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Contrary to rumors on campus and in the local press, Cynthia Pemberton did not set out in 1992 to destroy the long-honored football team of Linfield College, a small liberal arts school in Oregon. Instead, the Assistant Athletic Director for Women's Sports wanted to make athletic opportunities equally available to both women and men-simply to make the college comply with the law. Her six-year crusade for full implementation of Title IX made headlines across the nation. Here is Pemberton's autobiographical account of what would become the ordeal of her life.
When Pemberton first arrived at Linfield in 1989, she accepted the logic that the more lucrative men's sports earned male players preferential treatment. Men's teams were outfitted at the college's expense, but Pemberton began noticing that the women often had to buy their own equipment and shape their practice and facility use schedules around the men's sports. Also, scant resources were available for the recruiting and coaching of women athletes. It became clear that their success would always be limited unless policies changed.
The author recounts her steps in prodding Linfield to gender awareness and then to justice. For six years, Pemberton endured harassment from her supervisor, attempts to derail her professional development, and smear campaigns in local newspapers, while her supporters on campus faced intimidation. She had come to the brink of financial ruin and psychological exhaustion by the time her lawsuit against the college was settled.
The struggle for gender equity in sport is far from over, but Pemberton leaves a legacy for women athletes, their coaches, and school administrators. Her book conveys bold determination and is rich with insights into the workings of the legal system and academic bureaucracy. It will enlighten anyone who pursues educational and social change — and teach a new generation of women not to take their rights for granted.
"If a fish were an anthropologist ..."
I came to Linfield College in the early summer of 1989. Originally, I had no interest in the job. The job advertisement was for a facility director, swim coach, and instructor. At the time I was married, living in Reno, busy working my six different coaching and teaching jobs (at least half of which were full-time jobs by themselves), and taking doctoral classes at the university. In one of my classes I was doing a project on the interview process, and when a couple of opportunities presented themselves, they seemed to provide a valuable perspective, enabling me to write my term paper while being an interviewer (serving on a search committee in the university athletic department) and an interviewee (applying for the job at Linfield). As far as I was concerned I was applying as part of a class assignment, with no intention of actually pursuing the position. One thing led to another: I became an applicant, interviewed, turned down the first offer, and, after some negotiation, accepted the position.
Although it meant living apart from myhusband and taking a considerable pay cut, there were many reasons why it seemed to make sense. First, it was an opportunity to work just one job in one place. This was something that greatly appealed to me. It was also an opportunity to work full-time in academics. And for me, it was moving home. I'd grown up in Oregon. My mother and sister were living in the Portland area; and although it would be a bit of a commute, I would be able to live with my mother and keep expenses to a minimum. The pieces fell into place, and in June 1989 I left Reno towing a U-Haul.
Within the first week of the job, the women's athletic director resigned, and I presented myself to the athletic director stating my interest in the vacated position. Shyness has never been one of my traits. I felt I was qualified for the job and eager for the challenge. After some administrative rearranging, I became the assistant athletic director for women's sports, aquatics director, head women's and men's swim coach, and an instructor in the Health, Human Performance, and Athletics Department (HHPA). It would be another year before my position was again changed and reclassified as tenure track, which meant I was no longer an instructor but an assistant professor. To say I was pleased and excited would be an understatement. I had a keen interest in academics as well as athletic administration and leadership. I felt I'd landed exactly the job I wanted.
It wasn't long into my early years at Linfield that my marriage began to unravel. As I look back, I think the chance to escape my marriage was an underlying motivation to take the Linfield job in the first place. I'd been with Michael off and on since I was seventeen. We'd gone to college together, swum together, and basically grown up together. Our marriage was a working partnership. We'd coached and taught swimming together in Virginia and Nevada. It was in many ways an ideal match, but it was also an impossible match. We were simply too much alike. Too often it was like having two captains trying to steer the ship, both entirely capable, willing, and able, and both highly competitive, stubborn, and domineering, often to a fault.
Professionally, I don't think I could have been happier. I've always been a hard worker and an overachiever. Those first years at Linfield were wonderful and fed my insatiable need to be challenged. I was enamored with my job, especially coaching, and readily put in the work needed to excel.
I loved working with college athletes and enjoyed coaching both women and men. I worked like a crazy person. I'd leave for work at 4:30 in the morning and come home between 10:00 and 11:00 at night. Most of the time I worked six to seven days a week, and I thrived on it. In just a few short years, the Linfield swim program grew from a fledgling start of two women and four men, with no national qualifiers, to one of the premier small-college programs in the country. It was an exciting time.
In my role as assistant athletic director, I was left to my own devices. For the most part, the athletic director (Ad Rutschman) was preoccupied with coaching football, and what time and attention he had to spare were directed toward administering the men's sport programs. Even though I was technically his assistant, we operated independently. We'd meet periodically; I went to him with questions from time to time, but for the most part he left me to do the job of administering and directing women's athletics, which was fine with me.
I don't work well when I feel I'm being controlled. I am a self-starter and an independent worker. I'm good at solving problems and figuring out how to get something done, whom to contact, what resources are needed, and how to get them. I like being given general guidelines about what is to be accomplished and then turned loose to do it. For a while that was Ad's and my mode of operation and, as a result, early on we were quite compatible. It wasn't until a few years later that I realized our relationship was dependent upon my willingness to agree with him, and didn't have much to do with compatibility.
An early example of my willingness to agree with Ad involved a discussion about athletic shoes. The question was whether I had a problem with the men's basketball team being given team shoes while the women's team had to buy their own. I don't remember whether the shoes were being donated, or whether the department was going to purchase them. What I do remember was my response. I said, "If and when the women's basketball team starts making money, they too can have shoes, but until then as long as the men's programs are making the money, it's okay with me that they get more." It's embarrassing. No, it's more than embarrassing; it's appalling that I thought, said, and believed those words. That was me then.
I'd spent my athletic life benefiting from Title IX, and I hadn't had a clue it existed, let alone what it was about. I wasn't a women's sports advocate; I was one of women's sports' worst nightmares, and I didn't even know it.
I'd swum on my high school swim team (1972-76), then been recruited to swim in college (1976-80). It never occurred to me that women hadn't always had opportunities to participate on high school teams and compete in college sports. I didn't know that the opportunities I enjoyed were in all likelihood a result of Title IX, a 1972 civil rights statute designed to address issues of educational equity.
As I look back, it seems odd that I never questioned why I swam in three different nationally affiliated intercollegiate championships: the Association for Intercollegiate Athletics for Women (AIAW), the National Association for Intercollegiate Athletics (NAIA), and the National Collegiate Athletic Association (NCAA). I didn't know that this competitive upheaval represented the bloody aftermath of a gender-equity war waged against women's sport governance.
Since its inception, the NCAA and NAIA had opposed Title IX. By the late 1970s, after efforts to lobby Congress and legal challenges failed to limit Title IX's applicability, the NCAA, and to a lesser degree the NAIA, embarked on a mission of merger and acquisition to gain control of women's sports. It never dawned on me that Willamette switched national athletic affiliations because the AIAW, the smaller and financially weaker women's sport organization, was being driven out of existence by the NCAA and NAIA.
I knew nothing of the history of women's sport, how recently the opportunities I enjoyed had come about, or that in response to Title IX, in large measure, women's sport leadership and self-determination (the AIAW) would be lost. Undeniably Title IX resulted in gains for women in sport, but those gains came at a price.
As a university swim coach at Nevada--Reno, I hadn't realized that Title IX was the reason I was able to recruit and offer female athletes scholarship money. In fact, in the mid-1980s the university athletic program was facing budget cuts and the two women's sports under consideration for being dropped were softball and swimming. I remember putting together a case, based on performance outcomes and success, that addressed why swimming should be spared the ax. Swimming was spared and softball was the women's sport eliminated. This all took place during the time that a Supreme Court decision called Grove City v. Bell had effectively limited Title IX compliance to school programs that were direct recipients of federal funds. As most athletic programs were not direct recipients, schools felt comfortable ceasing women's sport program expansion efforts and even making cuts. Fortunately, in 1987 Congress overrode the Grove City decision and, over a presidential veto, enacted the Civil Rights Restoration Act. This act effectively put the Title IX umbrella back over all programs in an education institution.
I'd been a female athlete, and later a college coach, riding the wave of Title IX, and I hadn't known it existed.
Title IX is fairly succinct and direct. It states simply: "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."
Originally, athletics wasn't even a part of Title IX; it had been quietly added, as more of an afterthought, by Oregon congresswoman Edith Green. According to Indiana senator Birch Bayh, a Democrat and the principal Senate sponsor of Title IX, it was put forth as "a strong and comprehensive measure [that would] provide women with solid legal protection from the persistent, pernicious discrimination which [was] serving to perpetuate second class citizenship for American women." In other words, Title IX was designed to proactively address the historical wrongs associated with culturally embedded gender discrimination and thereby ensure gender equity in educational opportunities, such as admissions, housing, and scholarships. It just so happened, thanks to Edith Green, that it also included athletics.
The legislative and legal evolution of Title IX has come to include rules and regulations, policy interpretations, a 1980 Office of Civil Rights (OCR) Investigator's Manual, clarifications and interpretations by the OCR, and a barrage of women's sport court cases in which women have predominately prevailed.
The Office of Civil Rights is the chief governmental agency responsible for enforcing Title IX. The ultimate consequence for noncompliance is the loss of all federal funds. This includes student financial aid, which would effectively shut down almost any college or university. The reality, however, is that Title IX compliance, assessed based on athletic financial assistance, the accommodation of athletic interests and abilities, and equity in "other" program areas, has most often been enforced in response to legal action brought by female student-athletes and their parents. To date, the OCR has never levied the ultimate consequence.
According to Title IX, athletic scholarship dollars must be allocated in amounts that mirror athletic participation numbers. In reality, allocating scholarship dollars in amounts reflective of existing participation is not terribly progressive and does little to encourage growth in women's sports.
With regard to the accommodation of interest and abilities, Title IX prescribes compliance with one of three conditions. An institution must (1) demonstrate that its athletic participation opportunities for females and males are provided in numbers substantially proportionate to its enrollment; or (2) show a history and continuing practice of program expansion that is responsive to the developing interests of the underrepresented sex (typically women); or (3) demonstrate that it is fully and effectively meeting the expressed interest and abilities of the underrepresented sex (again, typically women). This compliance area has been, and continues to be, a topic of heated debate.
What has come to be called the three-prong test originated not with a group of rabid militant feminists, as some would like to believe, but with the National Collegiate Athletic Association (NCAA) and the American Football Coaches Association (AFCA). Women wanted things split down the middle and shared equally between boys and girls, women and men. The NCAA and the football coaches' association came back instead with the three-prong test and the notion that meeting any one prong would translate into compliance. When the three-prong test was adopted through the Federal Register Rules and Regulations and Policy Interpretations, according to Donna Lopiano--cited in a March 2001 Ms. Magazine article, "Title IX: The Little Law That Could"--the men thought they'd walked away with a win.
In the early 1970s men made up the majority of college students (more than 60 percent), so, from a men's sport perspective, the proportionality prong didn't pose a threat. Prong two, a history and continuing practice of program expansion, seemed vague and flexible enough to provide schools with a compliance deadline that could stretch on almost endlessly. Finally, there was, and to a degree still is today, the perception that females aren't as interested in sports as males, so prong three, full and effective accommodation of expressed interest and abilities, wasn't considered an issue.
Impact on the status quo would have been minimal if it weren't for the fact that over the past thirty years females have been enrolling in colleges and universities in ever-increasing numbers. Today, over half of all college and university students are women. As a result, the proportionality prong no longer serves to maintain a male-dominated status quo. Even so, despite a few hard-fought cases, the Title IX front remained relatively quiet between the late 1970s and 1992.
The reality is that law only sets general policy. Therefore, if the consequences for breaking the law can be tolerated or avoided, laws don't compel action. It wasn't until 1992, the twenty-year anniversary of Title IX, that decisions in two landmark court cases, Franklin v. Gwinnette County Public Schools and Tyler v. Howard University, changed the climate of Title IX litigation.
The Franklin case involved teacher-student sexual harassment in a K-12 setting. One outcome of the case was that for the first time, the court ruled that plaintiffs could sue for damages under Title IX. Similarly, the Tyler case was the first decision that made clear that employees could sue and win damages under Title IX. The dog could now bite as well as bark.
The combined effect of changing college and university demographics and the potential for damage awards opened the floodgates of Title IX litigation. And the three-prong test was, and remains today, the center of the controversy. One case in particular, Cohen v. Brown University, explored the application of the three-prong test.
In the Brown case, the debate revolved around whether Brown University could define proportionality on its own terms. In a cost-cutting move, Brown decided to eliminate two women's sports and two men's sports (gymnastics and volleyball, golf and water polo, respectively). Brown's idea of proportionality was grounded in the notion that females have less interest and ability in sport than males. Therefore, Brown reasoned that schools should be allowed to incompletely accommodate interest and ability, as long as they did so in proportion to sex-based levels of expressed interest. For example, if there were 200 men and 100 women who wanted to play sports, Brown's interpretation of proportionality would mean that if, say, 80 percent of the men and women (that is, 160 men and 80 women) were provided opportunities, compliance would be achieved.
The courts didn't buy this argument, calling Brown's perception of Title IX "myopic" and stating that "Brown reads the 'full' out of the duty to accommodate fully and effectively." Ultimately, after a series of appeals that ended with the Supreme Court's refusal to hear the case, Brown was found in violation of Title IX.
Excerpted from More Than a Game by Cynthia L. Pemberton Copyright © 2002 by Cynthia L. Pemberton. Excerpted by permission.
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