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Title IX of the Education Amendments of 1972: Resources from the Law Library

Legislative Path to Title IX

Warren K. Leffler, photographer. Women's lib[eration] march from Farrugut Sq[uare] to Layfette [i.e., Lafayette] P[ar]k. 1970. U.S. News & World Report Magazine Photograph Collection. Library of Congress Prints & Photographs Division.

Momentum for passing federal legislation prohibiting discrimination on the basis of sex in the field of education (both for students and employees) began building in the late 1960s. Disparities in pay between men and women were first addressed by Congress with the Equal Pay Act of 1963, which made it illegal for an employer to discriminate between employees on the basis of sex by paying lower wages to employees of one sex for the same work performed under similar working conditions by employees of the opposite sex. The sweeping Civil Rights Act of 1964 prohibited discrimination on the basis of race, color, and national origin in federally-assisted programs but did not include discrimination on the basis of sex. Thus, a gap existed in federal law with respect to discrimination on the basis of sex in federally-assisted programs.

In 1967, President Johnson signed Executive Order 11375 (PDF), which set forth the federal government's policy on equal employment opportunity in federal employment and contracts with regard to a person's sex. Educational institutions—which historically benefit from federal funding in many areas—appeared to be an obvious area for enforcing the government's policy on equal employment opportunity, but in practice, the federal government did not aggressively pursue allegations of discrimination on the basis of sex in education. In 1970, legislators began to draw attention to the problem of discrimination on the basis of sex in the field of education. At the same time, the Equal Rights Amendment to the Constitution and proposals to prohibit sex discrimination in other areas were also being debated in Congress.

Below are select congressional statements and remarks, hearings, and reports about the discrimination women faced in the field of education and the push for a legislative remedy. The quoted language exemplifies the spirit of the legislative process as the issue of sex discrimination in education moved through Congress leading up to the enactment of Title IX.

Legislative History

March 1970 - 116 Cong. Rec. 6398–6400 (PDF) - Representative Martha W. Griffiths delivered a floor speech in the House of Representatives about the federal government's violation of national policy by funding federal contracts to universities and colleges that discriminate against women as teachers and students, citing 5 U.S.C. § 7151 (1970) (PDF), Executive Order 11246 (PDF), and Executive Order 11375 (PDF).

"It is shocking and outrageous that universities and colleges, using Federal moneys, are allowed to continue treating women as second-class citizens, while the Government hypocritically closes its eyes." Rep. Griffiths, p. 6400 (PDF).

May 1970 - Hearings on the "Equal Rights" Amendment External, pp. 412–48 External - As part of the larger effort to pass the Equal Rights Amendment (ERA) (PDF), Dr. Bernice Sandler and Dr. Elizabeth Boyer of the Women's Equity Action League (WEAL) testified before the Senate Subcommittee on Constitutional Amendments on the extent of sex discrimination in universities and colleges. They spoke about WEAL's attempts to have charges brought against universities for violating Executive Order 11246 (PDF), as amended. They advocated for passage of the ERA to remedy some of the legal loopholes allowing discrimination against women to go unchecked.

"Women have been discriminated against in many areas of life, of which the university is but one. We need to begin to redress these wrongs." Dr. Sandler, p. 415 External

June-July 1970 - Hearings on Discrimination Against Women External, Part 1 External and Part 2 External - In the summer of 1970, the House Special Subcommittee on Education of the House Committee on Education and Labor held seven days of hearings on the topic of discrimination against women in federally-assisted education programs and employment in education. Representative Edith S. Green, the chair of the subcommittee, presided over the hearings. The measure in question was Section 805 of 91 H.R. 16098, which proposed to prohibit discrimination on the basis of sex in federally-financed programs and education by amending existing civil rights laws. These hearings were a major legislative step toward the eventual enactment of Title IX.

"Many of us would like to think of educational institutions as being far from the maddening crowd, where fair play is the rule of the game and everyone, including women, gets a fair roll of the dice.

"Let us not deceive ourselves—our educational institutions have proven to be no bastions of democracy." Rep. Green, p. 2 External.

July 1970 - 116 Cong. Rec. 22,681–82 (PDF) - Representative Abner J. Mikva submitted remarks on the introduction of the Women's Equality Act of 1970, a bill to carry out the legislative recommendations of the Presidential Task Force on Women's Rights and Responsibilities (PDF). The bill proposed to eliminate sex discrimination in several areas, including federally-assisted programs, government employment, employment in educational institutions, wages, and housing. Predicting that progress on the ERA would be slow, Rep. Mikva advocated for statutory remedies that would have an immediate effect in security the rights denied to women. Rep. Mikva introduced a similar bill, the Women's Equality Act of 1971, at the beginning of the 92nd Congress.

"It is surprising and inexcusable that the quality of life Americans have sought for nearly 200 years is in many ways denied female Americans by law. At a time when our commitment to the democratic ideal is being questioned both at home and abroad, it is imperative that the Nation utilize the potential of all its citizens." Rep. Mikva, p. 22682 (PDF).

June 1971 - 117 Cong. Rec. 22,735–43 (PDF) - Senator Birch E. Bayh delivered a speech introducing a Senate version of the Women's Equality Act, a bill similar to the bill introduced in the House by Representative Mikva. The full text of the bill, 92 S. 2185, is printed at 117 Cong. Rec. 22,740–43 (PDF).

"To my mind our greatest legislative failure relates to our continued refusal to recognize and take steps to eradicate the pervasive, divisive, and unwarranted discrimination against a majority of our citizens, the women of this country." Sen. Bayh, p. 22,735.

September 1971 - 117 Cong. Rec. 32,476-79 (PDF) - Senator Bayh introduced the Women's Educational Equality Act, which would have prohibited discrimination on the grounds of sex by institutions of higher education. The full text of the bill, 92 S. 2552, is printed at 117 Cong. Rec. 32,477–78 (PDF).

“As we seek to help those who have been the victims of economic discrimination, let us not forget those Americans who have been subject to other, more subtle but still pernicious forms of discrimination. Let us insure that no American will be denied access to higher education because of race, color, religion, national origin, or sex. The bill I am submitting today will guarantee that women, too, enjoy the educational opportunity every American deserves.” Sen. Bayh, p. 32,476 (PDF).

October 1971 - House Report No. 92-554 on the Higher Education Act of 1971 External - This report from the House Committee on Education and Labor accompanied 92 H.R. 7248, the Higher Education Act of 1971. The House's version of the education bill included Title X, which prohibited discrimination on the basis of sex in educational programs or activities receiving federal funds; removed the educational institution exemption from the equal employment provisions of the Civil Rights Act; authorized the Civil Rights Commission to investigate discrimination on the basis of sex; and eliminated an exemption of individuals employed in executive, administrative, or professional capacities from the equal pay provisions of the Fair Labor Standards Act. A summary of the provisions is available on pages 51–52 of the report External, and a section-by-section analysis starts on page 108 External. Nine members submitted additional views, at pages 251–53 of the report External, that the federal government should not remove private institutions' control over admissions and related decisions, and recommended amending the language to exempt university admissions and recruitment policies from being subject to quotas on the basis of sex.

"One of the single most important pieces of legislation which has prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act of 1964 whch [sic] prohibits discrimination in private employment based on race, color, religion, sex or national origin. The Act prohibits any practice by employers which would tend to discriminate against an employee or prospective employee on the basis of that person's race, religion, sex or national origin. Title VII, however, specifically excludes educational institutions from its terms. [Title X] would remove that exemption and bring those in education under the equal employment provision." Report, pp. 51–52 External.

November 1971 - 117 Cong. Rec. 39,248–63 (PDF) - On November 4, members of the House debated an amendments to the Higher Education Act of 1971. Representative John N. Erlenborn proposed an amendment that exempted undergraduate admissions policies from the sex discrimination prohibitions. He stated he was concerned that the federal government was infringing on the right of colleges and universities in America to determine the composition of their own student bodies. Opponents of the "Erlenborn amendment" expressed their concerns that it would drastically weaken the sex discrimination protections of the title. The amendment was adopted (Roll No. 349 (PDF)). (In the final version of Title IX that was eventually enacted, only private undergraduate higher education admissions policies were exempted from the sex discrimination prohibitions.) It was also during these proceedings that a provision prohibiting discrimination against blind and visually impaired persons in admissions to educational institutions receiving federal assistance was appended to Title IX (page 39,261 (PDF)).

"All that this title does is to ask that a woman be considered as a human being, that her qualifications, her high-school work and other qualifications be considered in the same fashion as those of a male applicant." Rep. Edith S. Green, p. 39,259 (PDF).

February 1972 - 118 Cong. Rec. 5802–5815 (PDF) - Senator Bayh urged the Senate to adopt a provision banning sex discrimination in educational programs receiving federal funds. The full text of Amendment 874 to S. 659 starts at page 5803 (PDF). Sen. Bayh's amendment exempted private undergraduate admissions policies from the prohibition of sex discrimination. During debate on the amendment, a perfecting amendment was proposed that would also exempt the undergraduate admissions policies of public institutions that were traditionally and continually single sex. Both the perfecting amendment and the amendment were agreed to (p. 5815 (PDF)).

While the impact of this amendment would be far-reaching, it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work. Sen. Bayh, p. 5808 (PDF).

May 1972 - Senate Report No. 92-798 on the Education Amendments of 1972, Conference Report to accompany S. 659 External - To resolve the differences between the House-passed and Senate-passed versions of the education amendments bill, a conference committee was created in March 1972. The committee met over 20 times and offered a negotiated, final version of S. 659 in late May. The major points of contention on the education amendments legislation related to school desegregation and anti-busing provisions; the sex discrimination provisions received comparatively little attention during the negotiations. The full text of Title IX, Prohibition on Sex Discrimination, starts on page 148 External of the report. The joint explanatory statement on Title IX starts on page 221 External. Both chambers agreed to the conference report—the Senate, on May 24 (118 Cong. Rec. 18,862), and the House on June 8, 1972 (118 Cong. Rec. 20,340).

"The conference report before us today is the product of the labors of that conference committee. It is a good product—the best possible product—a negotiated product in which is evident the hard, tenuous give and take compromise agreements which were finally arrived at during the course of deliberation lasting close to 3 months." Rep. Carl D. Perkins, 118 Cong. Rec. 20,307 (PDF).

June 1972 - Public Law 92-318 - On June 23, 1972, President Nixon signed into law 92 S. 659, the Education Amendments of 1972, which became Public Law 92-318. Title IX contained the landmark prohibition against sex discrimination in federally funded education programs. The text of Title IX starts on page 373 of volume 86 of the US Statutes at Large. The President's signing statement External on the passage of the law was focused on what he believed was Congress's failure to curb the Supreme Court's authority with respect to school busing and desegregation; he did not mention the prohibition on sex discrimination in his statement.