Title IX Turns 50

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TITLE IX TURNS 50

BY LAURA BAILEY

One sentence that improved the lives of millions of women turned 50 in June 2022. Under Title IX, the civil rights law that prohibits sex-based discrimination in any education program or activity receiving federal assistance, access and equity for women has improved, but there’s still work to do. Marissa Pollick, attorney, Sport Management lecturer, and Title IX expert, discusses progress, challenges, and politics around Title IX.

Pollick was also a U-M student-athlete during the early years following the enactment of Title IX. MM: Which areas lag farthest behind?

MP: The vast majority of schools and institutions receiving federal funds are not in full compliance with Title IX athletics regulations related to participation, scholarships, and treatment. There is also a widespread misunderstanding of Title IX’s application to sexual misconduct in educational programs and the basis for civil liability of schools and institutions that fail to promptly investigate and take appropriate remedial action for sexual misconduct policy violations.

MM: The education department is expected to issue a rule codifying protections for transgender students and rolling back former US Secretary of Education Betsty DeVos’s controversial rule about sexual assault and harassment. What will this mean for transgender students and assault survivors?

Movement Magazine: In your opinion, what are the most significant improvements/ changes for which Title IX is responsible?

Marissa Pollick: From a legal perspective, it is critical to recognize that Title IX helped ensure civil rights protections based on sex in educational institutions, including access to higher education, employment of faculty and staff, and sexual harassment and sexual misconduct. Its application to athletics created the most controversy at the outset, including a multitude of legal challenges. After Title IX’s enactment in 1972, sport opportunities and resources for girls and women significantly began to change. These changes were first reflected in the dramatic increase in participation numbers for girls and women in high school and college athletics. Over time, girls and women also began receiving equitable treatment and benefits in those athletic programs, in comparison to their male counterparts. Today, nearly five decades after its enactment, Title IX is considered responsible for major social and cultural changes in sport, including the widespread acceptance of women as athletes and the recognition of women as potential leaders in the sport industry.

MP: This is an ongoing debate and Marissa Pollick and the 1977 U-M women’s tennis team. controversy. It is a vivid reminder that Title Bentley Historical Library. IX enforcement is a function of our federal government agencies and accordingly subject to political influence. Under the Trump administration, the Department of Education rescinded guidance that extended Title IX protections based on gender identity and transgender status. The Biden administration is expected to restore those protections. The sexual harassment regulations were also modified under the Trump administration. This narrowed the definition of sexual harassment and permitted a higher evidentiary standard that raised concerns among victim advocates that complainants will be more reluctant to come forward and policy violations will be more difficult to prove. MM: What might this rule mean for NCAA sports? Currently, each sport is able to set its own rules regarding who participates.

MP: It is important to remember that civil rights protections for transgender status under Title IX extend to employment and educational programs beyond athletics. It has recently generated the most controversy in sports as transgender participation in women’s sports has become a political wedge issue. If the definition of sex under Title IX is expanded to include gender identity and transgender status, it will be at odds with recent NCAA policy changes as well as many state laws and high school athletic association policies. This will be a matter for judicial interpretation and there currently are pending cases presenting these questions in high school and college sport settings.

MM: How much do these rule changes really mean if each administration can just dismantle the previous administration’s work?

MP: This is a good question in the context I previously noted. The 50-year history of Title IX reflects that enforcement was lax under certain political administrations that did not prioritize civil rights protection based on sex.

MM: In the future, are there other areas that you expect will become bigger issues that are subject to Title IX?

MP: I expect transgender participation in sports will remain at the forefront given the current political climate. Also, sexual abuse in educational programs, including athletics, is a prominent concern.

MM: You were a student athlete here. Can you talk a little about how Title IX impacted sports at U-M?

MP: I was a four-year letter winner in tennis at Michigan in the “early” varsity years [1974-78]. Our athletic director, Don Canham, was among the leading opponents of Title IX in the nation. He reluctantly established a bare-bones athletic program for women that included just six varsity sports. We had limited access to facilities and practice times and were provided one uniform. We had no locker room in a facility [Track and Tennis Building] that had multiple locker rooms for male athletes. We were bumped from our practice facility whenever certain men’s teams wanted to move indoors for extra workout space. the first group of women athletes to receive a varsity letter, which was a small and discolored Block M imitation, as well as the first athletic scholarship, which was arbitrarily capped at 50% in-state tuition for women. Our per diem for travel and meals was less than half of the amount received by male athletes.

Our head coach was a local tennis player with no coaching experience. Because she was a woman, she was classified as “part-time clerical” and paid an artificially low salary, as were all women coaches hired by Mr. Canham.

All of the above was noncompliant with Title IX and its implementing regulations specifically related to athletics. Unfortunately, schools like Michigan were given extensions of time to comply, and there was no individual cause of action recognized under Title IX to sue and recover money damages. Enforcement was handled exclusively through federal agency complaint investigations that were slow and lacked follow-up and monitoring.

The vast improvements in participation opportunities, scholarships, and treatment for Michigan women athletes occurred much later following significant changes in university leadership and athletic administration. By the 1990s, University of Michigan announced policy commitments to foster success of women faculty, students, and staff which included more equitable allocation of resources in all areas, including athletics. There was greater awareness and attention to institutional obligations under Title IX law and regulations, which in turn led to the development and progress of our current nationally-elite women’s athletics teams. n

Mr. Canham and then football coach Bo Schembechler also led a national campaign to preclude women athletes from receiving the Block M. I was among

The 1910 U-M women’s tennis team. Bentley Historical Library. | MOVEMENT | FALL 2022 9