Title IX of the Education Amendments of 1972, 20 U.S.C. Sect. 1681 (20 United States Code section 1681) et seq. (Title IX), is a Federal statute that was created to prohibit sex discrimination in education programs that receive Federal financial assistance. Nearly every educational institution is a recipient of Federal funds and, thus, is required to comply with Title IX. The regulation implementing the Title IX statute is at 34 C.F.R. (34 Code of Federal Regulations) Part 106.
Title IX is enforced by the Office for Civil Rights (OCR) of the U.S. Department of Education. OCR has authority to develop policy on the regulations it enforces. In regard to athletics programs, OCR developed an Intercollegiate Athletics Policy Interpretation that was issued December 11, 1979, 44 Fed. Reg. 71413 et seq (1979). The 1979 Policy Interpretation remains current policy. In general, courts defer to the policies of the agencies with enforcement authority.
The Title IX statute does not reference athletics programs. Athletics program requirements are specifically addressed at 34 C.F.R. Sect. 106.41 of the Title IX regulation and athletics scholarships are addressed at Sect. 106.37(c) of the Title IX regulation. The following is a brief chronology.
Title IX Statute - enacted June 23, 1972 (20 U.S.C. Sect. 1681 seq.); statute makes no reference to athletics or athletics programs.
Title IX Regulation - effective date July 21, 1975 (34 C.F.R. Part 106)
Specific requirements for athletics - 34 C.F.R. Sect. 106.41 Specific requirements for athletics scholarships - 34 C.F.R. Sect. 106.37(c)
Proposed regulation published June 20, 1974, in Federal Register for comment; nearly 10,000 comments were received during comment period, most on athletics; Congress passed Section 844 of the Education Amendments of 1974, also known as the Javits amendment, which required inclusion in the Title IX regulation "with respect to intercollegiate athletics activities reasonable provisions considering the nature of particular sports[;]" Conference Committee deleted a Senate floor amendment that would have exempted revenue producing sports from Title IX jurisdiction.
September 1975 - "Elimination of Sex Discrimination in Athletics Programs"
Intercollegiate Athletics Policy Interpretation
Grove City College v. Bell (465 U.S. 555 (1984))
Civil Rights Restoration Act of 1987
Title IX Athletics Investigator's Manual, issued April 2, 1990
1996 OCR Policy Clarification: The Three-Part Test
In response to numerous requests by schools for guidance in the early 1990s, Norma Cantu, assistant secretary for civil rights in the Clinton administration, issued a document titled “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test” (the 1996 Clarification). The clarification was the subject of debate. Some argued that its reference to Prong 1 only – a strict
numbers-based proportionality test – as a “safe harbor” was confusing and led schools to disregard Prongs 2 (history of expansion) and 3 (meeting interest). Opponents of the law argued that it was a “quota system” that disadvantaged male programs. A careful reading of the clarification and the fact that schools have relied upon and been found compliant under each of the three prongs, demonstrates that each prong offers safe harbor, provided schools meet the respective tests.
1998 OCR Letter on Financial Aid
On the 25th anniversary of Title IX, the National Women’s Law Center filed complaints of financial aid discrimination with the OCR against 25 colleges and universities. In the midst of litigation, the OCR issued a letter stating that financial aid disparities are calculated by comparing the percentage of the total financial aid dollars awarded to each sex with their respective financial aid student-athlete percentage rate. For example, if females make up 48 percent of the student-athlete population, but only receive 45 percent of the athletically related financial aid, there would be a disparity of 3 percent. It further states that the OCR will presume discrimination where there exist unexplained disparities of greater than 1 percent.
The 2003 Further Clarification
After the Bush administration took office in 2001, substantial speculation existed over Title IX’s future. These concerns were fueled by the appointment of a commission charged with reviewing current law and recommending improvements in the law. This guidance, set forth in a “Dear Colleague” letter, supported current agency enforcement policies and practices and contained the following five points: (1) The three-part test for accessing compliance with the participation portion of Title IX provides schools with flexibility and will continue to be the test used by the OCR to determine compliance; (2) Title IX does not require the cutting or reduction of teams and such a practice is disfavored; (3) although the OCR will “aggressively enforce Title IX standards, including implementing sanctions for institutions that do not comply,” it will also work with schools to achieve compliance and thereby avoid such sanctions; (4) private donations to athletics programs are not exempt from Title IX equity considerations; and (5) OCR enforcement will be uniform throughout the country. In short, the Further Clarification restated and reincorporated the enforcement framework as set forth in the 1979 Policy Interpretation and the 1996 Clarification.
Title IX Grievance Procedures, Postsecondary Education
On August 4, 2004, the OCR issued another “Dear Colleague” letter. This document reminded institutions that Title IX regulations require schools to “designate a Title IX coordinator, adopt and disseminate a nondiscrimination policy, and put grievance procedures in place to address complaints of discrimination on the basis of sex in educational programs and activities.” The agency noted that several recent investigations had revealed that institutions were deficient in this area.
The 2010 Clarification
On April 20, 2010, the OCR rescinded the controversial 2005 “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test – Part Three.” In its stead, the OCR issued guidance for third-prong compliance that reverted to the 1996 clarification. The letter details the OCR expectations for efforts to evaluate interests and ability to compete in sports. Those efforts are expected to include the examination of multiple data sources. The use of a survey of admitted and enrolled students is not sufficient alone to demonstrate compliance. The letter provides clear suggestions for development and implementation of surveys as one of many evaluative tools.
The OCR’s Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students or Third Parties
Both the Department of Education and the U.S. Supreme Court have found that sexual harassment is a form of sexual discrimination prohibited by Title IX. In January 2001, the department published “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students or Third Parties.” That Title IX guidance updates and revises the original 1997 guidelines to incorporate and discuss important Supreme Court cases that were decided on the subject in the interim: Gebser v. Lago Vista Independent School District (a claim involving a teacher and student); Davis v. Monroe County Board of Education (student-on-student harassment); and Oncale v. Sundowner Offshore Services, Inc. (same-sex sexual harassment). The guidance is designed to help schools chart a course through what can sometimes be a very complicated area of the law.
OCR again issued guidance in 2010 and 2011 on related topics. In October of 2010 OCR issued guidance addressing school policy and obligations to prevent and address complaints of sexual harassment and bullying. The letter reminds institutions that anti-bullying policy must at a minimum comply with the protections afforded in federal and state law. OCR notes that “harassing conduct may take many forms, including verbal acts and name‐calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating. Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces.” The April 2011 guidance addresses school obligations related to allegations of sexual violence. The letter supplements the
2001 guidance and provides examples of proactive and expedient measures schools are expected to take.
The Equity in Athletics Disclosure Act (EADA), the NCAA Financial Report
and the Implications of Each for Purposes of Equity Compliance The Equity in Athletics Disclosure Act requires colleges and universities that receive federal financial assistance and that sponsor intercollegiate athletics to report annually to the Department of Education on athletics participation, staffing issues, revenues and expenses. The data, reported by sex, is then used by the Department of Education to prepare its annual report on gender equity in intercollegiate athletics to Congress. According to one of the co-authors of the 1996 law, then-Rep. Cardiss Collins, D-IIIinois, the intent of the
law is to provide a way to determine if schools that receive federal money treat student-athletes equitably. The law requires that the EADA report be made available to the general public October 15 and submitted to the Department of Education by October 30. Each year before the passage of the EADA, there were no athletics financial reporting requirements for private schools.
The NCAA revenues and expenses reporting requires the same institutions to submit similar but not identical information to the NCAA annually. The NCAA report, however, is not due until January 15 annually to allow institutions to have an accounting firm or state auditor complete the financial audit of the most recent fiscal year.
Title IX and Pregnancy
Title IX guarantees equal educational opportunity to pregnant and parenting students. This means that student-athletes cannot be discriminated against in the event of their pregnancy, childbirth, conditions related to pregnancy, false pregnancy, termination of pregnancy or recovery there from, or parental or marital status; and they must be offered reinstatement to the same position after pregnancy as they held before the onset of pregnancy. Some actions that may be permissible under NCAA rules are impermissible under Title IX.