The Supreme Court, Title IX and Gender Equity

by Roberta McCutcheon

Background

The Supreme Court of the United States is the highest court in the federal judicial system and has both original and appellate jurisdiction. Historically, the Supreme Court’s most influential role has been through the exercise of judicial review. The court’s power to declare acts of the legislative and executive branches unconstitutional, and therefore null and void, has enabled Supreme Court Justices to act as policy makers.

Title IX is a United States law enacted on June 23, 1972, that states: “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.” Looking at the issues and concerns that prompted Congress to pass gender equity legislation will enable students to debate the significance of judicial review and the Supreme Court regarding interpretation and reinterpretation of the Constitution and the laws of the United States.

Objectives

  • Students will be able to identify terms associated with the appellate jurisdiction of the Supreme Court of the United States.
  • Students will be able to analyze landmark Supreme Court decisions and identify the impact of the Supreme Court on the Constitution and law in the United States, as the justices exercise the power of judicial review.
  • Students will research and gain an understanding the history of the gender assumptions and issues that led to passage of Title IX of the Educational Amendments in 1972.
  • Students will be able to identify arguments related to gender equity, as well as the substance of the challenges to the law after its enactment.
  • Students will participate in the legislative and judicial process through a mock Congressional hearing and a mock appeal before the Supreme Court.

Student Exercise One: Understanding the Supreme Court’s Appellate Jurisdiction

Have the students define the following terms: jurisdiction (original and appellate), plaintiff, standing, civil law, criminal law, class-action suit, writ of certiorari, brief, amicus curiae, per curiam opinion, opinion of the Court, concurring opinion, dissenting opinion, stare decisis, remedy, judicial review, activist approach, strict-constructionist approach. An understanding of these terms will help students understand the appellate role of the Supreme Court.

Using one or more of the following landmark decisions, outline and discuss the appellate jurisdiction and the power of judicial review of the Supreme Court. For a good overview of landmark Supreme Court decisions, see the interactive feature in Spring 2010 issue of History Now—15 Supreme Court Cases Every High School Student Should Know.

  • Marbury v. Madison
  • McCulloch v. Maryland
  • Plessy v. Ferguson
  • Brown v. Board of Education of Topeka, Kansas
  • Heart of Atlanta Motel v. United States

Student Exercise Two: Mock Congress

Identify the historical context in which Congress enacted Title IX of the Education Amendments of 1972. Have the class research gender assumptions and experience in the United States from the end of World War II to 1970. Look at primary documents and secondary accounts in order to create an accurate and inclusive context for legislation defining and protecting gender equity. Identify arguments for and against such legislation. This is challenging research and may take some time. The following sites provide basic information and some good references for continued research. Other sites are also available.

The following are Supreme Court decisions on Title IX: North Haven Bd. of Education v. Bell (1982/employment), Grove City College v. Bell (1984), Franklin v. Gwinette Public Schools et al (1992), Jackson v. Birmingham Board of Education (2005), Cohen v. Brown (1995–1996).

Mock Congressional Hearing

Divide the class into Representatives and those expected to give testimony and/or answer questions on gender equity issues.

Those acting as Representatives need to be prepared to ask pertinent questions on issues that will facilitate writing future legislation. These students have the advantage of the law (Title IX, Educational Amendments, and subsequent legislation) to help them formulate probing questions.

Those giving testimony need to be prepared as experts on gender equity issues—some should be prepared to give evidence of the need for legislation and some should be prepared to identify the problems that such legislation could create.

Extension Activities

Mock Supreme Court Hearing (Appeal)

Create a scenario that includes a violation of one or more parts of Title IX. The class may wish to use the facts of an already-existing civil suit. Cohen v. Brown University is an interesting case. It was denied a hearing before the Supreme Court, but students can proceed as though the Supreme Court agreed to hear the case. Much has been written about this particular case.

Assign the following roles to class members: counsel(s) for the plaintiff, counsel(s) for the defendant, and nine justices.

Counsels on both sides will prepare their briefs and present their arguments to the justices

Justices will ask questions spontaneously during the hearing.

Justices will confer after the hearing and decide the case.

The class will write the opinion—the written opinion may be a per curium opinion, or may include a concurring opinion and a dissenting opinion along with the court opinion. This will generate a discussion about the effect the Supreme Court on the law and on the interpretation of the Constitution.

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