John Roberts v. Title IX

Background:

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.

References:

(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.
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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.
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Take Action:

Interested readers concerned with John Roberts’ record on Title IX should contact their Senators.