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Examining Title IX

This is an excerpt from Introduction to Sport Law With Case Studies in Sport Law-2nd Edition by John O. Spengler,Paul Anderson,Dan Connaughton & Thomas Baker.

Title IX

In the late 1960s and early 1970s, few athletes at the high school or university level were female. Women who participated received little support from athletic department budgets. With the enactment of Title IX, women began to see exponential gains in athletic participation at the high school and university levels.

The legislative impetus for Title IX was the Civil Rights Act of 1964. Its framework, which forced schools and employers to honor the civil rights of minority students and employees, also forced schools and employers to recognize the rights of women. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq., 2015) provides the following:

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.

Simply stated, Title IX prohibits programs that receive federal funding from excluding people from participating in the programs or denying people access to the benefits that the programs might provide. The focus of Title IX is to prohibit discrimination against the underrepresented sex, which historically has been women.

Although the law's prohibition of discrimination seems clear, many questions remain. Title IX says nothing about athletics; instead, its focus is on educational programs. But courts quickly understood that athletic participation is a benefit within an overall educational program. As a result, the focus of Title IX litigation has been athletic departments and organizations.

There has also been confusion over what programs or activities receive federal financial assistance and therefore come under Title IX. At first, courts determined that the law applied only to programs that received federal funding. Therefore, athletic departments were not covered unless it was clear that the department itself directly received federal funding. In fact, in 1984 the U.S. Supreme Court found that only the specific department receiving federal funding should be required to comply with Title IX (Grove City College et al. v. Bell, 1984).

In the case of Grove City College, a private liberal arts college refused to agree to Title IX's nondiscrimination provisions as required by the Department of Education. As a result, the Department of Education pulled grant and loan money for students. The school sued so that it could get the funding back. The Supreme Court agreed that the Department of Education could pull the funding because the school did not comply with Title IX, but the court limited its decision to the specific programs at the school that received federal financial assistance.

The results of this case were staggering. Because most universities have separate financial aid offices that provide student financial aid, athletic departments could avoid review under Title IX because the athletic departments themselves did not receive direct federal financial aid. But 3 years later Congress passed the Civil Rights Restoration Act (2015), overturning the Supreme Court and making clear that as long as any part of a program or activity receives federal financial assistance, Title IX applies (20 U.S.C. § 1687, 2015). As a result, because virtually every American university and high school receives some form of federal funding, Title IX applies to all schools.

Although Title IX applies to virtually every school, it does not apply directly to every athletic organization. For instance, the Supreme Court has held that the National Collegiate Athletic Association (NCAA) is not subject to Title IX because the organization does not directly receive federal funds (NCAA v. Smith, 1999). Renee Smith sued the NCAA because its rules barred her from participating in volleyball at one institution after she had already graduated from another institution. The Supreme Court found that the NCAA only indirectly received federal funds from the dues paid by its member schools and that this was not enough to force the NCAA to be subject to Title IX. Regardless, the NCAA has voluntarily agreed to work toward compliance with the law and has been at the forefront of providing equitable opportunities for women.

There was also early confusion over who could bring a lawsuit to push for equitable opportunities under the law. Title IX does not provide any specific way for an individual to sue to enforce the law. But in 1979 the Supreme Court held that there is an implied private right of action under Title IX (Cannon v. Univ. of Chicago,1979). In Cannon,afemale student who was denied admission to a medical school sued the school for violating Title IX. The Supreme Court found that an individual can sue under Title IX even though this right is not spelled out in the language of the statute itself. After this case, private individuals, from students to coaches, could sue, arguing that a school or program violated Title IX.

For many years it was unclear what a successful plaintiff could receive if she won a Title IX lawsuit. The law provides that federal funding can be pulled from any school that violates Title IX (20 U.S.C. §1682, 2015), but this punishment has never been imposed. In 1992 the Supreme Court ruled that monetary damages could be available to people who were successful in lawsuits alleging intentional violations of Title IX (Franklin v. Gwinnett County Public Schools, 1992). (See more about this case in the accompanying e-book, Case Studies in Sport Law, Second Edition [Pittman, Spengler, & Young, 2016].)

The regulation and enforcement of the law were left to the then Department of Health, Education and Welfare, which is now the Office for Civil Rights (OCR) within the Department of Education. In 1975 the department passed regulations that spelled out how the law affects athletics. The regulations initially focused on equal opportunity (Athletics, 34 C.F.R. 106.41, 2015). They began by repeating Title IX's prohibition of discrimination more specifically within any high school, intercollegiate, club, or intramural athletic program. The regulations mandated that high school and university athletic programs provide equal opportunity for members of both sexes within several program areas, including provision of equipment and supplies, scheduling of games and practices, provision of locker rooms, and provision of practice and competitive facilities (Athletics, 34 C.F.R. 106.41(c)(2 - 10), 2015). Next, the interests and abilities of both genders and the selection of sports for both must be effectively accommodated (Athletics, 34 C.F.R. 106.41(c)(1), 2015). The regulations also call for equivalency in the administration of financial assistance (Financial Assistance, 34 C.F.R. 106.37(c), 2015). Although meant to explain in more depth the requirements and enforcement of Title IX, the regulations did not accomplish this goal because they did not provide any way for a school to measure whether it was in compliance with Title IX.

After the regulations were in place, advocates began to sue athletic programs that they perceived were not providing equal opportunities to female athletes. In 1979 the government attempted to provide further clarification with its policy interpretation (Policy Interpretation, 44 F.R. 239, 1979). The interpretation was designed specifically for university athletics but applies equally to high school, club, and intramural athletic programs. The interpretation is divided into three areas.

• Part 1 deals with financial assistance and requires that such assistance be allocated equally to male and female athletic participants.
• Part 2 deals with equality in the other program areas provided in the regulations, such as facilities and equipment.
• Part 3 deals with effective accommodation of the interests and abilities of both sexes to provide equal athletic opportunity for members of both sexes. This area has seen the most litigation.

The interpretation is not law, but courts have repeatedly deferred to it because it is the interpretation of the law provided by the federal agency responsible for enforcing Title IX.

Female athletes have always been and continue to be the underrepresented sex, but they have made exponential gains in participation, even though their participation is still not equal to that of male athletes. For instance, at the high school level, according to the National Federation of State High School Athletic Associations (NFHS), during the 2013 - 2014 season, 3,267,664 girls participated in high school sports, an all-time record. At the same time 4,527,994 boys participated, the highest total ever for boys (National Federation of State High School Associations, 2014). At the university level, even though women make up 57% of all undergraduate students (National Center for Education Statistics, 2013), they represent only 43.2% of university athletes (National Collegiate Athletic Association, 2012a, p. 5). During the 2011 - 2012 season, 195,657 women and 257,690 men participated in collegiate athletics (National Collegiate Athletic Association, 2012a, p. 79). Therefore, girls and women still do not participate at levels equal to boys and men and are underrepresented in athletics. As a result, the specific enforcement mechanisms applied by the OCR and the courts focus on bringing female athletes up to a level of participation equal to that of male athletes.

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