Episode 30: Title IX - History and Impact with Val Bonnette

SUU President Scott Wyatt and Steve Meredith speak with Val Bonnette, the President of Good Sports Inc., a Title IX and Gender Equity Specialist consulting firm based in San Diego, California.

Full Transcript

Steve Meredith: Hi again everyone, and welcome to Solutions for Higher Education, a podcast with Scott L Wyatt, the President of Southern Utah University in Cedar City, Utah. I'm your host, Steve Meredith, and joining me in-studio today, as always, is President Wyatt. Hi, Scott.

Scott Wyatt: Hello, Steve, thank you.

Meredith: We're excited to have with us an out of town guest joining us through the miracles of technology. Why don't you go ahead and introduce her?

Wyatt: So, it's our delight to have Val Bonnette with us today. Val, how are you this afternoon?

Val Bonnette: I'm doing great, President Wyatt. How are you doing?

Wyatt: Val is the President of Good Sports Inc., which is a Title IX and Gender Equity Specialist consulting firm based in San Diego, California, and I think that's where we're speaking to you from, right?

Bonnette: Yes.

Wyatt: Why don't you tell us how you became involved in Title IX? I think you've been working in Title IX issues in about 40 years, haven't you?

Bonnette: [Laughs] Yes, I started at the Office for Civil Rights of the Department of Education—the U.S. Department of Education—in 1977 as a summer intern and then on a permanent basis from 1980 to 1994. And since 1994, I have been consulting with education institutions on how to comply with the athletics provisions of Title IX.

Wyatt: Well, 40 years in the industry, the first decade or so in the Civil Rights Office…that's about as good of experience as one could have.

Bonnette: Well, I would hope so. [Both laugh] Yes, we were refining the policy when I was in OCR headquarters in Washington, D.C. I worked in the policy development division, so with the Title IX athletics requirements, we were refining existing policy, developing new policy for some of the nuanced issues, and trying to do what we could to guide OCR investigators in conducting their investigations of complaints of sex discrimination in athletics programs.

Wyatt: So, I think that most of our students would have no knowledge of where Title IX came from. I think Steve and I both remember back to the days when there was, in our high schools or junior high schools, a large boy's gym and then a teeny little girl's gym, and almost all of the athletes were males. Why don't you lead us off here by telling us where Title IX came from?

Bonnette: Well, I think that a wave of social unrest that was going on in the 50s, 60s, and 70s civil rights marches and demonstrations for minority and women's rights led to the major landmark civil rights legislation in 1964—the Civil Rights Act of 1964—and within the next decade or so, it was an extraordinary time for civil rights legislation. Title IX of the Education Amendment was issued in 1972, section 504 of the Rehabilitation Act in 1973, and the Age Discrimination Act in 1975. They all became law during this timeframe. But it was just the minority and women's rights demonstrations demanding their fair share of the American dream.

Meredith: So, Val, when you and I were chatting earlier, I had mentioned the fact that my primary recollection during those years, which was when I was in high school or junior high, was that the Title IX discussions focused primarily on the discrepancy between men's and women's athletics, and that that was what was fixed in my mind from that time. But you had shared with me that in fact, athletics was tacked on almost at the end and that the legislation actually had very little to do with athletics but that it really moved to the front burner once that became tacked on. Would you go a little bit into that?

Bonnette: Well, the Title IX Statute, the law written by the United States Congress, is actually one sentence which basically says, "Ye shall not discriminate on the basis of sex in federally funded education programs." But the primary author of Title IX was congresswoman Patsy Mink of Hawaii, and I had the privilege of hearing her speak about Title IX in 2002 during a 30th anniversary celebration. She said that in the 1950s, she was denied access to medical school because of her gender. And in what I call a great case of "don't get mad, get even," she managed to get into law school. I read somewhere that she thinks that her first name "Patsy" was interpreted by law school admissions staff as a man's Irish name. [All laugh] But she completed law school, got elected to congress from the state of Hawaii, and wrote a law saying that you cannot deny access to academic courses based on gender. I've also had the privilege of hearing Senator Birch Bayh of Indiana speak about Title IX. And Senator Bahy was the senate sponsor, and the said he thought his wife was rather intelligent. It didn't' make any sense to him that she should be denied access to academic courses such as engineering or whatever because of her gender. So, the main impetus for writing Title IX was access to academic courses, not athletics. And it didn't really become clear that athletics was going to become part of this until 1974 when the Office for Civil Rights, where I used to work, the Office for Civil Rights had the duty to draft the regulation to implement the statute. And in the draft regulation that came before Congress in 1974 contained provisions on athletics programs. And when that happened, all hell broke loose on Capitol Hill. [All laugh] Congress heard testimony that Title IX would be the end of college sports as we have known them. Well, I think that the individuals testifying to that may have missed the mark somewhat, don't you? [All laugh]

Wyatt: They certainly have. It seems that it has really enriched college sports.

Bonnette: Quite a bit, I would say. [Laughs]

Wyatt: It's interesting thinking this through, because for our students today, the thought that a woman could not get into an engineering program or a law school would probably be shocking to most of them. None of them were born in the 1970s. None of them were born in the 1980s.

Meredith: Yeah. Starting this year, none of them were born in the 19s. [All laugh]

Wyatt: That's right, that's right.

Bonnette: Goodness. Yeah…goodness.

Wyatt: So, it seems like we have the opportunity to academic programs is almost forgotten now because it seems to be so automatic. We're recruiting, we're doing special programs to motivate female students to study in the science, technology, engineering, math areas…but maybe the one part of this that universities still struggle with is in athletics.

Bonnette: I think that's true. Yeah, Title IX has had quite an impact on the access to course offerings issue. In 1972 I think like 10% of the medical students may have been women. 14% were law school students. Those numbers are about half now—half the medical and law school students are women these days. So, it's had a dramatic impact in that area. But, let's face it, athletics is the area where discrimination has been, by far, the most entrenched, and it's just taking a while for people to understand what Title IX requires and then comply with it.

Wyatt: Yeah.

Meredith: Val, you mentioned when we chatted earlier that about a three-part test. Would you go into that just a little bit about…to see if a university is in compliance with athletics? That there's a three-part test that you would administer? That you would ask them about?

Bonnette: Right. Title IX is a federal Civil Rights law, and all Civil Rights laws basically have two requirements, which are 1) equal access to get into the program, whether it is an education program, job opportunity, trading program, what have you, and then 2) equivalent treatment of those who have gained access to the program. So, I'm sure you can figure out that if you cannot gain access to the program, that the treatment issues are kind of irrelevant because people don't have the opportunity to become a participant. Well, the Title IX athletics policies follow the same approach as all Civil Rights laws, with an equal access provision and then treatment provisions. So, the three-part test is the policy dealing with do female and male students have an equal opportunity to become participants in the education program that is intercollegiate athletics? So, the three-part test is, in my opinion, the most important thing to comply with. From there, there are 12 other areas dealing with issues such as scholarships, coaching, facilities, recruitment, team travel, equipment, scheduling, and a handful of other issues. But the three-part test allows schools three different ways to comply when offering an equal opportunity for women and men to become intercollegiate athletes, and it begins with the premise that if men and women participate in the athletics program at the same rate or proportion in which they are enrolled at the institution, then compliance is presumed, which is, this is test one, the proportionality test. And what that means is if women as 52% of the full-time undergraduates, then 52%, or something very close to that, of the intercollegiate athletes should be women. Now, if an institution does not meet test one—and by the way, only about a third of the colleges and universities out there are trying to meet test one—but if a school is not meeting test one, then there are two other ways for administrators to show that their actions have not caused the underrepresentation of students of one sex. Now, in athletics programs, when someone is underrepresented, it is nearly always women.

The other two ways to comply, test two, what I call program expansion, is a matter of showing that you've continued to try to expand the program to the underrepresented sex, namely women, as their interests and abilities have developed and evolved. Unfortunately, there aren't any clear policies on just how many opportunities and in what timeframe constitutes compliance with test two. What most institutions are trying to comply with is test three, full accommodation of the underrepresented sex. And in English, what that means is that a school that's offering every team for women—assuming again that women are underrepresented—every team for women for which there is sufficient interest and ability for a viable team and sufficient competition for that team in the area where the institution normally competes. So, a school only needs to meet one of those three tests. It can choose which test it meets, and it can even change which test it meets from one year to the next.

Wyatt: Yeah, so let's look at a scenario here. If all of the high schools in the area around our university offer women's softball, and our university does not offer softball, it's possible that…we actually do offer softball and have a great program…but that would be an example where there's possible an interest and a need or a demand and all of these opportunities that we're not giving.

Bonnette: Well, correct. I mean, the Title IX policies require meeting the interest of your current students. So, in doing an analysis of whether there is sufficient interest for a team that you're not currently offering, someone would look at your club sports program, your intramural program, even elective physical education programs depending on whether they're advanced courses, that sort of thing. And then from there, if you spend the resources to recruit athletes—you spend money to have your coaches travel to go recruit, you award athletic scholarships, that sort of thing—and then, indeed, you start looking at the high school participation in the areas where your coaches normally recruit. Now, for Division I institutions, that are is usually a concentration of five or six states, and that becomes your normal recruitment area. Although, of course, coaches may be recruiting from most of the states in the United States and even outside of the United States, but there is a normal recruitment area where most of your coaches travel for recruitment and pay for transportation costs for prospective athletes to come to campus. So, you would look at basically all of those things that would demonstrate interest.

Wyatt: This third-part test is fairly complicated?

Bonnette: It is fairly complicated. [Laughs]

Wyatt: I know here at Southern Utah University, we occasionally do interest surveys from our students to try to assess how we're doing, and that tells us things that we wouldn't know if we didn't go out and ask.

Bonnette: Right. And that can be at another indication of interest. So, it's usually the club sports program where you start the analysis. Club sports teams are usually a higher skill level than intramural programs. Club teams are often competing against teams from other schools. So, there's a level of interest and a level of skill that tends to be in club sports programs that may not quite be there in intramural programs. And obviously if the club sports programs have your own students in it, this is a demonstration of interest. Whether they actually have the interest to participate in intercollegiate athletics verses club sports is something that would need to be determined.

Wyatt: What do you think is the main barrier for schools complying with Title IX?

Bonnette: Lack of knowledge, unfortunately. I think most administrators want to comply with the Title IX athletics provision, and in my experience, even administrators from years ago who did not particularly support athletics and did not particularly support women's athletics, they say they did not want their institution to be in violation of federal civil rights law. So, on that basis alone, they were ready to comply. But I think the lack of accurate information out there about how to comply is still the major reason why we don't have widespread compliance.

Wyatt: How much of an issue is trying to put all of the resources into the sports that will bring the most attention to the school?

Bonnette: Well, I can certainly understand that that's what a lot of institutions want to do. Obviously with NCAA Division 1 programs, particularly the Football Bowl Series program, schools are able to earn a lot of revenue in offering those teams. It's understandable from the outside looking in that they might want to be able to continue earning that revenue, etc. Title IX is not particularly moved by that desire to run a business in the athletics program. [All laugh] I mean, whether a school is doing that is totally the choice of the institution, but whatever choices institutions make about the type of program to have, the extent of it, the sports to offer, coaches, facilities, etc., that does not change the obligation to comply with Title IX. The obligation is still there.

Wyatt: Yeah, it might be one of the impediments to compliance, depending on the motivations of the school. You know our Athletic Director, Debbie Corum.

Bonnette: I do.

Wyatt: We hired Debbie Corum, who is doing a fantastic job by the way, we hired her from UConn where she was the Senior Women's Administrator at the University of Connecticut. They have distinguished themselves, I think, in women's athletics. Brought a lot of notoriety to their school.

Bonnette: They have, and there are certain coaches who are obviously quite gifted and wind up winning a lot of national championships and at UConn, obviously the women's basketball team has gotten to be legendary at this point in time.

Wyatt: That's right.

Bonnette: Pat Summitt did pretty much the same thing at the University of Tennessee.

Meredith: Yeah.

Bonnette: Shall we be seeing Southern Utah University in the championship podium in a year or two for women's basketball? [All laugh]

Wyatt: We hope so. We have reasons to be optimistic about that.

Bonnette: Excellent.

Wyatt: we're certainly trying, and we've seen a lot of changes in the last little while. Where do you think this all…if you could look back 40 years of your time from working in the Civil Rights Office to being a consultant…if you were to look forward 5 or 10 or 15 or 40 years or whatever amount of time your crystal ball allows you to see, what do you think our challenges are going to be in the future? Our opportunities and challenges going forward?

Bonnette: In complying with the Title IX athletics provisions, you mean?

Wyatt: Yeah, or if you see any evolution in the Title IX provisions for athletics?

Bonnette: Well, I think things are breaking down slowly in terms of the entrenched discrimination that has gone on so many years against women in athletics. We've made some very large strides in even the 20 years or so that I've been consulting. In the mid-1990s, I would be reviewing programs where half the women's teams would not be receiving benefits comparable to men's teams. So, women's teams would have…would not have as many assistant coaches as men's teams, half the women's teams were going in vans instead of busses or going on busses instead of flying to away events. Half the women's teams did not have the practice schedules that they preferred, did not have the practice uniforms that they should have had, so half the women's teams were having programs in six or seven of the treatment areas under Title IX. These days, what I'm seeing is one or two women's teams with very minor issues having challenges with complying with Title IX, and I think it still would constitute a violation because you wind up having a pattern and practice of discrimination in civil rights parlance, where you've got minor issues in four or five or six areas, so I think we've made a lot of progress, but obviously we're not there yet. What may be happening in the next several years, I think there are more women getting involved in running athletics programs, maybe a little more in tune to wanting to keep track of whether there are compliance concerns in their programs and may be a little faster about dealing with them. I think you're also dealing with a lot of male athletic directors who have daughters participating in athletics programs now, and they don't want their daughters being discriminated against. Have the changes been fast enough? Well, no. Nobody of my generation is certainly satisfied with that. But I do think slowly we will get there with athletics programs. My regret about 40 years ago was that the agency where I worked was not more aggressive about educating administrators on what their obligations were and how to comply. But then, of course, as you know, President Wyatt, being an attorney, attorneys, bureaucrats have their own language and unfortunately, they don't necessarily speak the same language as education administrators. So, even if OCR had been explaining the Title IX athletics policy at length, there still might have been a communication gap there.

Wyatt: That's right, we all kind of have a tribal language.

Bonnette: [Laughs] We do.

Wyatt: The language of our own little worlds and it makes it kind of hard.

Bonnette: Yes.

Wyatt: So, I'm thinking back, Steve and Val, and I don't hear anyone complaining about Title IX for sports.

Meredith: No, not currently.

Wyatt: I don't think that I've…maybe when I was in high school I heard comments made, but for 10 or 20 or so years, I don't think I've heard anybody complain. And Val, you give us some real positive thoughts when you say that you think that the biggest challenge is not motivations, not that we're trying to spend more money on men's sports because they bring more dollars in or that they get more attention for the university, but what you're saying is the main reason that schools are not complying with Title IX is simply because they don't understand the rules completely. It's an education issue.

Bonnette: Right, that's my opinion. And I think that's been true for many years. That if institutions understood what they needed to do and why, that schools would be complying much more so than they are now.

Wyatt: How much of a compliance issue do you think we have in America today?

Bonnette: Well, certainly not as significant a compliance issue as there was 20 years ago. It's still pretty widespread, and every once in a while, I get quite surprised by seeing significant compliance issues on a particular campus. In the last couple of years in working with some of the high school programs out there, I'm not quite sure the high school athletics administrators and educators of America are getting quite as much education as seems to be happening in the post-secondary programs. So, obviously there's a much smaller network in post-secondary education about what you need to do and why and I think when someone goes through the experience of a review or, heaven forbid, an OCR investigation, because those are no fun, they wind up telling their colleagues about it, and that word gets around a lot faster than the similar sort of thing at the high school level.

Wyatt: Well, it sounds like we have a positive view of the future. That as we continue to increase education, we're going to see continued compliance, but for the most part, America has bought into this and everybody is striving to get the equality that they want for all of the reasons that you've said.

Bonnette: I agree.

Wyatt: We all have daughters and sons and sisters and brothers, and we just want everybody to have a fair shot at it. At our school, we have considerably more female students than male students, and it's not unusual that our female students are actually graduating at slightly higher rates than the male students too. So, it's kind of an interesting dynamic to think of when we talk about equal opportunities.

Bonnette: It is, particularly when you consider that back in the 1960s, even public institutions of post-secondary education were prohibiting women from even enrolling. [Both laugh] Now, when we have a situation where higher proportions of the graduating class are women than men, it's quite a change.

Wyatt: Yeah. Well, this has been a delightful conversation. Thank you so much for giving us of your time and spending your whole career working on promoting civil rights opportunities, equal opportunities.

Bonnette: Well, my pleasure. Thank you for having me.

Meredith: You've been listening to Solutions for Higher Education, a podcast featuring Scott L Wyatt, the president of Southern Utah University. Scott and I have been joined today by Val Bonnette, who is the President of Good Sports Inc., a Title IX and Gender Equity Specialist firm in San Diego, California.  Thanks again for joining us, we'll be back again soon. Bye bye.