Tuesday, July 21, 2009

Nixon and Title IX: Aides "minimize these changes to the extent the law permits us"

Here's something we learn from the latest release of documents by the Nixon library: The Nixon administration watered down Title IX in response to "NCAA objections... to an earlier leaked draft."

Casper Weinberger's "proposed regulation," which he described in this recently released memo, "has been drafted in such a way... so as to minimize the impact on existing competitive athletic programs." Most importantly, Weinberger added language to say that "Nothing in this section shall be interpreted to require equal aggregate expenditures for athletics for members of each sex." That way, unequal spending in college athletics would not be seen as discriminatory, and remedies for discrimination could be fashioned that fell far short of requiring public institutions to fund men's and women's athletic programs equally. While complying with anti-discrimination law, these new rules allowed Nixon's staff to "minimize these changes to the extent the law permits us to do so."

Instead of framing this change as a capitulation to the NCAA, Nixon's aides described the watering down of Title IX as a feminist act. Or, at least, a kind of paternalism meant to prevent "serious backlash against women's rights."

No doubt there would have been a backlash against women's rights if the government had required equal or even comparable funding for women's athletic programs. And no doubt Title IX still proved important. It empowered women across the country to demand that the law be enforced.

But the Title IX that became law limited government support for women, and thus let a number of discriminatory practices go unchallenged unless large enough groups of grassroots activists organized themselves in opposition. Like he had on racial politics, Nixon thus deferred enforcement of anti-discrimination laws to the courts, which had wide latitude to issue decrees but almost no administrative apparatus to oversee them. The upside from this is that it provided women's rights activists with greater tools to organize for change. The downside is that it put the burden of change on them, not on those who practice discrimination-- thus leaving discriminatory practices and attitudes in place that Title IX was never intended to eliminate.

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