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Policy Analysis of Title Ix of The Education Amendments of 1972

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Introduction

Tracing the trajectory of Title IX over 40 years, this paper argues that it does not perfectly fit into Kingdon’s thesis for agenda-setting. Although Kingdon’s multiple streams theory frames a comprehensive perspective to analyze how problems are defined and move to the government’s policy agenda, it does not explain enough on how ideas feed into the implementation process. This essay contends that policy is not only an output but also an implementation process that involves competition and negotiation among various groups. The implementation process of Title IX is an essential part of understanding its trajectory — how it is interpreted and expanded or contracted over the past 40 years. This paper starts with Kingdon’s theory of policy agenda-setting and its limitation, then highlights the roles of the Executive Branch and the Judiciary Branch in the enforcement and interpretation process of Title IX. Lastly, this paper discusses the conflicts that occurred during the policy implementation process between different parties.

Kingdon’s Multiple Streams Theory and Its Limitation

Admittedly, Kingdon’s multiple stream theory provides a useful framework to explain how one policy solution, Title IX of the Education Amendments of 1972, was adopted to solve the problems of sex discrimination encompassing sexual harassment and women’s unequal access to educational opportunities. Kingdon holds the idea that the policy windows open when the political stream, policy stream, and problem stream converge together. In other words, defined problems with feasible solutions and supportive political entrepreneurs are vital to the policy agenda-setting, which offers a sufficient explanation to the birth of Title IX.

The passage of Title IX was the result of the coupling of three streams. In the 1960s, feminists intensively advocated for eliminating sex discrimination in educational employment. At the same time, policymakers recognized a need to recruit more women to the faculty ranks as the number of colleges and universities grew remarkably. This recruitment created a larger conversation. A lecturer at the University of Maryland College Park named Bernice Sandler argued that sex discrimination in higher education employment demanded congressional attention. Congresswoman Edith Green held a hearing to investigate this situation, and then required legislation that would amend Title VII of the Civil Rights Act of 1964 to include employees of educational institutions. In 1972, President Richard Nixon signed Title IX into law. It declared that ‘no person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving Federal financial assistance.’

However, Kingdon’s theory of policy agenda setting is not without limitation. According to Peter, the multiple streams model is predominated by agenda-setting and does not explain how ideas feed into the implementation process and back again. This idea is exceptionally adaptable to the trajectory of Title IX over the past 40 years — the implementation process dominates most of its development, including its interpretation by the Judiciary Branch, its enforcement by the Executive branch, and emerging problems and conflicts as a result of the law enforcement.

Enforcement Activities by the Executive Branch

Kingdon downplays the role of Executive Branch in his policy agenda-setting theory. Compared to Congress, he argues that the Executive Branch does not play a significant role in policy agenda-setting because it does not possess as much political influence as the Legislative Branch. In the process of implementation, however, the Executive Branch is the leading actor. In the case of Title IX implementation, its monitoring and enforcement were assigned to the Office for Civil Rights (OCR) in the U.S. Department of Education.

According to Title IX regulations, the goal of OCR is to make ‘every effort with an educational institution to resolve violations of the civil rights law.’ To fulfill its job, OCR must respond to complaints and initiate monitoring actions concerning sex discrimination. Given its limited personnel and budget, OCR has almost exclusively focused on complaints instead of on compliance reviews. As a result, there is widespread consensus that OCR has been a weak enforcer of this law. It was not until 1987 that OCR completed a crucial document, ‘Title IX Grievance Procedures. An Introductory Manual,’ which is designed to assist schools in establishing Title IX complaint procedures. In the same period, OCR signed agreements with 17 agencies to conduct Title IX compliance reviews on their behalf.

The outcome of policy implementation by OCR is hard to define—there have been some improvements, but not enough. Since its passage in 1972, Title IX has had a profound impact on helping to change attitudes, assumptions, and behaviors and consequently, our understanding of how sexual stereotypes can limit educational opportunities. The statistics in a report showed declines from 1980- 82 to 1990-92 in the number of dropouts among high school girls who had become pregnant. It also presented data showing that more girls were taking algebra, geometry, and chemistry. The OCR report expressed satisfaction that by 1994, 38% of women were earning medical degrees compared to 9% in 1972, and 43% of the women were earning law degrees in 1994 compared to 7% in 1972. It also noted that although there had been an increase in the doctor rates women earned in science from 9% in 1973 to 20% in 1993, fewer women were obtaining their doctorates in math and physical science (where 17% were women), computer science (14%), and engineering (7%).

Ten years later, according to a document published by the National Coalition of Women and Girls in Education taking stock of Title IX on its 35th anniversary, the policy outcome was not enough. Among several shortcomings, the fact that women were still severely underrepresented as students and faculty in the fields of physics, computer science, and engineering is most pressing. The authors attributed this underrepresentation to ‘biased career counseling, gender stereotypes, unequal treatment by teachers, sexual harassment, and other discriminatory practices.’

Based on the analysis, we could conclude that although the implementation power is mainly at the hands of the ORC, the poorly funded and weakly staffed system limits its monitoring and enforcing ability. According to Poulantzas, administrative procedures and routines give state bureaucrats ‘relative autonomy’ in the policy-making process. Kingdon also argues that state bureaucrats enjoy the ‘freedom’ of implementing laws because of their permanent positions and long-term expertise. However, this seems not to be right with OCR, which is the central bureaucracy behind Title IX. There is no evidence that OCR constituted a self-conscious, semi-autonomous group. Since the OCR head is a political appointment, its degree of enforcement largely depends on how the political leader of the country perceives the gender equity problem at the time.

Judicial Interpretations of Title IX

Kingdon’s policy agenda-setting theory does not shed much light on the importance of the Judiciary branch, either. Title IX could be viewed as one of the most concise law. Its interpretation, in contrast, is far from simple. The judgment of everyday actions by the Judicial Branch is nuanced and complex. Title IX has generated several interpretations by judicial bodies at district, state, and federal levels. Issues that are now well defined, such as whether Title IX covers educational employment, are the products of lengthy efforts in earlier years. The trajectory of Title IX shows a twisting path from inception in 1972 to the present. It experienced periods with interpretations that have broadened its scope and with setbacks that limit its adaptation. Major legal disputes that reached the level of the U.S. Supreme Court and culminated in decisions that expanded or strengthened Title IX such as:

  1. Jackson v. Birmingham Board of Education (2005; 544 U.S. 167), in which the Court prohibited retaliation against those who report sex discrimination, a decision considered to encourage victims and witnesses to come forward.
  2. Equity in Athletics Inc. v. Department of Education (2011), in which the Supreme Court declined to hear this case that challenged the use of the OCR three-part test for compliance with athletics.

Other U.S. Supreme Court decisions have curtailed or made ambiguous the reach of Title IX. Chief among them is: National College Athletic Association v. R.M. Smith (1999; 525 U.S. 459), in which the Court decided that dues paid to the NCAA from institutions that received federal aid did not make the NCAA an entity that could be sued under Title IX because the law applies only to institutions that receive federal funding directly.

To sum up, compared with the Executive Branch, the Judicial Branch is assuming a measure of autonomy. The most critical decisions in terms of Title IX by the Supreme Court do not support the opinion that a consistent judicial branch is set on supporting the suppression of women through patriarchal structures. Instead, legal judgments that oscillate between restricting and expanding the reach of Title IX are indisputable. Through the Court’s decisions, concepts such as sexual harassment, equal opportunity, individual right to redress, right to financial compensation, and freedom from retaliation are gradually incorporated into the scope of interpretation of Title IX. Thus, the Judicial Branch of the state has broken some entrenched rules set in the patriarchal system through its autonomy of interpretation of laws.

Conflicts and Challenges

Kingdon’s policy agenda-setting theory views policy as an output by focusing exclusively on how problems move to policy agenda. However, he fails to elucidate the dynamic within the policy cycle — new problems emerge during the policy implementation process, and then go back to the policy cycle again to search for new solutions or refinement of the current one.

Athletics has long been one of the most controversial provisions of Title IX. OCR issued guidelines such as the ‘three-part test,’ which identifies three different ways for schools and universities to show obedience to promote non-discriminatory treatment in the educational system. This ‘three-part test’ consists of three parts: enrollment for intercollegiate sports for male and female students are provided in numbers proportionate to their respective enrollment; opportunities have been expanded where members of one sex are underrepresented; and the present program has fully and effectively accommodated members of the underrepresented sex. However, groups that challenge Title IX and its regulations have complained that it functions as an illegal quota system. Moreover, they also argue that schools have had to sacrifice men’s interests in order to meet these ‘quotas’ for female athletes, such as eliminating wrestling, gymnastics, and other men’s sports. They have challenged the guidelines through litigation and pressure upon political officials, but the government has retained and continued the application of Title IX to sports.

Another recent challenge to Title IX has been the reemergence of single-sex schools and classrooms. Title IX allowed single-sex classes for specific purposes such as contact sports, instruction in human sexuality, and remedial or affirmative activities to decrease sex discrimination. In 2006 under the G.W. Bush Administration, the Department of Education issued regulations permitting non-vocational single-sex education, which, from the perspective of many Title IX supporters, ‘do not have adequate safeguards to ensure that sex-segregated schools, classes, or activities will not increase sex discrimination’. This challenge has been perceived by many feminists as an adverse trend of the process of gender equality.

Conclusion

Based on the analysis, this paper recognizes that policymaking is not only an output, but more importantly, it is a dynamic implementation process with different parties to negotiate and compete with each other. This paper highlights two central bodies in the policy interpretation and implementation process of Title IX — the Executive branch and the Judiciary Branch. Moreover, the implementation process generates new problems at the same time because of various reasons, such as the opposition by groups who lose part of their vested interest because of the new policy or regulation. Then these problems go back to the policy agenda-setting again to meet new solutions or refinement of the current policy. To sum up, policy agenda-setting is only a starting point of the whole policy cycle, so Kingdon’s policy agenda-setting theory has its limitation and cannot entirely explain the trajectory of Title IX over the past 40 years.

References

  • Goulden, M., Frasch, K., & Mason, M.A. (2009, November). Staying competitive. Patching America’s leaking pipeline in the sciences. Berkeley: Center for American Progress and UC Berkeley School of Law.
  • Hutchens, L. & Townsend, B. (2000). Gender equity in collegiate sports: The role of athletic associations. In J. Glazer-Reymo, B. Townsend, & B. Ropers-Huilman (eds.), Women in Higher Education. A Feminist Perspective (pp. 181-191). Boston: Pearson Custom Publishing.
  • John, P. (1998). Analyzing public policy. London: Continuum.
  • NCWGE. (1997). Title IX at 25. Report card on gender equity. Washington, D.C.: National Coalition for Women and Girls in Education.
  • NCWGE. (2008). Title IX at 35. Beyond the headlines. Washington, D.C.: National Coalition for Women and Girls in Education.
  • Poulantzas, N. (1974). Political power and social classes. London: New Left Books.
  • Sandler, B. (2007). Title IX: How We Got It and What a Difference It Made, Cleveland State Law Review, 55(4), 473-489.
  • General Accounting Office (GAO). 2001. “Intercollegiate Athletics: Four_Year Colleges’ Experiences Adding and Discontinuing Teams.” Washington D.C.: GAO_01_297.

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