Obituaries

Birch Bayh, Indiana senator who championed Title IX, dies at 91

As chairman of the Senate constitutional amendments subcommittee, Mr. Bayh championed the federal law banning discrimination against women in college admissions and sports.
Henry Griffin/Associated Press/File/1968
As chairman of the Senate constitutional amendments subcommittee, Mr. Bayh championed the federal law banning discrimination against women in college admissions and sports.

WASHINGTON — Former senator Birch Bayh, the author of two major constitutional amendments as well as legislation that dramatically improved women’s rights in classrooms and on athletic fields, died Thursday at his home in Easton, Md. He was 91.

The cause was pneumonia, his family said in a statement.

In three terms on Capitol Hill, the liberal Democrat from conservative Indiana became one of his era’s most productive legislators and wiliest political adversaries, particularly in clashes over US Supreme Court nominees put forward by the Nixon administration.

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In 1980, Mr. Bayh was targeted by Republicans energized by Ronald Reagan’s presidential bid and was defeated by a brash young challenger, then-representative Dan Quayle, later vice president under George H.W. Bush. But the Bayh name remained resonant in Indiana, and his elder son, Evan, served as governor and US senator.

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Birch Bayh, an Indiana native — ‘‘just a shirttail lawyer from Shirkieville’’ — in his words, was an unlikely avatar of constitutional reform when he arrived in Washington in 1963 after ousting a prominent three-term incumbent.

By chance, he landed on the Senate Judiciary Committee, although he was just three years out of law school and had more experience as a farmer than as a lawyer.

Then serendipity struck — twice. The constitutional amendment subcommittee’s chairman died, and no one wanted what seemed a ticket to obscurity. Mr. Bayh volunteered. John Kennedy’s assassination three months later, in November 1963, elevated the job’s status dramatically.

Lyndon Johnson’s accession to the presidency was a stark reminder of a flaw in the succession process. There was no method to replace Johnson as vice president, and he had a history of heart disease.

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The subcommittee became a vehicle to prominence. Chairman Bayh jumped aboard, becoming the main author and advocate of the 25th Amendment. Ratified in 1967, the amendment established clear procedures for appointing a vice president if a vacancy occurred. It also set rules for replacing the president should the incumbent become seriously disabled.

‘‘A constitutional gap that has existed for two centuries has been filled,’’ Mr. Bayh said.

During the Watergate crisis, President Richard Nixon used the 25th Amendment in 1973 to name House minority leader Gerald Ford, Republican of Michigan, vice president. Ford succeeded Spiro Agnew, who resigned in disgrace after a federal investigation into allegations of bribery and extortion unrelated to Watergate. When Nixon resigned the next year, Ford chose Nelson Rockefeller as vice president.

Mr. Bayh also wrote the 26th Amendment, adopted in 1971, setting the national voting age at 18.

Next Mr. Bayh coauthored what would have been the 27th Amendment, the Equal Rights Amendment, prescribing equal treatment of women in all fields. Congress approved it in 1972. Sensing that the measure might sink because of opposition in state legislatures — ultimately, it did — Bayh produced Title IX of the 1972 education act. It banned gender discrimination in schools receiving federal support.

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Title IX provoked controversy lasting decades, particularly the requirement that schools devote equal resources to male and female athletes. Notre Dame athletic director Edward ‘‘Moose’’ Krause, an Indiana icon, warned Mr. Bayh, ‘‘This thing is going to kill football.’’

Forty years after Title IX’s enactment, when Mr. Bayh was being honored by female professional basketball players, he recalled the argument he made in the 1970s: ‘‘In a country that prides itself on equality, we could not continue to deny 53 percent of the American people equal rights.’’

Title IX had even an broader impact in classrooms and labs. In an interview, Donna Shalala, Bill Clinton’s secretary of health and human services and now a congresswoman from Florida, said: ‘‘Title IX was a game changer. It created opportunities for women students, faculty, administrators. Without it, you wouldn’t see as many women studying law and medicine — or serving as university presidents.’’

Feminism, Mr. Bayh acknowledged, was a taste he had acquired with the help of his first wife and political partner, Marvella Hern Bayh. ‘‘From time, to time,’’ he reminisced in 2004, ‘‘she would remind me what it was like to be a woman in a man’s world. Without her, I would not have been in a leadership role’’ on women’s issues.

Birch Evans Bayh Jr. was born Jan. 22, 1928, in Terre Haute, Ind., near Shirkieville, where forebears had farmed for generations. Birch Sr. was an athletic director who in 1935 moved the family to Montgomery County, Md., when he became director of physical education for the District of Columbia public school system.

The son was 12 when his mother died, and he moved to his grandparents’ Shirkieville farm. He enrolled in the agriculture program at Purdue University in West Lafayette, Ind.. After a two-year hiatus for Army service, he graduated in 1951 with a diverse resume.

His senior classmates elected him president. He excelled in boxing and baseball. A strong debater, he represented Indiana at the American Farm Bureau’s national debate competition in Chicago.

Oklahoma’s gladiator, though only a freshman at Oklahoma State, was Marvella Hern. Their love-at-first-sight encounter did not distract her. She walked off with the national prize, plus his fraternity pin.

They married in 1952, and the newlyweds ran his family’s farm. But he was restless and, in 1954, won a seat in the Indiana House of Representatives.

Swiftly, the articulate, handsome rural representative became minority leader and then speaker. While still responsible for the farm and legislative duties, he entered Indiana University law school. He graduated in 1960, joined a law firm in Terra Haute in 1961 and rented out the farm.

He had scarcely begun his new occupation when the Bayhs hatched a larger ambition: challenging Senator Homer Capehart, a conservative Republican seeking a fourth term.

The Bayhs practiced retail politics relentlessly. ‘‘I’d rather shake hands than eat,’’ he liked to say.

Mr. Bayh won by a margin of less than 1 percent.

Diligence remained the Bayh hallmark. He was active in drafting civil rights bills during the Kennedy and Johnson administrations although such legislation was unpopular in Indiana.

A delayed vote on a civil rights measure in 1964 almost killed him. The Bayhs accompanied Senator Edward Kennedy to a Democratic event in Massachusetts, leaving hours later than scheduled. Their small plane crashed, landing in evening fog at a rural airport.

Two of the five people aboard died. The Bayhs suffered relatively minor injuries, but Kennedy’s back was broken.

‘‘Anybody alive up there?’’ Mr. Bayh called from the ground. ‘‘I’m alive,’’ Kennedy croaked.

He was also immobile. Four months later, still in the hospital, Kennedy described to reporters how he locked his arms around his rescuer’s neck as Mr. Bayh, moving backward, dragged him out of the wreckage.

Mr. Bayh’s national profile grew in the late 1960s and early 1970s because of major battles over two US Supreme Court nominees.

When President Nixon nominated Clement Haynsworth Jr., chief judge of the US Court of Appeals for the 4th Circuit, to a seat on the high court in 1969, a seemingly solid coalition of Republicans and southern Democrats supported him. But union and civil rights leaders considered the conservative Haynsworth an enemy.

Mr. Bayh took the lead in rallying the opposition. With a few allies, he built a case against Haynsworth, in part by casting doubt on his ethics.

The Senate rejected Haynsworth and, in 1970, with Mr. Bayh again in the vanguard, voted down another conservative appellate court judge, G. Harrold Carswell. Nixon accused Mr. Bayh and others of exceeding the Senate’s ‘‘advise and consent’’ authority.

The president, Mr. Bayh responded, is ‘‘wrong as a matter of constitutional law, wrong as a matter of history, and wrong as a matter of public policy.’’

Mr. Bayh joined the field competing for the 1972 nomination before withdrawing after his wife received a diagnosis of breast cancer.

Marvella Bayh succumbed to a recurrence of cancer in 1979. Two years later, Mr. Bayh married Katherine ‘‘Kitty’’ Halpin, a director of news information for ABC News. In addition to his wife, survivors include a son from his first marriage, Evan Bayh; a son from his second marriage, Christopher Bayh; and four grandchildren.

During Marvella’s relapse, the Bayhs were frustrated that a promising treatment was unavailable because of a dispute over intellectual property rights. Medical and other innovations developed with government support, they discovered, sometimes remained in limbo because of procedures necessary to establish ownership.

Working with Senator Robert Dole, Republican of Kansas, Mr. Bayh wrote a patent reform bill introduced in 1978 and enacted in 1980. It streamlined practices, expediting the availability of many scientific processes.

It was his last legislative accomplishment. After his defeat in 1980, Mr. Bayh turned to the practice of law, ultimately settling into a partnership in the Washington office of Venable LLP.

In 2008, at age 80, he campaigned throughout Indiana for Barack Obama, sometimes making five appearances a day. He told an Indianapolis Star reporter that his 1962 margin amounted to two votes per precinct. Hence his appeal to supporters:

‘‘When it’s about over, and you’re so tired you can’t make another phone call, can’t take another step, get just two more votes for Birch.’’

Obama carried Indiana in 2008 by less than 1 percent.