Trial Magazine

Until Title IX was passed in 1972,¹ women were not given the opportunity to participate in sports like men could.² But even today, 50 years later, sports opportunities are far from equal.

And in the wake of the COVID-19 pandemic, the problem has grown, with universities dropping women’s sports. In 2020, more than a dozen universities eliminated women’s sports—including Michigan State, which is currently in litigation after cutting women’s swimming and diving; and William and Mary, which eliminated and ultimately reinstated women’s swimming and diving, gymnastics, and volleyball after the possibility of a Title IX lawsuit.³

Title IX provides that “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 [f]ederal financial assistance.”⁴ It protects those who work for and attend educational institutions—grade school to graduate school—from sex discrimination in programs or activities that receive federal financial assistance.⁵

Title IX has had its opponents over the years. There have been attempts to amend it and court cases seeking to exclude certain revenue sports—or sports in general—from being subject to its requirements.⁶ For example, some have argued that football and men’s basketball should not be held to Title IX’s equality standards.⁷ And in 1984, the U.S. Supreme Court held in Grove City College v. Bell that even if a school received federal funding generally, that wasn’t enough to invoke Title IX across the school for programs that didn’t directly receive that federal funding—which at the time often included athletics programs.⁸

Congress, however, overruled Grove City in 1987 with the Civil Rights Restoration Act, which defines “program” and “activity” broadly to include sports and other activities—making it clear that Title IX applies to sports programs if any part of the school receives federal funding.⁹

During the pandemic, as universities and colleges across the country looked for ways to reduce costs, several schools cut sports such as tennis and swimming that they labeled as “non-revenue”—especially women’s college sports.¹⁰ But the reality is that these institutions eliminated less costly programs—not the programs they would cut if they were truly concerned about the expense of athletics programs. With the exception of the few universities with television contracts, all sports, including football and men’s basketball, regularly lose money—their operating budgets tend to be so much more than what the sports generate in income.¹¹

Institutions can comply with Title IX's athletic participation opportunity standards in three ways.

What Title IX Requires

Regardless of an educational institution’s intent, cuts to women’s school sports may not violate Title IX. Institutions can comply with Title IX’s athletic participation opportunity standards in three ways.¹² First, they can show “substantial proportionality”—the male-female ratio of the undergraduate population can mirror the male-female ratio of the student-athletes.¹³ For example, if 55% of undergraduates are female, then 55% of student-athletes also must be female.

Second, institutions can meet Title IX requirements by showing a history of continual program expansion—adding sports regularly to accommodate the interests and abilities of the underrepresented sex.¹⁴ And finally, institutions can satisfy Title IX by showing they have fully and effectively accommodated the interests of the underrepresented sex.¹⁵

Title IX also requires universities to distribute athletic financial aid equitably and to provide equal treatment and benefits—such as equitable facilities, dining, transportation, or coaching—to male and female student-athletes.¹⁶ The dollar amount of athletic scholarships must reflect the gender breakdown of a school’s student-athletes.¹⁷ Institutions that are outside of exact proportionality by 1% or more are presumed to be in violation of Title IX.¹⁸

For treatment and benefit issues, courts will look to what is commonly referred to as the “laundry list.”¹⁹ The laundry list provides colleges and courts with key areas where inequities could occur, such as recruiting expenses, travel, or facilities. This analysis recognizes that some differences are sport-specific, but on the whole, men’s and women’s programs need to be treated equitably.²⁰

In most cases, an institution in violation of Title IX’s substantial proportionality requirements also violates athletic financial aid and treatment and benefits requirements. Although these violations often are not the impetus for a Title IX athletics claim (although they could be), they may be coupled with a participation opportunity claim, which can force an institution to bring its entire athletics program into compliance.

To come into compliance, schools typically conduct a gender equity analysis with the assistance of an expert or internally with the school’s administration and then develop a compliance plan—a process that could take years. Therefore, many Title IX athletics class actions often include three separate claims:

• failure to provide equitable participation opportunities
• failure to provide equitable athletic financial aid
• failure to provide equitable treatment and benefits to male and female student-athletes.

Building a Claim

So where do these claims begin? A Title IX athletics case typically starts after an institution has eliminated a varsity team. The student-athletes, parents, alumni, and other community members may have been trying for months to have the sport reinstated before they reach out to counsel and attempt to force reinstatement through litigation. These cases begin as equitable participation opportunity claims.

While an institution can demonstrate Title IX compliance under any of the three prongs discussed earlier, because these cases often start after the elimination of a team, what institutions must demonstrate is that they are still providing substantially proportionate participation opportunities.²¹ When a fully rostered team is eliminated, the school can no longer meet the burden of proving that it has a history of expanding opportunities in a manner that is “demonstrably responsive to the developing interest and ability of the underrepresented sex.”²²

In the same manner, the members of the eliminated team represent interest and ability that is no longer being effectively accommodated. This limits what the student-athletes must prove at the outset of the litigation.

Participation data. When you are considering whether to take a Title IX athletics case at the college level, first check the school’s publicly available participation data—the number of student-athletes participating on each school-sponsored varsity team. Colleges are required to annually report their undergraduate student population, athletic participation, and financial information to the U.S. Department of Education under the Equity in Athletics Disclosure Act (EADA).²³

EADA data can be used to calculate whether the institution is providing a proportional number of varsity athletic opportunities.²⁴ You’ll need to determine how many participation opportunities should be offered for women based on the student population and compare that to how opportunities are actually being offered for women. Note that when calculating participation opportunities offered, schools count students who participate in more than one varsity sport as one participant for each varsity sport they play.²⁵

Size of the opportunities gap. Next, calculate the participation opportunities gap to determine whether the student-athletes have a valid claim under Title IX. For a step-by-step explanation of this calculation, see below.

Once you’ve calculated the participation opportunities gap, the next step is to determine whether that gap is large enough to support a viable team.²⁶ For example, in one Title IX case we litigated, the school eliminated the women’s tennis and softball teams—approximately 30 women between the two teams—however, the school’s participation gap was more than 250 women.²⁷ Therefore, both teams needed to be reinstated, and even then, the school was not in compliance with Title IX.²⁸ At other universities, the gap may be smaller—it may then be a judgment call for the attorney whether the gap is large enough to sustain a viable varsity team.

CALCULATING THE PARTICIPATION OPPORTUNITIES GAP

Compliance and litigation. After calculating the participation gap and determining that you have a valid claim, the next step is to contact the school. Some claims can be resolved before ever going to court. Schools may agree to reinstate the eliminated team or teams. They also may agree to undergo a Title IX evaluation and create a gender equity plan to bring the entire athletic department into compliance.²⁹

Unfortunately, not every institution is willing to voluntarily bring itself into compliance. In those cases, you’ll need to file a claim in federal court. Most of these cases are class actions because the injunctive relief that will bring the university into compliance will be for all female students and even future female students, not just the named plaintiffs.

The first fight in court typically is over a preliminary injunction to reinstate the team during the pendency of the case. The request for a preliminary injunction should be filed at the same time as the initial complaint, and your main focus should be to provide the court with a clear picture of the irreparable harm³⁰ the female-student athletes face by being denied participation opportunities and your likelihood of success on the merits of your Title IX participation claim. You need to take the time to educate the court on Title IX’s requirements and purpose—this is not the type of case that most judges have been exposed to.

These initial steps can help lessen the harm to your clients if you are successful in obtaining a preliminary injunction, but that is only one battle. These cases often go on for many years, some with multiple appeals, before a permanent injunction is issued. Therefore, the student-athletes who initiated the case may have graduated before the case concludes, and for this reason, reaching a prelitigation resolution is often the best option for current student-athletes.

Be open to dialogue with the school as soon as possible to alleviate some of the logistical concerns with reinstating the sport—such as getting on the competition schedule for the next academic year—and work with the school to find a realistic way for it to come into compliance with all aspects of Title IX after the eliminated sport has been reinstated.³¹

The intent of Title IX was to give women the same educational opportunities as men. Depriving them of opportunities, whether in school sports or in the classroom, is a clear violation of the law. So while these cases are complex and student-athletes may be hesitant to file suit against their schools, this is the only mechanism to ensure equity.

Jill Zwagerman is a partner at Newkirk Zwagerman in Des Moines, Iowa, and Lori Bullock is a partner at Bailey Glasser in Des Moines. They can be reached at jzwagerman@newkirklaw.com and lbullock@baileyglasser.com.

Notes

1. 20 U.S.C. §§1681–1688 (1972).
2. One of the more recent examples of this unfair treatment was when female student-athletes brought to light the difference in how the NCAA treated the men’s and women’s March Madness basketball teams. Alan Blinder, Report: N.C.A.A. Prioritized Men’s Basketball ‘Over Everything Else,’ N.Y. Times, Aug. 3, 2021, https://tinyurl.com/a9yc3b8w.
3. See Matt Charboneau, MSU Swimmers Sue University, Say They Feel Like ‘Second-Class Citizens,’ The Detroit News, Jan. 15. 2021, https://bit.ly/3jvUzYr; Julia Marsigliano, W&M Reinstates Women’s Sports Teams to Comply With Title IX, Williamsburg Yorktown Daily, Oct. 19, 2020, https://tinyurl.com/5b5r3nmy.
4. 20 U.S.C. §1681(a).
5. 20 U.S.C. §1681. Lately, there have been high-profile Title IX claims related to sexual assault and sexual harassment on campuses. Title IX also includes an equal pay provision—this prohibits employees, including graduate assistants, from being treated differently in regards to pay. See U.S. Dep’t of Educ., Office of Civil Rights, Nondiscrimination in Employment Practices in Education, Aug. 1, 1991, https://www2.ed.gov/about/offices/list/ocr/docs/hq53e8.html. And it also prohibits retaliation against individuals who complain about Title IX violations. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 176–77 (2005).
6. Revenue sports are those sports that generate their own source of income for the university. They typically include men’s and women’s basketball and football. Depending on the location, sports such as men’s ice hockey, men’s baseball, or track and field can also be revenue-generating sports for schools.
7. See Sex Discrimination Regulations: Hearings Before the House Subcomm. on Post-Secondary Educ. of the Comm. on Educ. & Labor, 94 Cong. 166–67 (1975) (Statement of Rep. Mink).
8. See Grove City College v. Bell, 465 U.S. 555, 574 (1984).
9. 20 U.S.C. §1687 (1988).
10. See, e.g., Mich. State U. Spartan Athletics, Michigan State Announces Plans to Discontinue Swimming & Diving After 2021, Oct. 22, 2020, https://bit.ly/2U1nNpq; Justin Kramer, Addison Dick & Lili Stern, Dartmouth Cuts Five Sports Teams and Closes Hanover Country Club, The Dartmouth, July 9, 2020, https://bit.ly/3xtjWz4.
11. See NCAA, Finances of Intercollegiate Athletics Database, 2020, https://tinyurl.com/4xxkknre (“In total, only 25 athletics departments’ generated revenues exceeded their expenses in 2018–19.”).
12. See Title IX of the Education Amendments of 1972, a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,418 (Dec. 11, 1979). See also McCormick v. School Dist. of Mamaroneck, 370 F.3d 275, 291 (2d Cir. 2004); Chalenor v. Univ. of N.D., 291 F.3d 1042, 1045–47 (8th Cir. 2002); Pederson v. La. State Univ., 213 F.3d 858, 877–79 (5th Cir. 2000); Neal v. Bd. of Tr., 198 F.3d 763, 770–72 (9th Cir. 1999); Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 273–75 (6th Cir. 1994); Kelley v. Bd. of Tr., 35 F.3d 265, 260 (7th Cir. 1994); Cohen v. Brown Univ., 991 F.2d 888, 895, 899 (1st Cir. 1993); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993); Equity in Athletic, Inc. v. Dep’t of Educ., 504 F. Supp. 2d 88, 102–05 (W.D. Va. 2007), aff’d 291 F. App’x. 517 (4th Cir. 2008); Nat’l Wrestling Coaches Ass’n v. U.S. Dep’t of Educ., 263 F. Supp. 2d 82, 94–96 (D.D.C. 2003), aff’d 366 F.3d 930 (D.C. Cir. 2004); Favia v. Indiana Univ. of Pa., 812 F. Supp. 578, 584–85 (W.D. Pa. 1993), aff’d 7 F.3d 332 (3d Cir. 1993).
13. Title IX of the Education Amendments of 1972, a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,418.
14. Id.
15. Id. There are many factors the courts can consider in regard the third prong. See U.S. Dep’t of Educ., Office of Civil Rights, OCR-00016, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, (1996), https://www2.ed.gov/about/offices/list/ocr/docs/clarific.html (discussing relevant factors).
16. 34 C.F.R. §106.41(c) (2020).
17. See U.S. Dep’t of Educ., Requirements Under Title IX of the Education Amendments of 1972, https://tinyurl.com/39sfve9v.
18. Id.
19. See 34 C.F.R. §106.41(c).
20. See Carrie Baker, Athletes Win Historic Title IX Settlement With Clemson University, Ms. Magazine, May 3, 2021, https://bit.ly/3fETxIn.
21. See Biediger v. Quinnipiac Univ., 616 F. Supp. 2d 277, 294 (D. Conn. 2009) (“There is no question that, if Quinnipiac fails to meet prong one of Title IX compliance, it will be out of compliance with Title IX. That is because, by eliminating a women’s team while there is sufficient interest to field one, the University will have failed to demonstrate that it is committed to expanding opportunities for the underrepresented gender—women—or that it has fully and effectively accommodated the interests and abilities of that underrepresented gender.”).
22. Mayerova v. E. Mich. Univ., 346 F. Supp. 3d 983, 995 (E.D. Mich. 2018).
23. See 34 C.F.R. §668.47(c) (1999). This EADA data can be accessed online at https://ope.ed.gov/athletics/#/.
24. U.S. Dep’t of Educ., Equity in Data Analytics, https://ope.ed.gov/athletics/#/.
25. See Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, supra note 15.
26. The analysis for whether the team is viable can vary depending on the circumstances, see, e.g., Lazor v. Univ. of Conn., 2021 WL 2138832, at *3–5 (D. Conn. May 26, 2021).
27. Mayerova, 346 F. Supp. 3d at 986, 993–94.
28. Id. at 999 (“Plaintiffs “merely seek what the law requires, equal athletic opportunities. . . . [Reinstatement] is the least the Athletic Department can do in light of its legal violations.”). The consent decree in this case resulted in the addition of a women’s lacrosse team, and the school will need to take additional steps over the next three years to ensure it reaches substantial proportionality while not eliminating any opportunities for women. See also Virginia Gordon, Eastern Michigan University Settles Title IX Lawsuit, NPR, Jan. 22, 2020, https://tinyurl.com/2j46umrk.
29. The gender equity review will require a full review of all areas covered by the laundry list; interviews with coaches, students, and administrators; tours of the athletic facilities; and developing a plan that will remedy all of the identified gender inequities.
30. The harm is more than just the opportunity to play. Through college sports, female students “‘develop skill, self-confidence, learn team cohesion and a sense of accomplishment, increase their physical and mental well-being, and develop a lifelong healthy attitude. The opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not.’” Mayerova, 346 F. Supp. 3d at 997 (E.D. Mich. 2018) (quoting Favia, 812 F. Supp. at 583).
31. For an example notice of potential claim letter, see the authors’ March 2021 letter to Clemson University, https://bit.ly/3Akya74.