Title IX of the Education Amendments of 1972, one of the most important and successful civil rights laws in U.S. history, bars sex discrimination in any educational program or activity that receives federal funding, including athletics. The law gave women access to classes, facilities and opportunities that had historically been male-only.
Prior to Title IX, if a woman wanted to pursue a professional degree in college, she could be passed over for a law school or medical school program simply because she was a woman. Since then, the 33-year-old law has proven itself integral to women’s rights. From the class rooms and playing fields to the executive suites, Title IX has been a vital tool in advancing equal opportunities for women and girls.
But the current Bush Administration has worked, through a variety of maneuvers, to weaken Title IX and the educational equality it guarantees. In 2003, League of Fans and Ralph Nader joined with many organizations and individuals in the fight to preserve Title IX from a Bush Administration attempt to undermine the law. President Bush’s appointment of a Blue Ribbon panel, called the Commission on Opportunity in Athletics, made recommendations to change Title IX policies that would have diminished three decades of progress in athletics for women. This energized millions of supporters who exposed baseless arguments from opponents of Title IX and finally led to the Department of Education upholding the Title IX standards of compliance.
The most recent Bush Administration assault on Title IX came in March 2005 when the Department of Education quietly cut the legs out from under the anti-discrimination law, inviting no public comment on the new guidelines before posting them on the Department’s website. Shifting the burden of proof from institutions to female students, the alteration allows schools to comply with Title IX by making female students justify that they are deserving of equal opportunities in athletics by responding to e-mail surveys. If these surveys do not show enough interest in, or ability to play, sports, or if there is a lack of response to the survey, then a school can avoid offering sports opportunities to women and be in compliance with Title IX.
As Marcia D. Greenberger, Co-President of the National Women’s Law Center questioned in a press release, “How many people open, let alone respond to e-mail surveys? This is simply an underhanded way to weaken Title IX and make it easy for schools that aren’t interested in providing equal opportunity for women to skirt the law.”
Julie Foudy, captain of the gold medal-winning U.S. Olympic women’s soccer team who defended Title IX as part of the Commission on Opportunity in Athletics, told USA Today, “I can hear it now. ‘We lost a women’s team because the e-mail survey got stuck in my spam folder for six months.’”
The Title IX Record of John Roberts:
Dating back to the 1980’s, John Roberts has taken positions in several key cases that have either weakened Title IX’s protections or could have, had his positions prevailed. The following synopsis is from the Women’s Sports Foundation:
A) Roberts Took Positions that Would Have Resulted in Eliminating Title IX Coverage of Athletics
During his tenure as a Special Assistant to the Attorney General, Roberts argued that Title IX coverage should not extend institution-wide. He argued that Title IX covered only those programs that specifically receive federal funds. (1) These arguments were accepted by the Department of Justice in Grove City v. Bell (1984), where it successfully argued for the Supreme Court to adopt a program-specific approach to Title IX (i.e., only the specific program that receives federal funds would be prohibited from discriminating on the basis of sex, not the entire educational institution). (2) Because virtually no athletic program receives direct financial aid, this ruling essentially stripped the OCR of the power to eradicate sex discrimination in intercollegiate athletics and the growth of women’s sports was significantly slowed for a period of almost four years.
Grove City marked a major setback in the progress Title IX had made for women and girls. Roberts continued to support the program-specific approach, and even opposed the Civil Rights Restoration Act (CRRA), which restored Title IX to its pre-Grove City (institution-wide) status and was eventually passed in 1988. The law has since been pivotal in the successful enforcement of civil rights laws like Title IX.
B) Roberts Advocated Limits on Title IX’s Application to Athletics Governance Organizations (NCAA)
While in private practice, Roberts brought a case to the Supreme Court on behalf of the NCAA, arguing that it was not covered at all by Title IX. (3) The court agreed with Roberts, in part, ruling that the receipt of dues from member institutions that were subject to Title IX was alone insufficient to subject the NCAA to Title IX. (4) However, according to a report by the National Women’s Law Center, the court did not rule on Robert’s more “far-reaching” claim, that the NCAA be exempt from Title IX coverage altogether. “Because the NCAA effectively controls intercollegiate athletics, if this argument were to prevail there would be no recourse for any practices or policies of the NCAA that discriminate on the basis of sex, [race, national origin, disability, or age].” (5)
C) Roberts Urged the Denial of Full Remedies for Intentional Discrimination Prohibited by Title IX (Franklin)
As a Deputy Solicitor General, Roberts filed an amicus brief in Franklin v. Gwinnett County Public Schools that argued that victims of intentional discrimination should not receive any damages for the injuries suffered under Title IX. (6) The Supreme Court rejected Robert’s arguments and found that victims could recover monetary damages in Title IX cases. (7)
Franklin was a case regarding sexual harassment of an athlete by her coach. This position is particularly disturbing because monetary damages are sometimes the only form of relief available to the victims, who may have graduated by the time their cases reach a decision.
(1) Memorandum to the Attorney General from John Roberts, Special Assistant to the Attorney General, re “University of Richmond v. Bell” at 1-2 (Aug. 31, 1982).
(2) Grove City College v. Bell, 465 U.S. 555, 564 (1984).
(3) Brief of Petitioner at 26-28, NCAA v. Smith, 525 U.S. 459 (1999) (No. 98-84), 1998 WL 784591 (Nov. 10, 1998).
(4) NCAA v. Smith, 525 U.S. 459 (1999).
(5) National Women’s Law Center. Judge John Roberts’ Record on Protection From Sex Discrimination Under Title IX and the Equal Protection Clause. Aug., 2005.
(6) Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).
(7) Franklin, 503 U.S. at 75-76.
Scheduled on Thursday, September 15 for the hearings on Supreme Court nominee John Roberts before the Senate Judiciary Committee are two witnesses expected to testify on Title IX. From the witness list released by the Office of Senator Leahy:
Marcia Greenberger, President, National Women’s Law Center
Marcia Greenberger is the founder and Co-President of the National Women’s Law Center. The creation of the Center 30 years ago established her as the first full-time women’s rights legal advocate in Washington, DC. A recognized expert on gender discrimination and the law, Greenberger has participated in the development of key legislative initiatives and litigation protecting women’s rights.
* Update * Greenberger’s Testimony
Coach Roderick Jackson, Birmingham, Ala.
Roderick Jackson is a teacher and the Acting Head Coach of the girls’ basketball team at Ensley High School in Birmingham, Ala. After complaining to school officials about the tremendous disparity in resources and treatment between the girls’ and boys’ basketball teams, Coach Jackson was fired. Coach Jackson went to court to get his job back, and appealed all the way to the Supreme Court. In March, 2005, the Supreme Court decided the case in Coach Jackson’s favor. In a 5-4 decision in which Justice O’Connor wrote the majority opinion, the Court ruled that an individual can sue under Title IX to challenge retaliation against him or her for protesting sex discrimination. In its decision, the Court recognized that prohibiting retaliation is essential if Title IX — or any broad anti-discrimination law — is to provide effective protection against discrimination, and stated that the Title IX enforcement scheme would “unravel” if Jackson were not allowed to proceed.
Interested readers concerned with John Roberts’ record on Title IX should contact their Senators.
Sports Forum Podcast
Episode #29 – League of Fans’ Sports Forum podcast: The Honorable Tom McMillen Visits League of Fans’ Sports Forum – McMillen is a former All-American basketball player, Olympian, Rhodes Scholar and U.S. Congressman, and has a long involvement with the President’s Council on Physical Fitness and Sport (now called the President’s Council on Fitness, Sports and Nutrition). We discuss the state of college athletics today, given the pressures of NIL, the transfer portal, sports gambling and huge media contracts. McMillen then provides great perspective on the poor state of physical fitness our young people are experiencing today.
Listen on Listen on Apple Podcasts, Spotify, Google Podcasts, Anchor and others.
Follow on Facebook: @SportsForumPodcast
More Episodes on Apple Podcasts; Spotify; Google Podcasts; PocketCasts; & Anchor
Episode #28 – League of Fans’ Sports Forum podcast: A Chat With Mano Watsa, a Leading Basketball and Life Educator – Watsa is President of PGC Basketball, the largest education basketball camp in the world. We discuss problems in youth sports today.
Episode #27 – League of Fans’ Sports Forum podcast: Kids’ Sports: How We Can Take Back the Game and Restore Quality Family Time In the Process – Linda Flanagan is author of “Take Back the Game: How Money and Mania Are Ruining Kids’ Sports and Why It Matters.” We discuss how commercialized and professionalized youth sports are hurting kids and their families.
Episode #26 – League of Fans’ Sports Forum podcast: How Can We Fix Youth Sports? – John O’Sullivan is Founder and CEO of Changing the Game Project and author of “Changing the Game: The Parents Guide to Raising Happy, High Performing Athletes and Giving Youth Sports Back to Our Kids.”
Episode #25 – League of Fans’ Sports Forum podcast: Physical Education Should Be a Critical Component of K-12 School Design – Michael Horn is co-founder of the Clayton Christensen Institute for Disruptive Innovation.
Episode #24 – League of Fans’ Sports Forum podcast: Mental Health and Athletes: Ending the Stigma – Nathan Braaten and Taylor Ricci are the founders of Dam Worth It, a non-profit created to end the stigma around mental health at colleges and universities through sport, storytelling, and community creation.
Media"How We Can Save Sports" author Ken Reed appears on Fox & Friends to explain how there's "too much adult in youth sports."
Ken Reed appears on Mornings with Gail from KFKA Radio in Colorado to discuss bad parenting in youth athletics.
“Should College Athletes Be Paid?” Ken Reed on The Morning Show from Wisconsin Public Radio
Ken Reed appears on KGNU Community Radio in Colorado (at 02:30) to discuss equality in sports and Title IX.
Ken Reed appears on the Ralph Nader Radio Hour (at 38:35) to discuss his book The Sports Reformers: Working to Make the World of Sports a Better Place, and to talk about some current sports issues.
- Reed Appears on Ralph Nader Radio Hour League of Fans’ sports policy director, Ken Reed, Ralph Nader and the New York Times’ Tyler Kepner discussed a variety of sports issues on Nader’s radio show as well as Reed’s updated book, How We Can Save Sports: A Game Plan. Reed's book was released in paperback in February, and has a new introduction and several updated sections.
League of Fans is a sports reform project founded by Ralph Nader to fight for the higher principles of justice, fair play, equal opportunity and civil rights in sports; and to encourage safety and civic responsibility in sports industry and culture.
Vanderbilt Sport & Society - On The Ball with Andrew Maraniss with guest Ken Reed, Sports Policy Director for League of Fans and author of How We Can Save Sports: A Game Plan
Sports & Torts – Ken Reed, Sports Policy Director, League of Fans – at the American Museum of Tort Law
Order from Amazon
Order from Amazon
Order from Amazon
Ken Reed’s Author Page on Amazon