Title IX of the Education Amendments of 1972 prohibits public and private educational institutions that receive federal funds from discriminating because of gender in any aspect of their operations. If any aspect of a college or university’s operations receives federal funds, then all aspects of their operations are subject to Title IX. Insofar as virtually all institutions of higher education receive federal funds in the form of student financial aid, just about all colleges and universities in the United States are covered by Title IX. This entry reviews the impact of Title IX with regard to intercollegiate athletics in American higher education.
The statute explicitly forbids quotas, and judicial interpretations of the law in a wide array of cases are both broader and narrower than the prohibitions against gender discrimination that are provided for by the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution. Although there is no mention of intercollegiate or interscholastic athletics in the actual statute, its implementing regulations make it clear that athletics is covered by Title IX. The Office for Civil Rights (OCR) of the U.S. Department of Education is the agency charged with the enforcement of Title IX.
Under the OCR’s interpretation, which has been universally endorsed by the federal appellate courts, institutional officials must do one of three things in order to achieve compliance with Title IX in the context of athletic participation. Officials may ensure that the representation of each gender is substantially proportionate; they may demonstrate a continuing history of expanding opportunities for students of the underrepresented gender; or they may demonstrate that they are currently accommodating the interests and abilities of the underrepresented gender.
The first way in which institutions may comply with Title IX is to ensure that each gender’s representation in varsity athletics is substantially proportionate to its representation in the student body. Of course, the fact that the Office for Civil Rights expects a gender’s representation among athletes to be “substantially proportionate” to that gender’s representation in the student body necessarily begs the question of what is meant by “substantially proportionate.” In 1996, the Office for Civil Rights clarified that athletic opportunities are “substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, meaning a team for which there is a sufficient number of interested and able students as well as enough available competition to sustain an intercollegiate team.” In plain English, the OCR first decides how many additional opportunities must be offered to the underrepresented gender in order to achieve perfect proportionality. If this number is sufficient to field a viable team, then institutions are not considered substantially proportionate and must add a team.
As an illustration of how the OCR test works, suppose that university with a student body that is 55% female presently offers 700 athletic participation opportunities. Of these chances, men have 385 athletic participation opportunities while women have 315 participation opportunities. Under this example, this means that women represent 45% of the athletes (315 divided by 700) even though they account for 55% of the full-time undergraduate students. The first step for institutional officials would be to consider how many opportunities they must add for women in order to achieve perfect proportionality of 55%. If male participation remains constant, which is the assumption that the Office for Civil Rights employs, university officials must add 156 participation opportunities for women. If university officials did so, then there would be 471 female opportunities (315 current + 156 additional) and 385 male opportunities (all current). The second step is for officials to address whether the number of new participation opportunities required, 156 in this example, is sufficient to field a viable team. Clearly, this would be sufficient. In fact, a university could field seven or eight new women’s teams with 156 additional opportunities.
Although the above example is purely hypothetical, the actual practice of the OCR yields similar results. In a letter dated August 24, 2000, the Office for Civil Rights advised officials at the University of Wisconsin that, based on its deviation of 2.89 percentage points (involving an enrollment of women of 52.96% compared with their intercollegiate athletic participation of 50.07%), it failed to comply with its commitment in a plan submitted to OCR to meet the first prong of the three-part test. In this letter, the Office for Civil Rights stated the deviation represented as many as 46 participation opportunities for women, which would be sufficient to sustain the addition of a viable women’s team. In short, if one gender represents 50% of a student body, its representation among varsity athletes must approximate 50%.
Demonstration of Expanded Opportunities
Second, if an institution has not achieved substantial proportionality, its officials may demonstrate that it has a continuing history of expanding opportunities for the underrepresented gender. In other words, it is acceptable for female representation among athletes to be substantially below their representation in the student body if an institution has consistently added new teams for women and intends to continue to do so in the future. In evaluating “history,” the OCR examines an institution’s record for adding teams, its record of increasing participants on existing teams, and its response to requests to add teams. In assessing “continuing practice,” the Office for Civil Rights looks at an institution’s current policy for adding teams. In practical terms, this means that an institution must have consistently added new teams for the underrepresented gender about every three to four years, must refrain from eliminating any teams for the underrepresented gender, and must have a plan for adding new teams in the future. To be sure, the fact that the OCR demands that teams be added in the future necessarily begs the question of when an institution may cease adding teams. Apparently, the answer is that an institution is excused from adding teams when it finally achieves substantial proportionality. Until such time, an institution must add teams at the rate of about once every three years.
Accommodating Interests and Abilities
Third, institutional officials may demonstrate that they are currently accommodating all interests and abilities of the underrepresented gender. Under guidance issued in 2005, compliance with the third prong turns on the following factors: unmet interest sufficient to sustain a varsity team in the sport(s), sufficient ability to sustain an intercollegiate team in the sport(s), and reasonable expectation of intercollegiate competition for a team in the sport(s) within the institution’s normal competitive region. In other words, institutions are not required to accommodate the interests and abilities of all their students or fulfill every request for the addition or elevation of particular sports, unless all three conditions are present. However, insofar as students are constantly entering and leaving the institution, survey data quickly become useless. To this end, if institutional officials are to demonstrate that they are filling all student needs and thereby meet the third requirement, they must complete surveys on a continuing basis. Presumably, this means that the institutional officials must periodically survey the underrepresented gender and add a new team every time there is an indication of an unmet interest and ability, until substantial proportionality is achieved.
Impact of the Three Options
As a practical matter, all three options eventually lead to substantial proportionality, the first option. Unless an institution has achieved substantial proportionality, its officials must add teams for the underrepresented gender periodically until such time as substantial proportionality is achieved; or cut opportunities for the overrepresented gender immediately so that substantial proportionality is achieved; or add a team every time there is an indication of an unmet interest and ability among the underrepresented gender until substantial proportionality is achieved; or some combination of the first three options. The question is not whether substantial proportionality will be reached but when.
In addition to mandating particular levels of participation, the federal regulations address the provision of athletic scholarships. As to athletic financial assistance, the regulation is specific. With respect to athletic scholarships, the regulation provides as follows:
(1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic sports.
(2) Separate athletic scholarships or grants-inaid for members of each sex may be provided as part of separate athletic teams for members of each sex to the extent consistent with this paragraph and § 106.41(c). (C.F.R. § 106.37(c))
In effect, if 45% of the athletes are female, then females should receive approximately 45% of total athletic financial assistance.
As in the case of the participation requirements, although no level of permissible deviation from exact equality in scholarship aid has been established, Office for Civil Rights issued a guidance letter addressing this point. According to this letter,
if any unexplained disparity in the scholarship budgets for athletes of either gender is 1% or less for the entire budget for athletic scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than 1% is in violation of the “substantially proportionate” requirement. (Letter to Nancy S. Footer, general counsel of Bowling Green University, July 23, 1998)
To be sure, the financial assistance regulation and the accommodating interests and abilities regulation work in tandem. As a gender’s participation increases, its share of scholarship money must also increase. Thus, while adding some extra nonscholarship players may help an institution to achieve substantial proportionality in the context of participation, it may actually cause noncompliance in the financial context. Conversely, limiting nonscholarship players to achieve financial assistance compliance may cause a college or university to fail the substantial proportionality test. Since it is extremely difficult for an institution to meet both of these Title IX standards, their officials must remain vigilant.
William E. Thro
See also Grove City College v. Bell; National Collegiate Athletic Association
Beveridge, C. P. (1996). Title IX and intercollegiate athletics: When schools cut men’s athletic teams. University of Illinois Law Review, pp. 809–842.
Boucher v. Syracuse University, 164 F.3d 113 (2d Cir. 1999).
Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992), aff’d, 991 F.2d 888 (1st Cir. 1993), remanded 879 F. Supp. 185 (D.R.I. 1995), aff’d in part, rev’d in part, 102 F.3d 155 (1st Cir. 1996).
Davis v. Monroe County School District, 526 U.S. 626 (1999).
Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993), aff’d, 7 F.3d 332 (3d Cir. 1993).
Gavora, J. (2002). Tilting the playing field: Schools, sports, sex, & Title IX. San Francisco: Encounter Books.
Gebser v. Lago Vista Independent School District, 524 U.S. 276 (1998).
Hollinger, C. L., Jr. (1994). Are male college sports in jeopardy? A look at Kelly v. Board of Trustees of the University of Illinois. Seattle University Law Review, 21, 151–169.
Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir. 1994).
Neal v. Board of Trustees of the California State Universities, 198 F.3d 763 (9th Cir. 1999).
Policy interpretation. 44 Federal Register 71413 (1979).
Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993).
Snow, B. A., & Thro, W. E. (1996). Still on the sidelines: Developing the non-discrimination paradigm under Title IX. Duke Journal of Gender Law & Policy, 3, 1–48.
Snow, B. A., Thro, W. E., & Clemente, S. (2001). The problem of determining Title IX liability. Education Law Reporter, 154, 1–44.
Thro, W. E., & Snow, B. A. (1993). The significance of Cohen v. Brown University for the future of intercollegiate and interscholastic athletics. Education Law Reporter, 84, 611–628.
Thro W. E., & Snow, B. A. (1998). The conflict between the Equal Protection Clause and Cohen v. Brown University. Education Law Reporter, 123, 1013–1037.
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (1972).
Code of Federal Regulations, 34 C.F.R. §§ 106.37(c), 106.41.
Office for Civil Rights. (1996). Clarification of intercollegiate athletics policy guidance: The three-part test. Retrieved May 1, 2009, from http://www.ed.gov/about/offices/list/ocr/docs/clarific.html
Office for Civil Rights. (2005). Additional clarification of intercollegiate athletics policy: Three-part test—part three. Retrieved May 1, 2009, from http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html