Learn About Title IX in this Primer

On June 23, 2020, Title IX will celebrated its 48th anniversary. While collegiate sports participation opportunities are rare and rationed, serving just 3% of the student body nationally, these opportunities provide considerable life-long benefits for participants in educational attainment, employment, and health.

Yet despite the strong statute, interpreting regulations, and case law, women lag behind men by all measurable criteria, including opportunities to play, scholarship dollars, and treatment, and those gaps are growing at an unrestrained clip. In athletic scholarship dollars alone, women lose $1 billion dollars annually, solely because they are women.

In the past, sport leaders have put the burden for change on their students, 18–22-year-old women, to bring lawsuits in order to get their schools to add more sports and treat them with the same dignity afforded men. The dramatic discrepancies between men’s and women’s sports programming will not be resolved through federal courts. Indeed, it is unfair to expect these young women to shoulder the responsibility to remedy the systemic, intentional sex discrimination that fundamentally characterizes intercollegiate athletics.

Equal Opportunity to Participate: Equal Quantitative Educational Opportunities

Title IX follows intuition on fairness and equality, a concept well-cemented for children early on. Title IX athletics compliance involves two parts: quantitative components and qualitative components. First, the law requires that schools provide women and girls with equal opportunities to participate, meaning schools must provide women with a team and equal scholarship dollars. The law also requires those participation opportunities be as educationally beneficial as those provided to men. This means female athletes and teams must receive equal treatment as compared with the male athletes and teams.[1]

In 1979, the Department of Education announced a Policy Interpretation that created three independent ways for schools to demonstrate that students of both genders have equal opportunities to participate in sports. These are summarized below:

  • Under Prong 1, a school can show that the percentage of total athletes at the school who are female is the same as the percentage of total students enrolled at the school who are female (the proportionality test), OR;
  • Under Prong 2, the school can show it has a history and a continuing practice of expanding opportunities for female students, OR;
  • Under Prong 3, the school can show it is fully and effectively meeting its female students’ interests and abilities to participate in sports.[2]

The easiest standard for demonstrating equal participation opportunities is via Prong 1, but if a school cannot meet Prong 1 and is able to show compliance with Prong 2 or 3, it will be found to be providing equal athletic participation. This three-part test has been in effect for more than four decades. It has been heavily litigated in courts, and has been upheld by every one of the eight federal appeals courts that has considered it.[3]

We have looked at the past 16 years of data from the EADA.[4] We have painstakingly deducted male practice players from the total women listed in the EADA count. Unless there is some information that is not represented in the EADA report, it appears that nearly every school is discriminating against its female students in its athletic offerings.

Importantly however, we have not looked “behind the EADA numbers” to account for actual rosters as listed on school websites, meaning the gaps in participation numbers are likely even larger than reported in the table below. Notably, Katie Thomas wrote a series of articles in the New York Times in 2011 on collegiate compliance with Title IX and found, “many [NCAA Division I institutions] are padding women’s teams rosters with underqualified, even unwitting, athletes.”[5] Courts, too, have found schools are undercounting their male athletes and over-counting their female athletes, in a fraudulent attempt to make their participation gap look smaller.[6] We have not compared the numbers as reported by institutions with their online rosters, but typically those errors would make a school further out of compliance with Prong 1, rather than the other way around.

Virtually no school can show compliance with Prong 3, which requires a showing that women have no current unmet demand for additional sports opportunities such that their interests and abilities are accommodated by the current program. To measure compliance with Prong 3, the OCR will look at participation rates in sports in high schools, amateur athletic associations, and community sports leagues that operate in areas from which the institution draws its students in order to ascertain likely interest and ability of its students and admitted students in particular sport(s).[7]

Since most schools recruit nationally, the interest for sports is evaluated on the same national basis.

Based on EADA data, most schools are only offering a small fraction of their students a sports experience. In 2017-2018, America had 16,756,000 high school students,[8] and 7,937,491 participated in school-sponsored sports,[9] for a high school sports participation rate of 47.37%. But even 47% understates the high school sports participation rate and the demand for sports. It does not include athletes on club teams, travel teams, and Olympic sports that can be, but frequently are not, high-school–sponsored sports, like ice hockey, rowing, fencing, beach volleyball, skiing, rifle, rugby, triathlon, archery, equestrian, sailing, and gymnastics.[10]

Equal Scholarship Opportunities

If a school complied with Title IX participation opportunities and provided women with additional athletic opportunities, women would be entitled to an additional amount in scholarships per year (see our EADA data table for figures for each school). These are important sources of funding for educational attainment that women are being denied because of their gender.

In 1998, the OCR clarified that “[i]f any unexplained disparity in the scholarship budget 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.”[11]

Equal Treatment: Measuring Men’s and Women’s Qualitative Educational Experience

The EADA does not provide information on the many of the metrics required for Title IX compliance, but providing educational experiences that are qualitatively equal is also important. These include equality in:

  1. Provision and maintenance of equipment and supplies;
  2. Scheduling of games and practice times;[12]
  3. Travel and per diem expenses;
  4. Opportunity to receive tutoring and assignment and compensation of tutors;
  5. Opportunity to receive coaching, and assignment and compensation of coaches;
  6. Provision of locker rooms, practice and competitive facilities;
  7. Provision of medical and training services and facilities;
  8. Provision of housing and dining services and facilities;
  9. Publicity;
  10. Support services; and
  11. Recruiting.[13]

[1] 34 C.F.R. § 106, available at: https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html – S41. The “laundry list” was further clarified in 1979; See Title IX Policy Interpretation: Intercollegiate Athletics (December 11, 1979), available at: https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html.

[2] A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. at 71413 (1979), available at: https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html.  For ease of reading, I have substituted “female athletes” instead of the verbiage in the regulations that refers to protecting the “underrepresented gender.” While a few women’s colleges apply the test to men, the overwhelming majority of schools apply the test to women, as it does in all «Conference_name» schools.

[3] See Chalenor v. University of North Dakota, No. 00-3379ND (8th Cir. May 30, 2002);Pederson v. Louisiana State University, 213 F.3d 858, 879 (5th Cir. 2000); Neal v. Board of Trustees of The California State Universities, 198 F.3d 763, 770 (9th Cir. 1999); Horner v. Kentucky High School Athletic Association, 43 F.3d 265, 274-75 (6th Cir. 1994); Kelley v. Board of Trustees, University of Illinois, 35 F.3d 265, 270 (7th Cir. 1994), cert. denied, 513 U.S. 1128 (1995); Cohen v. Brown University, 991 F. 2d 888 (1st Cir. 1993) (Cohen I), and 101 F.3d 155, 170 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997) (this case was before the First Circuit twice, first on Brown University’s appeal of a preliminary injunction granted by the district court (Cohen I), and the second time after a trial on the merits (Cohen II)); Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 828 (10th Cir. 1993), cert. denied, 510 U.S. 1004 (1993); Williams v. School District of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993).

[4] Equity in Athletics Disclosure Act reports, available at: https://ope.ed.gov/athletics/#/. (Each year, colleges and universities provide the Department of Education with data from their athletic department regarding numbers of participation opportunities provided to the students, scholarships, staffing, and revenues and expenses, that are broken down by the men’s and women’s teams. The Athletic Director of the institution must sign off on the numbers submitted.)

[5] Thomas, Katie, College Teams, Relying on Deception, Undermine Gender Equity, NY Times, April 26, 2011, available at:https://www.nytimes.com/2011/04/26/sports/26titleix.html. (The NCAA, NAIA, NJCAA, NCCAA, CCCAA and USCAA failed to respond with any collective action to remedy this blatant sex discrimination.)

[6] Biediger v. Quinnipiac Univ., 691 F.3d 85, 95 (2d Cir. 2012).

[7] A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. At 71413 (1979), available at: https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html. Other factors courts and the OCR will use to evaluate compliance with Prong 3, available at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100420.pdf.

[8] Duffin, Erin, High school enrollment in public and private institutions in the U.S. Statista, April 23, 2020. available at:https://www.statista.com/statistics/183996/us-high-school-enrollment-in-public-and-private-institutions/.

[9]National Federation of State High School Associations, Participation in High School Sports Registers First Decline in 30 Years, Sept. 5, 2019, available at: https://www.nfhs.org/articles/participation-in-high-school-sports-registers-first-decline-in-30-years/.

[10]National Federation of State High School Associations, High School Sports Participation Increases for 29th Consecutive Year, Sept. 11, 2018, available at: https://www.nfhs.org/articles/high-school-sports-participation-increases-for-29th-consecutive-year/.

[11] Letter from Dr. Mary Frances O’Shea, Office for Civil Rights, Department of Education, to Nancy S. Footer, General Counsel, Bowling Green State Univ. (July 23, 1998), available at: https://www2.ed.gov/about/offices/list/ocr/docs/bowlgrn.html.

See also, Bonnette, Valerie M; Daniel & Lamar. Title IX Athletics Investigator’s Manual, (1990) at 20, available at:  http://eric.ed.gov/ERICDocs/data/ericdocs2/content_storage_01/0000000b/80/23/24/ef.pdf; Policy Interpretation, 44 Fed. Reg. 71413, 71415 (1979).

[12] Parker v. Franklin County Community School Corp., 667 F.3d 910 (7th Cir. 2012).

[13] 34 C.F.R. § 106, available at: https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html – S41.