Key Legal Battles Shaping Title IX and Women’s College Sports
As a groundbreaking federal law, Title IX of the Education Amendments Act of 1972 came under significant scrutiny in the nation’s courts, legislatures, and administrative departments. Here’s an abbreviated list of key cases with our notes. We mainly looked at outcomes affecting women’s collegiate athletes’ participation, though other aspects of Title IX, like sexual harassment and discrimination affecting coaches, also have been well-litigated.
When it came to women’s participation in college sports, courts often looked at parameters established in 1979 by the US Department of Education U.S. Department of Education Office For Civil Rights and clarified over the years. These covered proportionality, wherein participation and resources devoted to athletics had to roughly mirror the ratio of genders in the school’s student body as a whole; a continuing effort to expand the women’s programs toward proportionality; or demonstrating that the institution had fully met the needs of its female athletes.
In “Title IX Litigation in the 1990’s: The Courts Need a Game Plan,” Christopher Raymond wrote “In many early Title IX cases, defendant institutions tried to have cases dismissed by claiming that individual students could not sue under Title IX. The universities argued that the law did not give students the right to sue. They argued that the law mandated conditions for receiving federal funding, not legal rights that could be enforced by a court.”
The Supreme Court invalidated that argument via its 1979 judgement in Cannon v. University of Chicago. Geraldine Cannon contended the university had denied her admission to its medical school because of her gender. The court decided she did have standing to sue, defining a private right of action future plaintiffs like Rachel Sanders could take advantage of to file Title IX lawsuits.
Ironically, though Cannon had earned the right to take legal action on her own behalf, she and her lawyer husband failed to convince subsequent courts to rule that the various medical schools that rejected her application had done so improperly.
Justice Byron White delivered the majority opinion of the court, upholding the college’s argument that money received by the financial aid department subjected only that “program or activity” (to quote the original phrasing of Title IX) to the statute’s provisions. He noted, “The fact that federal funds eventually reach the College’s general operating budget cannot subject Grove City to institution-wide coverage.”
The decision proved a major setback to those who hoped to leverage Title IX to create more collegiate-level sports opportunities for women, as athletic departments generally did not receive direct funding from federal sources. The Department of Education Office of Civil Rights discarded multiple pending Title IX investigations in the wake of the ruling.
The decision did have some good news for those wanting an expansive interpretation of the anti-discrimination law. White also wrote:
“The language of §901(a) contains no hint that Congress perceived a substantive difference between direct institutional assistance and aid received by a school through its students.”
That meant accepting students who received federal grants or loans subjected a school to Title IX governance, such as it was. Justice William Brennan wrote an opinion with which Thurgood Marshall concurred, that concurred with that aspect of the court’s decision. However, Brennan dissented regarding the scope of how such a rationale should apply to a university.
“A principal purpose underlying congressional enactment of the BEOG program (the financial aid initiative that provided the tuition assistance to the Grove City students) is to provide funds that will benefit colleges and universities as a whole. It necessarily follows, in my view, that the entire undergraduate institution operated by Grove City College is subject to the antidiscrimination provisions included in Title IX.”
Legislation passed in 1988 would adopt Brennan’s reasoning.
“Senator (Robert) Packwood and Senator (Edward) Kennedy came together and got the Civil Rights Restoration Act passed,” Diane Henson told us. “They rectified that, and basically reversed the Grove City College decision a few years later.”
The act meant athletic departments again needed to become compliant with Title IX and that litigation could potentially act as a remedy if they did not.
“It’s because it didn’t end up being a litigated case, where it’s got a citation in the Fifth Circuit,” Henson explained. “All the athletic directors knew about it, and the settlement and everything. But in terms of precedent, it didn’t become legal precedent, because we settled it. So that’s the difference. The Brown University cases, those cases, they had their trials. They had appeals. And so they have written opinions from judges that other lawyers can utilize. And our litigation ended before that.”
While Henson would have loved to have seen a precedent-setting verdict in her case, she felt the most important thing was to secure the outcome her plaintiffs, and others like them at UT, needed.
In the case, Brown had cited female students’ lower level of participation in intramural athletics than men to justify having fewer female varsity sports opportunities. The courts rejected the argument because it would “ignore the fact that Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women’s interests and abilities.” In other words, they took into account that women had not traditionally been encouraged to participate in competitive sports and even into the ‘90s continued to face obstacles to participation at every level, including the youth levels that ultimately feed into the colleges.
“I sent them all of our materials. I was in contact with the lawyers for the plaintiffs,” explained Diane Henson, who had led the Sanders v. University of Texas at Austin effort. “I like to think that we helped with that LSU case from the standpoint of we gave them some building blocks, so they didn’t have to invent everything.”
For background information, we chatted with Rannah Gray, who testified in the Pederson case in her capacity at the time as LSU’s Associate Athletic Director for marketing and promotions. She remembered the department identifying a need to add sports to be in compliance.
“There was no argument that more needed to be done. And so we all felt like we’re moving in that direction.”
The plaintiffs wanted the process to move more quickly.
“I guess we just weren’t moving fast enough,” Gray said. She remembered bringing in a consultant to help them determine areas where they needed to improve in servicing women’s sports teams.
“You cannot send a student trainer with a women’s sport. You must send a full-time trainer with the women’s sports on the road – made all those changes.”
Gray did feel that while the athletic director at that time, Joe Dean, was “old school,” got a bad rap for being hostile to women’s athletics. She recalled him being “very supportive of increasing the program.” In any case, the Peterson verdict contributed to the credibility of the idea that a department could be compelled to add sports to achieve Title IX compliance.
Once given opportunities, female athletes have run with them. And also kicked, swum, hit, pitched, shot, rebounded, vaulted, and . . . well, you get the picture. One would like to think the world has realized that female athletes can compete and succeed on the playing surfaces and even commercially. But one reason we made Raising Her Game is so young soccer players and others can appreciate the resources they have today. As Diane Henson said to us, “I always want to encourage young women. Always know that this is a privilege you have and it’s a right you need to keep fighting for.”
