Legal muscle behind Title IX still flexing

The Chicago Public School District just got its sports programs schooled by a Hall of Famer. Not a sports star, mind you, but Marcia Greenberger, co-president of the National Women’s Law Center.

(Video: Greenberger describes her reasons for pursuing legal justice for women.)

Chicago has agreed to a settlement with the U.S. Office for Civil Rights resulting from a complaint filed by the Center in 2010 claiming that the city denies girls the sports opportunities it gives to boys. As a result, the District will have to create roughly 6,000 more opportunities for girls to engage in sports, affecting most of its 92 schools. The case is one example of Greenberger’s more than four decades of legal work on women’s issues, for which she is being inducted into the National Women’s Hall of Fame in October.

Personal experience with discrimination motivated Marcia Greenberger to focus on women's law.

Personal experience with discrimination motivated Marcia Greenberger to focus on women’s law.

The National Women’s Law Center had named Chicago and other school districts as the worst offenders of Title IX, the 1972 law that prohibits sex discrimination in educational institutions or programs receiving federal funds. (Earlier this year, New York City schools also were forced to agree to improve their sports for girls.) And since nearly 40% of Chicago’s students are African-American and 45% are Hispanic, girls of color especially were being denied the benefits of sports. A couple of insightful posts on the Title IX Blog applaud the Office for Civil Rights for not settling for excuses (after all, the law’s been on the books for more than 40 years) and point out that equalizing the number of opportunities alone may not be enough to create equity if there are financial barriers to sports participation for girls from low-income families.

But the win means that within a few years, 6,000 more Chicago schoolgirls could be kicking soccer balls, shooting hoops, swimming, or moving their bodies in other healthy sports.

Now, multiply that number by all the schools and colleges that Greenberger and the National Women’s Law Center have touched in all their years of fighting for Title IX, and you get a sense of the millions of women’s lives they’ve changed for the better. (Plus, education is only one area of the Center’s work.) It’s safe to say that the U.S. Women’s Soccer team would not have won the World Cup championship this year without them. Students would be unprotected from sexual harassment by other students; coaches and teachers who complain about discrimination against female students would be unprotected from professional retaliation — just two of the wrongs righted by the Center’s historic legal actions.

Ironically, Greenberger had wanted to be a historian, but turned to law school after a male professor dissuaded her from pursuing a Ph.D. in history because of her sex, she said in an interview. Many law firms in 1970, when she graduated, would not hire women as lawyers, only as clerks and other staff. Happily for history, the female staff revolted at the Center for Law and Social Policy, one of two public-interest law firms in the country, and made four demands: 1) Hire more female lawyers; 2) Focus some of the firm’s work on women’s rights; 3) Increase pay (because women’s work hadn’t been valued properly), and 4) Don’t expect women to serve coffee. In response, the firm — the Center for Law and Social Policy — hired Greenberger in November of 1972, four months after Title IX became law, to see if there was enough work on women’s’ issues to keep one lawyer busy full-time. “Busy” was an understatement, and in 1981 the project spun off as the National Women’s Law Center.

Soon after Title IX became law, Greenberger and other women’s advocates saw that political backlash against it was hindering the Office for Civil Rights (OCR) from issuing the regulations needed to implement and enforce it. So she sued in 1974, and worked with coalitions of women’s groups to influence the wording of the regulations and to defend Title IX from attacks. The OCR issued the regulations in 1975 but allowed 3 years to comply with the intercollegiate athletic regulations of Title IX in higher education. Most colleges and universities took this as a license to do nothing, and in 1978 they stalled further by saying they needed clarification on how to comply with Title IX in athletics. Again, the OCR seemed paralyzed, so Greenberger and her team threatened to charge them with contempt of court, and the clarifications were issued as a Policy Interpretation in 1979.

Greenberger and her team then filed the first broad-based lawsuit against a university regarding intercollegiate athletics under Title IX (Haffer v. Temple University). “At that point there was a certain innocence about saying things that, at a later point, people would become sophisticated enough to know they couldn’t say out loud even if they thought them,” she said. University officials, for example, argued that their sports program didn’t discriminate against women because women could join the football team if they wanted to, even though the school’s brochure described football as part of the Men’s Athletic Program, no women were on the team, and no women had football scholarships. The brochure simply described who was playing, not who could play, the university claimed.

“There was a wonderful district court judge,” Greenberger recalled. “The judge said, `You mean, when I pass a room that says Ladies and a room that says Men, that doesn’t mean that I should go into the Men’s room and not the Ladies room? It’s just descriptive of who happens to go in?’ He was not the least bit convinced by their argument.”

But before she could use the case to reach a broad settlement that might guide all colleges and universities, a separate case nearly shut Title IX down. Grove City College argued before the Supreme Court that Title IX should apply only to parts of education for which federal funds were earmarked (Grove City College v. Bell). If funds weren’t specifically for a sports team, it didn’t have to comply with Title IX. If a dormitory wasn’t build with federal funds, what happened in it wasn’t covered by Title IX. President Ronald Reagan’s administration declined to defend Title IX, and the Court ruled for Grove City College. “There were slews of complaints that were dismissed and not pursued by the Office for Civil Rights” after that, she said.

Again, coalitions of women’s groups geared up, this time joining advocates of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination Act (all of which also were affected by the Grove City case) to seek passage of the Civil Rights Restoration Act, which would make clear that if any part of a university or college got federal funds, the whole institution would be covered by these laws.

One of Greenberger’s assignments during the intense lobbying was to accompany tennis star Martina Navratilova to persuade Congresspeople to vote for the Act.

“I remember going to these offices prepared with all my legal arguments and all my factual arguments about the dorms and the craziness and that this couldn’t be what Title IX should mean, and all they wanted to do was have Martina look at the way they held their tennis racket and see if their grip was okay,” Greenberger said.

The tactic and the momentum worked, and Congress passed the Civil Rights Restoration Act over President Reagan’s veto in 1987. Battles over athletics and sexual harassment and other Title IX topics resumed.

Greenberger and her team are still at it, lately pushing for compliance around athletics in high schools, middle schools, and elementary schools and fighting to protect pregnant girls from being pushed out of schools. “There’s still, in 2015, not real compliance, even in athletics, with all of the attention,” she said.

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