The origins of Title IX

Thirty-seven words have sustained a legacy over the past 50 years.

When U.S. Sen. Birch Bayh authored the words: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," Title IX came into being.

Bayh, a Democrat representing Indiana, was hopeful the federal legislation would have an impact, but even he couldn't foresee what was to come.

Bayh, who died in 2019 at the age of 91, was able to witness the impact of his work. So much so, that out of all the political accomplishments he had in his career, Title IX was the legislation he was most proud of.

"He always said this is his single greatest achievement," said Jay Berman, who was a member of Bayh's staff from 1965-76, including being chief of staff his final two years of working for the senator. "We didn't think Title IX would have the impact that it has had on sports. But he was just as concerned about women not having the opportunity to play sports as he was about not being able to get into medical school or law school."

Bayh, who played baseball at Purdue and competed as a Golden Gloves boxer, could list legislative accomplishments that include being the only lawmaker since the founders to author two amendments to the U.S. Constitution. The 25th Amendment on presidential and vice-presidential succession and the 26th Amendment that lowered the voting age from 21 to 18 were penned by him.

He also co-authored the Bayh-Dole Act, which revitalized the nation's patent system, and was the primary architect of the Juvenile Justice Act, which mandates the separation of juvenile offenders from adult prisoners.

Bayh's inspiration for Title IX came from his wife, Marvella, who died in 1979.

Marvella Hern grew up in Oklahoma and was an outstanding student. One of her favorite people she studied in history was Thomas Jefferson, who founded the University of Virginia.

Marvella wanted to attend Virginia, but her application was returned: "Women need not apply." 

When Bayh was named the co-recipient of the NCAA Gerald R. Ford Award at the 2006 NCAA Convention that celebrated the Association's 100-year anniversary, he told the NCAA News: "We spent 26½ years together with Marvella teaching me about what it was really like being a woman in a man's world. Without her, I know I wouldn't understand the importance of this legislation."

Berman said Marvella Bayh would inform her husband about the discrimination that women faced, and since they faced it in education, women ended up having few professional opportunities in the workforce.

How Title IX came into being

In the two years preceding the passing of Title IX, debates about discrimination against women and education were raging in Congress.

During this era, U.S. Rep. Edith Green, of Oregon, who held hearings in the House Education Committee, and Bernice Sandler of the Women's Equity Action League were two prominent women leading the movement for equality.

Bayh was an advocate, as well, and in 1971 he tried to make an amendment to the Education Act. However, Sen. Strom Thurmond, of South Carolina, raised an objection and asked for a parliamentary inquiry as to whether the amendment was germane.

The parliamentarian ruled that since sex was never mentioned in the Education Act, it wasn't germane, stalling the amendment. Undeterred, Bayh came back in 1972 and introduced the Title IX provision.

Bayh and his staff made a legislative deal with Sen. Jim Eastland, a Mississippi Democrat and the chair of the Senate Judiciary Committee, to help bring the Equal Rights Amendment to a vote.

Through negotiations, the Equal Rights Amendment was passed in March 1972, sending it to the states for ratification, and Title IX later became law June 23, 1972 with the Education Amendments.

Green and Rep. Patsy Mink, of Hawaii, championed the Title IX legislation in the House.

Working in a bipartisan way to pass legislation in Congress may sound impossible in this age of political divide.

"Our system isn't the problem; it's the people in the system," Berman said. "The rules and process haven't changed, but it is the people in it and how they use the rules and process."

Bayh and Green also made the decision to ask women's equality organizations to not lobby Congress to help get the legislation passed, the rationale being that drawing more attention could also bring opposition.

"They didn't want to wake the bear," Berman said. "It was an incredibly strategic move, and it worked. If you look at the U.S. Supreme Court decisions regarding Title IX, the justices look at the history and one person is cited, and that's Birch Bayh. They ask the question, what did Birch Bayh mean when he wrote those 37 words?"