Document 4: Bernice R. Sandler, "'Too Strong for a Woman'--The Five Words that Created Title IX," About Women on Campus, Spring 1997, National Association of Women in Education, pp. 23-28.

   In 1997, the 25th anniversary of passage of Title IX, the law that finally barred sex discrimination in educational programs, Bernice Sandler once again captured her memories of how she worked through the Women's Equity Action League to pursue sex discrimination complaints on behalf of academic women. By now, enough time had passed that she could identify more of the people who had helped her, including Vincent Macaluso, of the U.S. Department of Labor's Office of Federal Contract Compliance. Sandler also revealed that a friend had used a copying machine at the Ford Foundation to duplicate copies of her complaints to distribute to the press and Capitol Hill.

   The passage of time had broadened Sandler's perspective on the changes she helped to bring about, and given her an appreciation of how long it takes for real change to occur.

[p. 23]

"TOO STRONG FOR A WOMAN"
THE FIVE WORDS THAT CREATED
TITLE IX

by Bernice R. Sandler

    The year was 1969. I had been teaching part time at the University of Maryland for several years during the time I worked on my doctorate and shortly after I finished it. There were seven openings in the department and I had just asked a faculty member, a friend of mine, why I was not considered for any of the openings. It was not my qualifications; they were excellent. "But let's face it," he said, "You come on too strong for a woman."

    My reaction? I went home and cried. I had no idea that this rejection would not only change my life, but the lives of millions of women and girls because it led ultimately to the passage of Title IX, the law that prohibits sex discrimination in educational institutions receiving federal dollars. Instead, I bemoaned the fact that I had spoken out at staff meetings with suggestions for improving procedures. I lamented the times that I had discussed teaching and professional issues with faculty members. I regretted my participation in classes as a graduate student. In short, I accepted the assessment that I was "too strong for a woman."

    It was my then husband who helped me understand what the words "too strong for a woman" meant. He correctly labeled the department's behavior as "sex discrimination," a label that started me thinking. Was this really a question of my being "too strong"? After all there were many strong men in the department. Yet the label of "sex discrimination" was a new one for me, and I was not ready to apply it to my not getting the position at Maryland. Like many women at that time, I was somewhat ambivalent about the women's movement and halfway believed the press descriptions of its supporters as "abrasive," "man-hating," "radical," and "unfeminine." Surely I was not like that.

    In the next few months I had two more similar rejections. A research executive who interviewed me for a position spent nearly an hour explaining why he wouldn't hire women: because they stayed at home when

[p. 24]

    Although, in retrospect, I would later discover other instances of sex discrimination in my life, at that point I had not consciously noticed it. Yet here were three incidents within a short period which I could not rationalize away. I began to think about the ramifications of discrimination and the burgeoning women's movement and to explore how the law treated sex discrimination. Knowing that sex discrimination was immoral, I assumed it also would be illegal.

    But this was 1969. Although sex discrimination was indeed illegal in certain circumstances, I quickly discovered that none of the laws prohibiting discrimination covered sex discrimination in education. Title VII of the Civil Rights Act, which prohibited discrimination in employment on the basis of race, color, religion, national origin and sex, excluded "educational institutions in their educational activities," meaning faculty and administrators were exempt. Title VI of the same act prohibited discrimination on the basis of race, color and national origin in federally assisted programs, but did not cover sex discrimination. Thus, students were not protected against sex discrimination. The Equal Pay Act prohibited discrimination in salaries on the basis of sex, but exempted all professional and administrative employees, including faculty. The Fourteenth Amendment to the Constitution assures all persons "equal protection of the laws," but at that time no case involving discrimination against women in education had ever been decided in favor of women by the Supreme Court.

    I began to read more about the civil rights movement to see what Blacks had done to break down segregated school systems and employment discrimination, with the hope of learning what might be applicable to women's issues. The breakthrough occurred when I was reading a report of the U.S. Commission on Civil Rights, which examined the impact of antidiscrimination laws on race discrimination. The report described a presidential Executive Order prohibiting federal contractors from discrimination in employment on the basis of race, color, religion and national origin. There was a footnote, and being an academic, I quickly turned to the back of the report to read it. It stated that Executive Order 11246 had been amended by President Johnson, effective October 13, 1968, to include discrimination based on sex.

    Even though I was alone, I shrieked with my discovery. I had made the connection that, since most universities and colleges had federal contracts, they were forbidden from discriminating in employment on the basis of sex. Yes, there was a legal route to combat sex discrimination, even though few people knew it at the time.

    I called the Office of Federal Contract Compliance at the Department of Labor to be certain that sex discrimination was covered by the Executive Order. I was immediately connected to the Director, Vincent Macaluso[A], who had been waiting for someone to use the Executive Order in regard to sex discrimination. We met, and together we planned the first complaint against universities and colleges, and the strategies to bring about enforcement of the Executive Order.

    Two months later, under the auspices of the Women's Equity Action League (WEAL), I began what was

[p. 25]

    Until that time the Executive Order had been used almost exclusively in cases concerning blue-collar workers, and although the Order had covered sex discrimination since October 1968, there had been virtually no enforcement by the government until WEAL began its campaign.

    The WEAL complaint charged "an industry-wide pattern" of discrimination against women in the academic community and asked for an investigation of admission quotas, financial assistance, hiring practices, promotions, and salary differentials.

    At Macaluso's advice, I put together about 80 pages of documentation to accompany the complaint. I included some articles and the limited data available, including a study of women faculty at the University of Chicago written by Jo Freeman, then a graduate student in sociology; and a study of women faculty at Columbia University by the Columbia Women's Liberation group. I also included similar data I had gathered at the University of Maryland, posing as a researcher. I underlined key passages in the documentation with a thick pen to catch the attention of anyone leafing through the materials.

    With the help of a friend at the Ford Foundation, 200 copies of the 80-page complaint were photocopied and sent to the press and others. Macaluso had suggested that copies of the complaint and appendix also be sent to selected members of Congress, along with a handwritten note requesting that they write the Secretary of Labor asking him to enforce his own regualations governing the Executive Order, investigate educational institutions holding federal contracts to ensure that there was no sex discrimination, and keep the member informed of the progress of the investigations. Within a few weeks, more than 20 members of Congress had contacted the Secretary of Labor.

    In the next few months, the limited press coverage about WEAL's filing began to electrify women throughout the academic community, particularly when they realized I could file charges against their institution without naming them. Many women faculty contacted me, sometimes with personal stories of discrimination, but almost always with a concern about the general problem of discrimination at their institutions. In order for me to file against their institution under the Executive Order, I would ask the women to gather information, especially about the number and rank of men as compared to women in a few selected departments. I then compared this information to data about the "availability of women," usually the number and percentage of women doctorates in those fields. The result was striking: many departments had no women at all, even though women often obtained as many as 25 percent of the doctorates in those fields. The pattern was clear: the higher the rank, the fewer the women. The more prestigious the field, department, or institution, the fewer the women. At the administrative ranks, women were a rarity; at that time even many women's colleges were headed by men. I used to quip that, were it not for the Catholic sisters who headed their own women's colleges, the number of whooping cranes would exceed the number of women who were college presidents.

    With the exception of the first charge, which was filed by the President of WEAL, I filed the others as chair of WEAL's Action Committee for Federal Contract Compliance in Education. (I was the entire committee.) During the next two years, I filed charges against approximately 250 institutions. Another 100 or so were filed by other individuals and organizations, such as the National Organization for Women (NOW). Among the institutions charged by WEAL were the University of Wisconsin, the University of Minnesota, Columbia University, the University of Chicago, and the entire state university and college systems of California, New Jersey and Florida.

    But simply filing charges would not be enough to get the federal government to begin enforcing the Executive Order. As women provided me with information and I filed against their

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    On March 9, 1970, Rep. Martha Griffiths (MI) who was on WEAL's national advisory board, gave the first speech in the U.S. Congress on discrimination against women in education, based in large measure on the data I gave her. She criticized the government for not enforcing its own regulations with regard to sex discrimination in universities and colleges. Her speech, the barrage of Congressional letters to the Secretaries of Labor and HEW, and the numerous meetings women's organizations such as WEAL and NOW had with the Departments paid off. Three weeks later, the first contract compliance investigation involving sex discrimination began at Harvard University. In June 1970, the Department of Labor issued its long awaited Sex Discrimination Guidelines for federal contractors, and HEW issued a memorandum to all field personnel requiring them to routinely include sex discrimination in all contract compliance investigations. HEW also hired its first female compliance investigator.

    But something else was happening in the months following the initial complaints. Rep. Edith Green (OR) (also a number of WEAL's national advisory board) had long been aware of sex discrimination in higher education, and the lack of coverage by civil rights laws. As chair of the subcommittee that dealt with higher education, she was in a unique position to shape new legislation. Rep. Green had been urged to hold hearings by Phineas Indritz, a Congressional staff member who "dabbled" in civil rights issues, but she was hesitant to do so because there was little data available and apparently no constituency on whom she could count to testify.

    It was a time when there were no books and only a few articles that addressed the issue of discrimination against women in education. No conferences had been held to examine the issue. There was little research or data and barely a handful of women's studies courses. There were no campus commissions on the status of women, and only a few institutions had even begun to examine the status of women on their campuses. Women's caucuses in the disciplinary organizations were just beginning to develop. The issue of sex discrimination in education was so new that I received many letters from women and men asking me if it was true that such discrimination existed and, if so, would I send them proof.

    With all of the WEAL filings I sent to her, Rep. Green now had information about sex discrimination in higher education. Because I knew almost everyone actively working to end discrimination in education, I was able to provide Rep. Green with a list of people who could testify and provide the information needed to justify new legislation or prohibit sex discrimination. She agreed to draft legislation and hold hearings.

    The first Congressional hearings on the education and employment of women were held by Rep. Green in June and July of 1970. This was the official beginning of the bill that eventually became Title IX. The original bill, part of a larger measure on higher education, proposed to amend Title VII of the Civil Rights Act to cover employees in educational institutions, Title VI to cover sex discrimination in federally assisted programs, and the Equal Pay Act to cover executives, administrators and professionals.

    I supplied the names of women (and some men) who would be willing to testify and the names of relevant organizations. I also testified. Because the original bill covered employment in general, there was a wide array of testimony documenting discrimination in employment, the professions, the civil service, want ads, and education. No one from the official world of higher education testified, although they were invited to do so. A representative of the American Council on Education told the Committee counsel that "there was no sex discrimination in higher education," and even if it did exist, it wasn't a "problem." Apparently, Rep. Green's bill was not seen as being of much interest to, or having any major implications for, educational institutions.

    There were seven days of hearings. Except for Rep. Green, who was in attendance throughout the hearings, only a few subcommittee members made short, token appearances. Federal officials testified that they supported the aim of the bill, but not the bill "in its present form"--a euphemism for opposition. Women employed in educational institutions across the country testified in support of the hill and provided data. Rep. Shirley Chisholm (NY) (another

[p. 27]

    When the hearings were finished, I was asked by Rep. Green to join the committee staff to put together the written record of the hearings. (Thus I became the first person ever appointed to the staff of a Congressional committee to work specifically in the area of women's rights.)

    The seven days of hearings resulted in a two-volume set of nearly 1300 pages. Because there was so little written about women in employment and education, I appended numerous documents. This appendix material, which represented a sizable portion of information available at the time on women, included 14 studies of women at colleges and universities. As a result, the hearing record became a solid source of information about women for some time to come.

    Usually only a few hundred copies of hearings are printed, but Rep. Green received permission to print 6000 copies. She sent copies with a note to every member of Congress. I drew up a list for her to send copies to prominent organizations and individuals in higher education, and the press.[B]

    The widespread distribution of the record of the hearings, the charges against institutions and the notes sent to Congress by women all over the country set the stage for support of legislation to end the sex discrimination in education. The hearings probably did more than anything else to make sex discrimination in education a legitimate issue. When administrators or faculty members would deny the existence of sex discrimination in academe, women (and men) could point out that this was not a frivolous issue and Congress itself had held days of hearings on this important subject. Thus the hearings, as well as the continuing filings of charges against institutions under the Executive Order gave women throughout academe hope and courage to become advocates for women and change within their institution. Higher education itself, even before passage of Title IX, began to acknowledge that there was some validity to the issue, and numerous institutions appointed committees to study the problem and develop recommendations for their campuses.

    At some point after the hearings, higher education began to recognize that the bill might affect their institutions. Representatives from Harvard, Princeton, Yale and Dartmouth were concerned that they might have to admit women in equal numbers. (The first three institutions had recently admitted women, but had strict quotas restricting their numbers to about 30 percent; Dartmouth was planning to admit women in the near future.) These institutions lobbied successfully for an exemption in the bill for private undergraduate admissions, claiming that different sex ratios were best for learning, and individual institutions knew what the best ratios were. Of course there was no data to support these allegations, but these institutions and their alumni in the Congress were powerful. The amendment stood, although Rep. Green made sure that once students of both sexes were admitted to an institution, there could be no discrimination against them. The amendment also meant that men's and women's colleges would not be prohibited from remaining single-sex institutions. There was no opposition to this provision. The service academies also were exempted.

    The bill was ably managed in the Senate by Sen. Birch Bayh (IN) who was also a member of WEAL's national advisory board. A few people noticed that athletics might be affected by the bill, so there was discussion on the floor of the Senate about whether the bill required educational institutions to allow women to play on football teams. Having inserted that notion into the legislative history, higher education retreated, apparently unaware until much later that Title IX would have a profound impact on athletics, even if women were kept off football teams.

    Because colleges and universities had only a rudimentary understanding of the problem of sex discrimination at the time, the higher education community apparently believed it had taken care of what they saw as the major impacts of the bill--undergraduate admissions and football. Higher education did not lobby for or against the bill, and because it was attached to a higher education measure, the elementary and secondary education community also was largely unaware of the bill.

[p. 28]

    Also unnoticed in Rep. Green's bill was the amendment to the Equal Pay Act, which opened up coverage to administrators, professionals and executives. Because the wording of the bill was artfully crafted by Morag Simchak (a WEAL member at the Department of Labor)[C]--it was phrased as a technical amendment-- it was difficult to realize, from a quick reading of the amendment, what it did. As a result, the Department of Labor, which has enforcement responsibility for the Equal Pay Act, was unaware until after passage that its jurisdiction was to be significantly expanded.

    As the bill drew close to passage, a group of women (including myself) who represented women's organizations, met with Rep. Green to offer our lobbying services. She informed us that it would be better it we did not lobby because there was no opposition to the bill, and the less that people knew about it, the better its chances were for passage. We were skeptical, but she was absolutely right.

    In the spring of 1972, two years after the hearings, a portion of Rep. Green's original bill became law when Title VII of the Civil Rights Act was amended by Congress in a separate action to cover all employees in educational institutions. Initially, Rep. Green had also sought to amend Title VI of the Civil Rights Act (prohibiting discrimination on the basis of race, color and national origin in all federally funded activities) to include sex discrimination. However, at the urging of African-American leaders and others, who were worried that opening Title VI for amendment could weaken its coverage, she proposed a separate and new title, which became Title IX. In its final form, Title IX was identical to Title VI, except that Title IX was restricted to educational activities, contained additional exemptions, and included the amendment to the Equal Pay Act. On June 23, 1972, Title IX of the Education Amendments of 1972 was passed by Congress, and on July 1 was signed into law by President Richard Nixon.

    The historic passage of Title IX was hardly noticed. I remember one or two sentences in the Washington papers.[D]

    It would be another three years before the regulation for Title IX would be issued, and yet another year before it would take effect. By then, higher education and the country understood that Title IX was going to change the landscape of higher education forever.

    The entire WEAL campaign had cost a few hundred dollars in postage and hours and hours of time from women in academe, who patiently and painstakingly gathered and analyzed data about men and women in their institutions, pressed their Representatives and Senators for action, organized together, and became advocates for change. They are the unsung heroes of this story. They took enormous risks. Many did not have tenure and, as a result of their activities, never received it and were lost to the higher education community. Some became lawyers or found other successful careers. A few went on welfare.

    It was the words "too strong for a woman" that turned me into a feminist, although I did not know it at the time. I have often wondered what would have happened had I been considered for a position at Maryland. I might still be a part-time faculty member. Title IX, or something like it, eventually would have been enacted, but probably in a weaker version, with more exemptions because of subsequent backlash.

    For myself, I had no idea what I was getting into. I had no legal, political or organizing experience and no idea that the political and legal action I began would force open the issue of sex discrimination on campus. I was extraordinarily naive; I believed that if we passed Title IX it would take only a year or two for all inequities based on sex to be eliminated. After two years, I upped my estimate to five years, then to 10, then to 25. I finally realized we were trying to change very strong patterns of behavior and belief, and that would take more than my lifetime to accomplish.

    The struggle for educational equity is by no means over, despite the enormous progress that has been made. As women look to the future with greater understanding of the politics of change, their mood is best expressed by a paraphrase of a famous Biblical quotation, written by Mary Chagnon:

And they shall beat their pots and pans into printing presses,

And weave their cloth into protest banners,

Nations of women shall lift up their voices with other women,

Neither shall they accept discrimination anymore.

    Because of Title IX, the campus has changed irretrievably, and the world of higher education and, indeed, the nation will never again be the same.

    Sandler is a Senior Scholar in Residence at the National Association for Women in Education, where she writes the newsletter About WOMEN on Campus and consults with and speaks at educational institutions. She has written extensively about sex discrimination, including sexual harassment, and often serves as an expert witness in cases involving educational institutions, governmental organizations, and businesses.

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A. Sandler, and later stories that quoted her, referred to Macaluso as "director" of the Office of Federal Contract Compliance. However, other contemporary sources identify him as "assistant director for construction" of the office. (See, for example, "American Women at the Crossroads: Directions for the Future; Report of the Fiftieth Anniversary Conference of the Women's Bureau of the Department of Labor," June 11-13, 1970, Washington Hilton, Washington, D.C.)
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B. The Michigan Daily, the campus newspaper at the University of Michigan, was among the press outlets that received a copy of the hearing record.
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C. Morag Simchak, who served with the Labor Department's Office of Federal Contract Compliance and the Employment Standards Administration during this period, was considered the department's leading expert on the Equal Pay Act.
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D. For example, on June 24, 1972, The Washington Post, covered the bill signing with a story on Page A4 headlined, "New Programs to Make Mark on Education." However, the story focused primarily on federal funding for education. The last sentence in the second-to-last paragraph noted, "New bans on campus sex discrimination also are included."
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