinched in a sexual way (Kosse & Wright, 2005, p. 55).
Title IX provides a broad view of sexual harassment but can be narrowed to any such action that may limit a student’s ability to receive a proper education or services offered for learning. In 2008, The U.S. Department of Education defined “sexual harassment as conduct that:
1) is sexual in nature;
2) is unwelcomed; and
3) denies or limits a student’s ability to participate in or benefit from a school’s education program” (p. 3).
Students who feel threatened by other students or teachers resulting in a loss of educational opportunity are therefore a victim of sexual harassment under the provisions of Title IX. “Sexual harassment can embody many forms: verbal harassment such as sexual comments or name calling; leering or ogling; jokes or pictures; unnecessary touching; sexist remarks about a person’s clothing, body, or sexual activities; constant brushing up against a person’s body; subtle or overt pressure for sexual favors; physical assault; and rape” (Sherer, 1993, p. 2127). The United States Department of Education cites the following situation as a case of sexual harassment under Title IX:
“Shortly after enrolling at a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and e-mails. One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as “hazing” that new students often experience. They also noticed the new student’s anxiety and declining class participation. The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers” (United States Department of Education, 2010, p. 6).
Under Title IX, this student has a right to equal opportunity to an education as any other student at the school; however, her right to education has been limited by outside circumstances beyond her control. “The school did not comply with its Title IX obligations when it failed to investigate or remedy the sexual harassment” (United States Department of Education, 2010, pp. 6-7). “The conduct was unwelcomed and limited the student’s ability to participate in and benefit from the school’s education program” (United States Department of Education, pp. 6-7).
Similar situations are known to occur with gay and lesbian students. When harassed to the point that a student’s ability to learn is limited or have access to education programs then Title IX compliance of a school district may be violated if school officials “fail to recognize the pattern of misconduct as a form of sex discrimination under Title IX. In addition, “the law prohibits harassment of both male and female students regardless of the sex of the harasser” (United States Department of Education, pp. 6-7).
Courts categorize sexual harassment cases as either “quid pro quo” or “hostile environment” (Sherer, 1993, p. 2126). Quid pro quo harassment involves a person in a supervisory position harassing a subordinate for sexual favors in return for benefits or absence from punishment (Sherer, 1993, p. 2126). An example of quid pro quo harassment could be a teacher, or other school employee, using bribery such as giving a student good grades in exchange for a sexual relationship. Hostile environment occurs when the atmosphere is so demeaning to one student or a group of students that it alters the working or educational environment (Sherer, 1993, p. 2126). An example of hostile environment could occur when verbal attacks by one group of boys toward a girl cause her to stop attending school.
Cases that represent Title IX’s stance on bullying and sexual harassment are present in literature. One of the first trials to implement Title IX in a sexual harassment case was Gebser v. Lago Vista Independent School District (1998). A teacher was accused of making sexually suggestive comments toward female eighth grade students. In addition, the teacher made physical advances toward one student and eventually engaged in sexual intercourse with her. Ruled upon in 1998, the Supreme Court did not find the school liable under Title IX; however, a standard was set for school liability. In the course of the trial it was deemed that a “school official with authority to address the problem must have actual knowledge of the harassment” and that school official must fail to respond adequately which means the “official acts with deliberate indifference or decides not to correct the violation” (Kosse & Wright, 2005, p. 58).
Upon these circumstances the school may be found liable of a violation against the parameters set forth by Title IX. In the case of the Gebser vs. Lago (1998), the school was aware and spoke with the teacher about his sexually suggestive comments. However, the school was unaware of any type of sexual act between the student and teacher.
The same standards for liability hold true for peer-on-peer harassment and bullying. In the case of Davis v. Monroe County Board of Education (1999), the plaintiff sued the school district for its “inaction of allowing known harassment to continue” (Kosse & Wright, 2005, p. 58). Harassment in this situation occurred when a fellow student physically touched another student on repeated occasions and constantly made verbal suggestions and comments toward them. The harassment stopped when the harasser was charged with sexual battery. The Supreme Court held that “a recipient of federal funds could be liable ‘for deliberate indifference to known acts of harassment’ and if the school created a hostile environment for the plaintiff in failing to take disciplinary actions against the student” (Kosse & Wright, 2005, p. 58-59).
In order to help schools determine sexual harassment in schools, OCR published a guide to consider factors depending on circumstances of the situation on a case-by-case basis. These factors include: “the degree to which the conduct affected one or more students’ education; the type, frequency, and duration of the conduct; the identity of and relationship between the alleged harasser and the subject or subjects of the harassment; the number of individuals involved; the age and sex of the alleged harasser and the subject or subjects of the harassment; size of the school, location of the incidents, and context in which they occurred; and other incidents at the school” (Kosse & Wright, 2005, p. 59). Criteria for judgment could be dependent on the school. What may be considered a hostile environment at one school may not constitute the same at another school.
Due to the difficulty of establishing a case, many courts will find judgment on the side of the school. In cases of which the individual finds judgment, they are able to substantially prove the environment is “severe and pervasive” plus the school acted with a well-documented deliberate indifference.
Although the definition and parameters of bullying are not as clearly defined across the nation as sexual harassment, the effect of it may fall under the guidelines of Title IX if it causes an interruption in the education of a child. Nationally, the differences of anti-bullying laws center around three main elements; definition of bullying, how it is reported, and consequences of the act. Common elements can be found in a majority of the definitions. Bullying can take the form of “written or verbal” expressions or gestures as well as be physical in nature. The actions should be proven as “intentional and persistent” as well as create an environment that is “intimidating or threatening” to one or more individuals (Kosse & Wright, 2005, p. 63-64).
An additional element of bullying is how it is reported. Differences amongst states range from mandatory reporting by a school employee such as Arkansas, Connecticut, and New Hampshire to granting immunity to the employee from any detrimental effects of liability like the laws established in Louisiana, Washington, West Virginia, and Oregon. Finally, some states add the requirement to “school districts to create ways for students to anonymously report acts of bullying” (Kosse & Wright, 2005, p. 66). At this point, the consequences of bullying are left up to local school boards in a majority of states. Colorado, Connecticut, and West Virginia do provide guidance of how to handle incidents including parental notification and a possible strategy for protection of the victim from future incidents (Kosse & Wright, 2005, p. 66-67).
Regardless of a state’s definition of bullying, if the act itself creates a environment that is hostile enough to interrupt the education of another student then Title IX may provide coverage for that person as long as they can prove it is severe and pervasive, the school is knowledgeable, and the school willingly decides to do nothing to stop the act.
The effects of sexual harassment and bullying have the potential to alter a person’s life for many years to come. For example, a victim of sexual harassment and bullying may alter their desired educational path, such as transferring out of historically gender-based fields like auto mechanics, agriscience, and welding. Moreover, the effects of these violations may cause a student to transfer from certain schools or even dropout of school altogether (Sherer, 1993, p. 2134).
Pregnant and Parenting Teens
The issue of parenting and pregnant teens in relation to Title IX is largely unchartered and absent of true data. In many cases the pregnant teen and their family are unaware of the protection Title IX affords them. However, the absence of data and litigation does not indicate an absence of violations (McNeely, 2008, p. 276). Moreover, there is an increasing awareness that parenting boys have similar protections under Title.
When Congress passed Title IX law in the early 1970s, students facing the challenges of pregnancy or parenting during their teens garnered a much needed weapon to fight discrimination against an already difficult situation. History tells us that pregnant/parenting teens struggle to complete, much less succeed in school. Many of the practices held toward pregnant teens before the passage of Title IX included expulsion, exclusion from classes and extracurricular activities, harassment, and lack of support to complete their education. In addition, teenage mothers usually fall into several demographically high risk categories such as: low income, single-parent homes, homeless, and Hispanic or African-American.
Facing these characteristics a majority of pregnant or parenting teens drop out of high school. In 2006, the National Campaign to Prevent Teenage Pregnancy reported that approximately 850,000 teenage girls become pregnant and that these pregnancies result in over 500,000 births each year” (Gough, 2011, p. 212). Statistically, “teen mothers make up about a quarter of the total number of dropouts, two-thirds of teenage mothers will never receive a high school diploma, and only 1.5% will earn a college degree before turning thirty” (McNeely, 2008, p. 268-269).
Moreover, teenage pregnancy adversely affects the future of the young mother. They are less likely to be employed, work fewer hours, and earn less per hour. This causes an increased effect of the young mother living below the poverty line and receiving public assistance. Children born into this situation are less likely to excel in school, in turn causing the effect of a teenage pregnancy to filter on for generations. The “lower educational attainment has a noticeably negative effect on outcomes for these girls and their children” (McNeely, 2008, p. 270). Moreover, research shows pregnancy adversely affects the girl more than the boy by citing 33% of girls and only 19% of boys list pregnancy as a reason for dropping out of school (Gough, 2011, p. 214).
Historically, treatment and perceptions of parenting and pregnant teens, has long been discriminatory in nature by teachers and administrators. Surveys of 12 schools showed, “42% did not excuse absences due to pregnancy related problems, 67% did not make arrangements for pregnant students to leave class for related problems, 25% usually or sometimes tracked students into a specific area, such as home economics and 8% required the students to go into such specific areas, 25% did grant sufficient medical leave for childbirth, and only half of the schools reinstated the students to their previous status after the leave, 25% of schools do not allow caring for a sick child as an excused absence.” (Nash & Dunkle, 1989, p. 7-8)
In more recent times, pregnant students are likely to face subtle forms of discrimination, such as coercive counseling and teacher apathy toward the student’s education (Brake, 1994, p. 141). Moreover, discrimination against students from less fortunate backgrounds creates a greater impact on the family and society (Arum & Preiss, 2009, p. 238). These students are less than likely to understand, much less enforce their legal rights creating a “continued marginalization that affects not only the mothering student but also her child” (Gough, 2011, p. 264).
Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (Vest & Masterson, 2007, p. 60). Further regulations stated:
“a) Status generally. A recipient [of federal funding] shall not apply any rule concerning a student’s actual or potential parental, family, or marital status which treats students differently on the basis of sex.
(b) Pregnancy and related conditions. A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.” (McNeely, 2008, p. 272)
In addition, pregnancy, childbirth, and recovery are to be treated the same as any other temporary disability (Gough, 2011, p. 215). Such students will be allowed to enter the educational program at the point of interruption without regulations against the student. A school cannot require a doctor’s note for return to participation unless all students are required to present such a document upon returning to an activity. School attendance or unexcused absences cannot be held against the student when a doctor has deemed the absenteeism necessary. The school system is allowed to provide a portion of a separate educational program or activity but it must be “comparable to the mainstream program”. Entrance into the program must be “completely voluntary” and absent of any persuasion by the school (McNeely, 2008, p. 272).
In relation to education and Title IX, “comparable” and “voluntary” could become ambiguous terms. Although these terms are not directly defined in Title IX law, court proceedings give merit to the definition and meanings as related to education. “Voluntary” can be defined as “free, with full knowledge of its nature and consequences…and not through persuasion, coercion, or compromise of benefit” (McNeely, 2008, p. 273). The student must be aware of rights and knowledgeable of the benefits/consequences of their decision. In similar fashion, “comparable” is not clearly defined in Title IX law.
Definitions from arguments of comparability include words in relation to equal, parallel, functionally or generally equivalent; however, the “Fourth Court’s opinion in United States v. Virginia (1996) is the most useful guide for interpreting Title IX’s ambiguities”. The interpretation of comparability derived from this case “concluded that separate-but-equal single-gender institutions should only be permissible if they include substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, and faculty and library resources” (McNeely, 2008, p. 274).
In many cases, schools provide Homebound services for the pregnant or parenting teen just as they would for other students with disabilities or severe illnesses. Although national standards do not provide clear provisions for these services, many states have drafted policies that include high standards for certified personnel and an education comparable to the mainstream. Historically, schools offered “pregnancy schools” and other educational programs that were less than adequate and far from comparable to a mainstream education. In addition, schools and administrators routinely ignored the “voluntary” clause, forcing teen girls to enroll in programs and discriminating against the rights set up by Title IX law (McNeely, 2008, p. 283).
Title IX explicitly states that schools may not prohibit a pregnant or parenting teen from participating in extracurricular activities. The lack of case law or rulings in relation to participation in extracurricular activities is absent from research. The most prevalent litigation is noted in students being excluded from the National Honor Society (NHS). However, “the four NHS cases represent less than a fourth of the cases addressing the rights of pregnant and parenting teens in school” (Gough, 2011, p. 219). National Honor Society standards “requires that students be selected for membership on the basis of excellence in the areas of scholarship, leadership, service, and character” (www.nhs.us). The NHS definitions of leadership and character involved influential traits that exhibit good conduct, morality, and ethics. Many times schools use these definitions in order to exclude pregnant and/or parenting students from the organization.
“As of January 2010, there are a total of eighteen cases related to Title IX, and pregnant and parenting students” (Gough, 2011, p. 220). Two cases show varying decisions on discriminatory standards toward student membership of the National Honor Society. In Wort v. Vierling (1985), a female student was dismissed from the “school’s chapter due to ‘deficiency of leadership and character.’ However, the district court concluded that she had been dismissed because of her pregnancy or acts leading up to her pregnancy,’ constituting sex discrimination in violation of Title IX and the Fourteenth Amendment” (McNeely, 2008, p. 285).
In a separate case, Pfeiffer v. Marion Center Area School District (1990), a female student was dismissed from the NHS in which the court found that the premarital sexual activity and not pregnancy was grounds for exclusion from the organization. A Title IX violation could not be used due to the fact the school’s policy was not based on the sex of the student. “The Third Circuit Court of Appeals did find that the district court had abused its discretion in excluding the testimony of a male student who was also in NHS” (McNeely, 2008, p. 285).
Findings in other cases follow similar discriminatory guidelines in which female students are treated differently than male students when premarital sex and pregnancy are involved in the decision. A school’s ethics and character policy in relation to such extracurricular activities must be equally conclusive in dismissal procedures for both boys and girls involved in premarital sex. All extracurricular activities that hold similar standards of character, morality, and ethics such as those defined by NHS, should follow nondiscriminatory regulations stated by Title IX. However, activities that do not have such framework will find it difficult to exclude anyone on the basis of premarital sex and pregnancy (McNeely, 2008, p. 287).
There are four cases noted in accommodation of pregnant and/or parenting students which lack court decisions but uncover valid arguments for equality of education as described by regulations of Title IX. In De La Cruz v. Tormey (1978), plaintiffs argued that the lack of childcare facilities at the College of San Mateo created an unequal opportunity for education among young mothers of which the burden of child care fell upon. The case was dismissed on the grounds that there was not intent to discriminate and later appealed; however, a settlement occurred with the construction childcare facilities on the campus of the defendants. In Butler v. National Collegiate Athletic Association (NCAA) (2006), Toure Butler lost a claimed of a Title IX violation in the unequal treatment of fathers in the NCAA. “Butler argued he lost the opportunity to play football in order to work and provide for his daughter.
In return, the court emphasized “NCAA rules that allow a one-year waiver for pregnancy and not motherhood or fatherhood” (Gough, 2011, p. 223). Two cases, Hogan v. Ogden (2008) and Darian v. University of Massachusetts Boston (1997), portray students’ attempts to complete coursework despite interruptions in the educational program due to pregnancy. In both cases, the plaintiffs, Hogan and Darian, could not complete all requirements of a course as originally set up by the instructor due to complications with pregnancy that arose midway through each semester. Hogan, a senior at Central Washington University, began missing classes due to complications in her pregnancy and made arrangements to complete class projects and obtain notes from classes she had missed. The professor inquired several times that Hogan should drop the class; a decision that could alter her date of graduation.
Similarly, Darian experienced complications in her pregnancy that restricted her involvement in a nursing class. Darian was asked repeatedly, and even harassed, by the instructor to drop a nursing class that involved a hands-on practicum in which students were responsible for seeing patients. Under doctor’s orders, Darian could only one patient during her rotations but the professor insisted on her seeing more. Darian was offered the option of taking an incomplete in the course. Again, a decision that would alter her expected date of graduation. Unfortunately for future reference, both cases were dismissed without decision and settled out of court (Gough, 2011, p. 224-229).
Although, “case law on the topic of pregnant and parenting teens is severely disproportionate to the number of parenting and pregnant teens affected by the failures in implementation, there is a body of case law that provides guidance” (Gough, 2011, p. 255). Title IX still provides a broad interpretation that no student should be denied the right to an education; however, schools find it difficult to comply with Title IX due to the lack of updated materials and awareness of Title IX regulations (Gough, 2011, p. 256).
Gender Identity and Transgender Students
Title IX is now being used in cases to derive decisions toward transgender and transitioning students in federally funded institutions across the nation. “In the educational setting, there are four rights that are particularly important for transgender students, beyond freedom of harassing name-calling and assaults:
1) recognition of proper name and pronouns,
2) proper restroom and dressing room usage,
3) proper dress codes, and
4) protection from harassment that involves invasive questioning of one’s identity, right to maintain such an identity, medical history, and anatomical configuration” (Weiss, p. 338-9, 2014).
It is also important to note the differences in terminology and definitions of transgender or transsexual. Transgender identity “includes any type of gender identity or expression that does not conform to the social expectations of one’s sex assigned at birth and transsexual identity “is a more specific term that refers to one who is or desires to be a member of the sex opposite to that assigned at birth. The importance of this distinction lies in the fact that many transgender people do not desire the transition from one sex to another. Transsexual people identify strongly with the opposite sex and take medical and legal steps to assert this identity” (Weiss, p. 336, 2014). However, the all-inclusive character of the terminology of transgender could include “gender queer, cross-dressers, and transexuals” (Taylor, 2007, p. 835).
Although definitions of these terms represent various gendered characteristics and behaviors, all may merge under the term of transgender. In addition, prevalence rates within these communities are skewed and many times suppressed by societal pressures, making it difficult to understand how many people may be affected (Taylor, 2007, p. 835). Moreover, laws and records associated with state agencies do not report one’s sexual orientation. Changes in such documents as a driver’s license, passport, birth certificate, or any other public record varies between the states.
As of 2006, “only one state in the United States, Tennessee, has adopted legislation specifically forbidding a change to the birth certificate to accommodate the results of sexual reassignment surgery. Therefore, one legislature specifically bans a legal change of sex. Twenty-nine jurisdictions (28 states plus the District of Columbia) specifically authorize a sex change for transsexuals by statute or administrative ruling. In the remaining 21 states, which have no legislation or only a general birth certificate amendment statute, the courts must determine the test for legal sex for the purposes of marriage” (Greenberg, 2004, p. 296).
“On May 13, 2016 the U.S Department of Education and the U.S Department of Justice issued a letter to every federally funded school – kindergarten through college which outlines best practices for adapting school policies for transgender and transitioning students” (Hector, p. 16, 2016). The letter was sent to assist school administrators in the interpretation of misconceptions and definitions in current policy. The letter “clarifies the difference between gender identity and the sex one is assigned at birth. While one’s sex assigned at birth is recorded on a birth certificate, gender identity refers to an individual’s internal sense of gender” (Hector, p. 16, 2016).
Both the Department of Education and the Department of Justice have determined that Title IX extends its protection to discrimination against anyone based on both a student’s gender identity as well as a the sex assigned at birth (Hector, p. 16, 2016). The most recent court cases of which Title IX law has been applied to discrimination of transgender students is G.G. v. Gloucester County School Board (2016). Gavin Grimm, a transgender male (sex assigned at birth was female but Grimm identifies as male), was forced to use a separate restroom from the normal male and female restrooms. The court “cited a January 7, 2015 opinion letter stating that schools must treat transgender students consistent with their gender identity not assigned gender but nothing prevents schools from making unisex/single-occupancy restrooms or dorm facilities available to all students” (Hector, p. 16, 2016).
The act of discrimination occurs when an institution requires a transgender student to use one facility over another. Additional clarification stated by the Department of Education and Department of Justice is the use of appropriate pronouns consistent with the student’s identity as well as the name they have chosen. Currently, 22 states have filed suit against the federal government in an attempt to overturn this ruling. The case of G.G v. Gloucester County School Board (2016) now sits with the United States Supreme Court for further ruling and interpretation.
Leading up to the current documentation, federal courts have had differing opinions on the use of Title IX in cases involving discrimination on the basis of sexual orientation (Weiss, p. 333, 2014). M.D. v. School Board of Richmond (2014), claimed “harassment based on actual or perceived sexual orientation is not generally actionable under Title IX. Instead, the discrimination must be based on the plaintiff’s gender”, not on one’s perception of gender (Weiss, p. 334, 2014).
In the Flores v. Morgan Unified School District (2003) case, the school was found at fault under Title IX when it failed to discipline and deter discrimination against the plaintiff. The school administrators argued “that no court had yet established a student’s right under the Equal Protection Clause of the Fourteenth Amendment. The court held, however, that the defendants had ‘fair warning’ that their conduct was unlawful because, as early as 1990, the Ninth Circuit had established the underlying proposition that state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection” (Weiss, p. 334, 2014).
Additionally, in Montgomery v. Independent School District (2000), a student was the target of repeated derogatory comments and actions, including multiple counts of emotional and physical harassment by other students from elementary school until the student was in tenth grade. The courts found in favor of the plaintiff “under Title IX for student-on-student harassment based on gender nonconformity, finding it plausible that ‘the students began tormenting him based on feminine personality traits that he exhibited and the perception that he did not engage in behaviors befitting a boy’” (Rao, p. 252, 2013).
Title IX provides exemptions in various activities based on the sex of an individual (Buzuvis, p. 223, 2013). For example, exceptions are made for “private undergraduate admissions…, institutions whose primary purpose is to train individuals for the military of the United States, social fraternities and sororities and voluntary youth service organizations, boys and girls conferences, father/daughter and mother/son activities, and beauty pageant awards” (Buzuris, p. 224-5, 2013).
An additional exception is made in religious organizations that conclude Title IX is not coherent with the practices of the institution. However, this exception only applies to the practices that conflict with the law and not the organization itself (Buzuris, p. 225, 2013). Additionally, the language of Title IX is based on the sex of an individual and not on the gender that person identifies with. As stated above in its exemptions from certain programs, Title IX may be applied in various situations. For example, a female private undergraduate college refuses the application of a transgender student who identifies as female is not applicable under Title IX. However, a student who is expelled from the same institution for transitioning from female to male would be protected under the same provisions of Title IX (Buzuris, p. 240, 2013).
In many cases of discrimination based on sex, courts point to Title VII of the Civil Rights Act of 1964. Additionally, since the 1989 Supreme Court decision using Title VII in Price Waterhouse v. Hopkins (1989), courts repeatedly prohibit sex discrimination on the basis of gender stereotypes and gender nonconformity (Buzuvis, p. 221, 2013). In this landmark case, Ann Hopkins claimed she was denied a partnership from her former employer, Price Waterhouse, based on her their interpretation that she did not fit what a female employee should look or act like (Friedman, 2007, p. 211-2). The stereotypical comments toward and about Hopkins’ appearance and lack of female behaviors circulated Price Waterhouse and kept the employer from promoting her to partner, regardless of her work history or success (Friedman, 2007, p. 212).
Extensive testimony and research compiled from this case indicates Title VII’s promise to protect all individuals on the basis of sex regardless of sex-biased characteristics or behaviors. Prior to Price Waterhouse (1989), courts had interpreted “sex” dependant on biological characteristics and not identity. Oncale v. Sundowner Offshore Services (1998) further strengthened Price Waterhouse (1989) by providing that discrimination does not need to be “motivated by sexual desire” and discrimination barred under Title VII may occur between individuals of the same sex (Rao, p. 253, 2013).
“In 2008, Schroer v. Billington, a lower federal court decision, marked a turning point for transgender plaintiffs by interpreting sex discrimination to include discrimination on the basis of one’s transsexuality” (Buzuris, p. 231, 2013). While presenting as a male, Schroer was offered a job in the Library of Congress Congressional Research Service. Before starting the job, Schroer indicated the intention to present and undergo transition as a woman.
Subsequently, the job offer was revoked on the basis of obtaining security clearances needed for the job. Upon lawsuit, Price Waterhouse (1989) was applied in the trial and the court decided in favor of Schroer on the basis of discriminatory practices in line with gender nonconformity (Buzuris, p. 231-2, 2013). Moreover, the courts noted in Schroer v. Billington (2008), discrimination based on sexual transition or reassignment targets the person based on sex just as discrimination against one’s decision to change religions targets the person based religious (Buzuris, p. 232, 2013).
Although Title VII is based on the protection of discrimination on employment practices, it has had influence of Title IX as it applies to education. Courts are faced with interpretation of laws and the definition of sex and gender. The application of Title VII in discrimination cases involving the workplace and employment do not have the same implications as the personal characteristics of education when it comes to bathrooms, locker rooms, dormitory and other room assignments generally based on sex (Buzuris, p. 240, 2013).
Title IX has been most influential and prevalent in the elimination of discrimination against girls in the area of athletics. Institutions are now faced with decisions involving transgender students in athletics and other gender-specific activities. Title IX, as well as Title VII, has been applied and will continue to be applied to decisions to protect individuals on the basis of sex. Currently, policy and practice vary from state to state according to laws set forth by their governments. Alabama, Idaho, Nebraska, Texas, Indiana, Kentucky, and North Carolina only allow students to participate according the gender assigned to their birth certificate or sex assigned due to surgery. Montana, North Dakota, Arkansas, Louisiana, Mississippi, Tennessee, South Carolina, West Virginia, and Delaware do not have any type of policy referring to gender or transgender athletes.
The following seventeen states use modified or case-by-case basis for the individual or school district policy: Alaska, Oregon, Arizona, New Mexico, Kansas, Missouri, Oklahoma, Iowa, Illinois, Wisconsin, Michigan, Ohio, Maine, New York, New Jersey, Pennsylvania, and Georgia. Finally, the following sixteen states, as well as the District of Columbia, have developed policy for transgender athletes to compete on the team of their choice and according to their gender identity without need of hormone supplements or medical surgery to reassign sex characteristics: Washington, California, Nevada, Utah, Wyoming, Colorado, South Dakota, Minnesota, Florida, Virginia, Maryland, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Vermont (www.transathlete.com). Since its inception, Title IX has supported gender-segregated teams when safety is a concern but also exclaimed an individual cannot be denied the opportunity for equal participation based on sex.
Historically, there have been concerns of safety, athletic prowess, and privacy when considering participation without boundaries of gender. Courts have routinely rejected arguments from all sides, whether it be a female wanting to participate on an all male athletic team, a transgender female wanting to participate on a female athletic team, or a transgender male wanting to participate on an male athletic team. Findings continue to reject the fact that physical differences between the sexes justify exclusion from one team over another. “For example, in National Organization for Women, Essex County Chapter v. Little League Baseball, Inc. (1974), a New Jersey state court concluded ‘that girls of ages 8-12 are not as a class subject to materially greater hazard of injury while playing baseball than boys of that age group’” (Skinner-Thompson and Turner, 2014, p. 274-5).
In Force v. Pierce City R-VI School District (1983), a federal court held that ‘some 13 year old females could safely play eighth grade football in mixed sex competition, and some 13 year old males could not’, concluding that the school allowed all boys to participate and wanted to exclude any female (Skinner-Thompson and Turner, 2014, p. 275). In Darrin v. Gould (1975), the courts reasoned, “boys as well as girls run the risk of physical injury in contact football games” (Skinner-Thompson and Turner, 2014, p. 275). The court also concluded that since boys were not eliminated because they would not be able to meet team requirements, such as size, speed, or strength, to participate then it would be discriminatory to prevent a female student from participating because of such requirements (Skinner-Thompson and Turner, 2014, p. 275).
The fact that there are significant differences in strength, size, speed, coordination, agility, and other factors contributing to athletic ability for all boys and girls, makes it likely that a transgender athlete at the K-12 level will likely fit into the range of other members of the team regardless of the historical gender of that team. However, the emphasis of physical differences between male and female bodies becomes more prevalent as one matures into adulthood. Accordingly, the National Collegiate Athletic Association (NCAA) has “adopted a policy that requires transgender women to take testosterone-suppressing hormones for at least a year before competing on women’s teams” (Skinner-Thompson and Turner, 2014, p. 276).
Currently, there is no such consistent stipulation or requirement for student-athletes at the K-12 level of competition. Brenden v. Independent School District 742 (1973)and Attorney General v. Massachusetts Interscholastic Athletic Association (1979) conclude there is a lack of evidence that an unfair advantage is justified for a male or transgender female competing on a female athletic team. Furthermore, Attorney General v. Massachusetts Interscholastic Athletic Association (1979) as well as Gomes v. Rhode Island Interscholastic League (1979) rejected the idea of an “influx” or “swamping” of boys to participate on girls teams were inevitable (Skinner-Thompson and Turner, 2014, p. 278-9).
Although Title IX hasn’t specifically been used in the protection of a transgender athlete, court rulings along with the Office of Civil Rights (OCR) and United States Department of Education establish that Title IX prohibits discrimination against transgender students. In Miles v. New York University (1997), Pratt v. Indian River Central School District (2011), and Doe v. Brimfield Grade School (2008), Title IX precedent established that harassment and discrimination occur regardless of transgender or gender nonconformity to “stereotypical ideas of one’s gender” (Skinner-Thompson and Turner, 2014, p. 280).
In addition to these court decisions, OCR’s release of “the 2010 Dear Colleague Letter instructs that ‘although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) student from sex discrimination’” (Skinner-Thompson and Turner, 2014, p. 281). In most court occurrences, gender nonconformity and transgender cases fall under the protection of Title VII and the Price Waterhouse decision of 1989. Similar cases involving transitioning transgender plaintiffs, Macy v. Holder (2012), Schroer v. Billington (2008), and Smith v. City of Salem (2004), demonstrate Title VII’s protection a transitioning individual on the basis of sex (Skinner-Thompson and Turner, 2014, p. 283-5).
The International Olympic Committee was the first organization in sports to design a policy to protect and allow transsexual athletes to compete. This policy allows an “athlete to compete in their newly assigned sex once they have undergone sex reassignment surgery-removal of external genitalia and gonads. Moreover, unless that surgery occurred prior to puberty, the athlete must also undergo hormone therapy to minimize ‘gender-related advantages,’ observe a two-year waiting period following the surgery, and obtain government recognition of their newly-assigned gender” (Buzuvis, 2011, p. 22). Other organizations from around the world have followed the IOC’s lead with similar policies including but not limited to; USA Track and Field, USA Rugby, USA Hockey, the United States Golf Association, and the Ladies European Golf Tour (Buzuris, 2011, p. 22).
While the stance of Title IX and transgender athletes continues to develop, “OCR is clear that Title IX applies to students who are or are perceived to be LGBT on an equal basis, and those students can bring claims for harassment based on nonconformity with gender stereotypes. Significantly, although OCR takes that position that Title IX does not cover harassment based on sexual orientation…” (Rao, 2014, p. 260). In clarification, OCR and the Department of Education published the following statement in its 2010 Dear Colleague Letter to all educational institutions covered under Title IX:
“It can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target. Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also . . . be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment and gender-based harassment” (Russlyn, 2010, October 26, p. 8)
Title IX Complaints of the 21st Century
Historically, many complaints toward the compliance of Title IX among interscholastic athletics have been filed by distraught athlete’s, parents, or coaches within their own school systems. In the past few years, there is evidence of advocacy groups filing substantial compliance complaints naming a multitude of school districts and the schools themselves in a group as a mass. Recently, in 2011, a multitude of Title IX complaints in scholastic athletics surfaced in Oregon, Washington, and Idaho. Washington received complaints in 60 districts consisting of more than 125 high schools. Oregon received anonymous complaints against 60 districts consisting of more than 100 high schools. Idaho received complaints of the lack of compliance in 78 school districts consisting of more than 100 high schools (Green, p. 16).
In addition, “since the late fall of 2010, 210 school districts encompassing more than 525 high schools have been named in Title IX complaints filed with the U.S. Department of Education’s Office for Civil Rights (OCR)” (Green, p. 16).”The National Women’s Law Center (NWLC) filed Title IX complaints with OCR against 12 school districts across the country composed of more than 200 high schools. According to complaints, schools are failing to comply with Title IX’s three-prong test which provides which provides three alternative methods by which an institution may demonstrate that it provides sports participation opportunities for girls equivalent to those provided to boys” (Green, p. 16).
With all of the recent activity and a long-standing history of complaints and lawsuits filed on the basis of Title IX, it is important for school administrators to understand that those who file the claim are protected against retaliation claims. In a March 29, 2005 case involving a coach from Birmingham, AL the U.S. Supreme Court handed down a ruling that establishes this right (Hendrie, 2005). “The ruling establishes that the private right to sue under Title IX of the Education Amendments of 1972 extends to claims of retaliation for complaints about violation of the statute, even if the plaintiffs are not the direct victims of the sex discrimination they report” (Hendrie, 2005).
“One of the Office of Civil Rights primary responsibilities is to resolve complaints of discrimination, and in FY 2009, over 6,000 complaints were filed with OCR” (United States Department of Education, 2010). Other relative statistics from the report to the White House by the U.S. Department of Education included that “between FY 2005 and FY 2009, OCR resolved approximately 3,322 complaints alleging discrimination under Title IX” (United States Department of Education, 2010). The natures of the complaints were most frequently centered on “sexual harassment, different treatment, retaliation, employment, and athletics” (United States Department of Education, 2010).
CHAPTER 3: Methodology
This chapter details the methodology used to determine the level of knowledge possessed by public school administrators in the southeastern United States in accordance to the 1972 Education Amendment, Title IX. The first section will describe the design of the study. The second section will introduce the participants of the study and how they will be selected to participate. The third section will describe the instrument used to gather information for the purposes of the study. The fourth section will provide the procedure by which data was collected and analyzed. The fifth and final section of this chapter will provide an analysis of how the data collected will be rendered of significant importance to the findings of this study.
According to Campbell and Stanley the methodology used for this study will be a quantitative one-shot case study. The design will be structured to determine whether public schools administrators from Alabama have substantial knowledge of compliance in according to Title IX. The independent variables of this study will include four areas of education that may fall under the statutes of Title IX including; career education, learning environment, athletics, and sexual harassment. The dependent variable is based on the knowledge school administrators. A survey design will be chosen for this study so that more individuals may be reached, and therefore a larger population of the public school systems in Alabama involved in the study.
Participants for this study will include athletic administrators from public school systems in Alabama. In an effort to delimitate the variance of answers, athletic administrators will be randomly surveyed by electronic format. Anonymity will be ensured for all participants.
The instrument used for gathering data for knowledge of compliance in according to Title IX will be a 20 question survey designed by the researcher. Each item of the survey will include a Title IX compliance issue or situation. Three areas of the Title IX statute will be addressed including; sexual harassment, athletics, and pregnant/parenting teens. Participants will choose a position on a Likert Scale design according to the level of their knowledge of the applying the statutes of Title IX.
Upon approval from the Internal Review Board, the researcher will submit the survey randomly to athletic administrators throughout the public school systems of Alabama. A cover letter will be attached to the survey explaining the purpose and intent of the study. Participants will be informed of their anonymity and the absence of constraints for a truthful representation in this study.
The researcher will use information from the literature review and information gathered from the Office for Civil Rights to construct a survey instrument to be disseminated to those who choose to participate in the study. The survey data will be analyzed by SPSS Version 19 software to discover the level of knowledge administrators have of compliance with Title IX law.
The null hypothesis for the study will be as follows:
H1: There is no statistical significance associated with job indicators of administrators in Alabama public schools with their knowledge of Title IX.
H2: There is no statistical significance associated with socioeconomic level of the school and Title IX knowledge of administrators in public schools.
Each of these hypotheses will be tested at a .05 significance using an ANOVA.
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