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Colleges and Universities

Gender Discrimination

Segregated Public Institutions The Equal Protection Clause does not require states to satisfy the same strict standards for gender discrimination as for RACIAL DISCRIMINATION. Whereas states are held to a "strict scrutiny" requirement with regard to racial discrimination, they need only demonstrate that discrimination on the basis of gender substantially furthers an important government purpose.

The men-only policies maintained by the Virginia Military Institute (VMI) and the Citadel, of South Carolina, have been challenged throughout the years by women seeking admission. In the early 1990s, the U.S. Court of Appeals for the Fourth Circuit considered two unrelated cases that challenged the legality of men-only public colleges: Faulkner v. Jones, 51 F.3d 440 (1995), cert. denied, 516 U.S. 910, 116 S. Ct. 331, 133 L. Ed. 2d 202 (1995), and UNITED STATES V. VIRGINIA, 44 F.3d 1229 (1994), cert. granted, 516 U.S. 910, 116 S. Ct. 281, 133 L. Ed. 2d 201 (1995) (hereinafter VMI).

The same court reached two different results in VMI and Faulkner, because Faulkner involved an individual plaintiff who had sought admission to the Citadel, whereas VMI was brought by the DEPARTMENT OF JUSTICE and did not involve a particular student.

In Faulkner, the Court required the Citadel to admit the plaintiff, Shannon Faulkner, because Faulkner was a "real live plaintiff." The court explained that, although admission to the school was the only appropriate remedy in a case involving a live plaintiff, the state might later develop a parallel program, as recommended in VMI, or adopt a coeducational policy.

In VMI, the court held that because "homogeneity of gender" was integral to the type of

Shannon Faulkner sued for and won admission to The Citadel, a previously men-only public college. She is shown here (center) with other new cadets during orientation on August 12, 1995.

leadership education provided at VMI, maintaining a men-only college substantially furthered the legitimate public purpose of providing unique leadership education. It then held that the establishment of a separate-but-parallel, state-sponsored women's college with substantially the same goals as VMI's would satisfy the requirements of the Equal Protection Clause. Faulkner withdrew shortly after the school year began, putting an end to any possible appeals in her case. However, the Court did hear the government's appeal from the VMI decision and held that Virginia's categorical exclusion of women from VMI denied equal protection to women (United States v. Virginia, 116 S. Ct. 2264). The Court agreed that gender-based classifications are not completely forbidden by the Equal Protection Clause, but it stated that Virginia had failed to provide "exceedingly persuasive justification" for excluding women from VMI. In addition, the Court held that the separate-but-parallel women's college that Virginia had proposed violated the Equal Protection Clause, terming the women's college a "pale shadow of VMI" in terms of its educational and leadership opportunities.

Title IX Eight years after Congress enacted Title VI of the Civil Rights Act of 1964, it amended the act to extend protection against discrimination in federally funded programs to include gender. Title IX of the Education Amendments of 1972 parallels Title VI and has been used to attack gender discrimination in such diverse areas as admissions, scholarships, discipline, and SEXUAL HARASSMENT. For example, in Sharif v. New York State Education Department, 709 F. Supp. 345 (S.D.N.Y. 1989), a federal district court held that the state of New York could not use Scholastic Aptitude Test (SAT) scores as its sole criterion for awarding college scholarships, without violating Title IX. Because girls scored an average of 60 points lower on the test than boys did, and because the SAT was not, and did not purport to be, a measure of past performance in school, the court ruled that its use had a discriminatory effect on the awarding of scholarships without bearing any relationship to a reward for successful performance in high school. In Yusuf v. Vassar College, 35 F.3d 709 (1994), the U.S. Court of Appeals for the Second Circuit held that a private college may have discriminated against a male student who allegedly sexually harassed a female student, by systematically applying different and stricter standards to sexual harassment proceedings than to other disciplinary proceedings. And in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992), the U.S. Supreme Court held that Title IX also prohibits sexual harassment in educational institutions and that teachers who sexually harass or abuse students discriminate on the basis of sex in violation of Title IX.

Title IX's most visible effect has been in college athletics. Most colleges and universities operate men's and women's athletic programs, some of which participate in intercollegiate competitions administered by the National Collegiate Athletic Association (NCAA). Title IX caused a great deal of concern when first enacted, as many schools were concerned that they could not remedy unequal participation by men and women in various athletic programs without going to considerable expense or cutting successful programs to achieve gender equality. These schools also were uncertain about the degree of equalizing that would be necessary in order to avoid lawsuits.

In response, the Department of Health, Education, and Welfare (now the Department of Education) established a three-part test for determining whether an institution is complying with Title IX with respect to its athletic program. An institution has accommodated the interests of male and female students if it satisfies any of the three benchmarks:

… intercollegiate-level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

Where the members of one sex have been and are underrepresented among intercollegiate athletes, … the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

Where members of one sex are under-represented among intercollegiate athletics and the institution cannot show a continuing practice of program expansion, … it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program (44 Fed. Reg. 71,418 [1979]).

The balance between a university's interest in maintaining a profitable and successful athletic program and its need to comply with Title IX is a delicate one. In Kelley v. Board of Trustees, 35 F.3d 265 (1994), the U.S. Court of Appeals for the Seventh Circuit addressed a typical case involving these competing interests. In Kelley, the men's swim team at the University of Illinois sued the university for violating Title IX after the school cut the men's, but not the women's, swimming program in an attempt to eliminate unprofitable athletic programs and to reduce its budget deficit. Although neither swim team was popular with spectators, and both programs were historically weak, the university did not cut the women's program because its legal counsel advised that doing so would violate Title IX. The court ruled that eliminating the men's program, but retaining the women's program, did not violate Title IX even though the school treated the two programs differently.

Although Title IX continues to have many critics, the effect that it has had upon women's athletics is practically unquestioned. Twenty-four years after the enactment of Title IX, the number of female athletes at the Olympic Games in Atlanta had risen to 287. The interest among spectators was almost startling, especially because women's athletics had suffered for years in order to garner support. About 65,000 fans watched the women's soccer team in 1996 win the gold medal, and another 35,000 spectators watched the women fall in the finals of the softball competition.

Interest in women's sports continued to increase throughout the 1990s. Although several professional women's basketball leagues had been established, few were successful. This changed in 1997 with the establishment of the Women's National Basketball Association (WNBA), which garnered support from the established National Basketball Association. The league has had unprecedented success, maintaining contracts with television networks that show the games. The focus on women's athletics expanded to a national scale in 1999, when the United States women's soccer team won a stunning victory in the World Cup competition. Neither the men's nor the women's soccer teams had had success in world-class competition, and the women's victory transformed many of the female athletes to celebrity status.

Few question that these events would have occurred were it not for Title IX. Women's college basketball, probably the highest-profiled sport for female athletes, typically receives equal attention as the corresponding men's programs. Likewise, softball and soccer have gained popularity among individual schools as spectator sports. Nevertheless, college and universities continue to pour extensive resources into larger men's program, especially football and men's basketball.

Many athletic departments note that these men's programs earn more revenues based upon a much larger fan base, so the support is justified. Athletic departments often chose to drop minor men's sports instead of adding women's sports, citing the budgetary constraints. Advocates for women's programs counter that cutting the budgets of these programs would not likely hinder the revenues significantly and that it would allow athletic programs both to add women's programs and to retain smaller men's programs.

Policies under the administration of President GEORGE W. BUSH have come under fire from supporters of women's athletics. During his campaign, Bush stated his opposition toward any racial or gender quotas, and some felt that this policy could cause conflict with Title IX. In 2002, the secretary of education established the Commission on Opportunity in Athletics, which issued its final report on February 28, 2003. Although the commission found that opportunities should be improved for all competitors, women's groups claimed that the report undermines the importance of improving opportunities for women's programs specifically.

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