Title IX of the Education Amendments of 1972
20 U.S.C. sec. 16819(a)
Title IX Sex Discrimination

Gender Equity in School Athletic Programs

No persons in the United States, on the basis of sex ,be excluded from participation in, or be denied the benefits of, or be subjected to discrimination
under any education program or activity
receiving Federal financial assistance.

Office of Civil Rights policy interpretation sets a three-pronged testfor whether an educational institution complies
with the duty to provide equality in its opportunities to participate in intercollegiate athletics

First Prong:
Substantially Proportionate

Whether intercollegiate level participation for male and female students
are provided in numbers substantially proportionate to their respective enrollments

Second Prong Program Expansion
Where members of one sex have been underrepresented among intercollegiate athletics

Whether the institution can show a history and continuing practice of program expansion

which is demonstrably responsive to the developing interests and abilities of the members of that sex

Third Prong

interests & abilities
presently accommodated

Where the members of one sex are underrepresented among intercollegiate athletics, and the institution cannot show a continuing practice of program expansion

Whether it can be demonstrated that the interests and abilities of the members of that sex
have been fully and effectively accommodated by the present program.
44 Fed.Reg. 71418 (12-11-79)

Defendants bear the burden of proof
with respect to second (program expansion) and third (present accommodation) prongs.

Three major areas of regulatory compliance to include
athletic financial assistance
equivalence in other benefits and opportunities
accommodation of student interest

34 CFR 106.41(c)
Equal Opportunity
A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics SHALL provide equal opportunity for members of both sexes

In determining whether equal opportunities are available the Director [OCR] will consider among other factors:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice time;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic tutoring;

(6) Assignment and compensation of coaches and tutors;

(7) Provision of locker rooms, practice and competitive facilities

(8) Provision of medical and training facilities and services;

(9) Provision of housing and dining facilities and services;

(10) Publicity.

CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY GUIDANCE:

THE THREE-PART TEST

Office of Civil Rights, U.S. Department of Education

Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs and activities.

the "three-part test," a test used to determine whether students of both sexes are provided nondiscriminatory opportunities to participate in athletics.

institutions need to comply only with any one part of the three-part test in order to provide nondiscriminatory participation opportunities for individuals of both sexes.

The first part of the test--substantial proportionality--focuses on the participation rates of men and women at an institution and affords an institution a "safe harbor" for establishing that it provides nondiscriminatory participation opportunities.

The second part--history and continuing practice--is an examination of an institution's good faith expansion of athletic opportunities through its response to developing interests of the underrepresented sex at that institution.

The third part--fully and effectively accommodating interests and abilities of the underrepresented sex--centers on the inquiry of whether there are concrete and viable interests among the underrepresented sex that should be accommodated by an institution.

Clarification does not provide strict numerical formulas or "cookie cutter" answers to the issues that are inherently case- and fact-specific.

Such an effort not only would belie the meaning of Title IX, but would at the same time deprive institutions of the flexibility to which they are entitled when deciding how best to comply with the law.

there are three different avenues of compliance.

An institution can choose to eliminate or cap teams as a way of complying with part one of the three-part test.

However, nothing in the Clarification requires that an institution cap or eliminate participation opportunities for men.

CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY GUIDANCE: THE THREE-PART TEST

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX),

prohibits discrimination on the basis of sex in education programs and activities by recipients of federal funds.

Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

THREE-PART TEST -- Part One: Are Participation Opportunities Substantially Proportionate to Enrollment?

Who are receiving the institutionally-sponsored support normally provided to athletes competing at the institution involved, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport's season; and

Who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sport's season; and

Who are listed on the eligibility or squad lists maintained for each sport, or

Who, because of injury, cannot meet a, b, or c above but continue to receive financial aid on the basis of athletic ability.

As a general rule, all athletes who are listed on a team's squad or eligibility list and are on the team as of the team's first competitive event are counted as participants by OCR.

athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.

whether participation opportunities are "substantially" proportionate to enrollment rates.

determination on a case-by-case basis, rather than through use of a statistical test.

If an institution's enrollment is 52 percent male and 48 percent female and 52 percent of the participants in the athletic program are male and 48 percent female, then the institution would clearly satisfy part one.

natural fluctuations in an institution's enrollment and/or participation rates may affect the percentages

if the institution's admissions the following year resulted in an enrollment rate of 51 percent males and 49 percent females, while the participation rates of males and females in the athletic program remained constant, the institution would continue to satisfy part one because it would be unreasonable to expect the institution to fine tune its program in response to this change in enrollment.

OCR would also consider opportunities to be substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team,

Institution A is a university with a total of 600 athletes. While women make up 52 percent of the university's enrollment, they only represent 47 percent of its athletes.

If the university provided women with 52 percent of athletic opportunities, approximately 62 additional women would be able to participate.

Because this is a significant number of unaccommodated women, it is likely that a viable sport could be added. If so, Institution A has not met part one.

THREE-PART TEST -- Part Two: Is there a History and Continuing Practice of Program Expansion for the Underrepresented Sex?

OCR will review the entire history of the athletic program, focusing on the participation opportunities provided for the underrepresented sex.

whether past actions of the institution have expanded participation opportunities for the underrepresented sex in a manner that was demonstrably responsive to their developing interests and abilities.

focus is on whether the program expansion was responsive to developing interests and abilities of the underrepresented sex.

must demonstrate a continuing (i.e., present) practice of program expansion as warranted by developing interests and abilities.

FACTORS

an institution's record of adding intercollegiate teams, or upgrading teams to intercollegiate status, for the underrepresented sex;

an institution's record of increasing the numbers of participants in intercollegiate athletics who are members of the underrepresented sex; and

an institution's affirmative responses to requests by students or others for addition or elevation of sports.

FACTORS

an institution's current implementation of a nondiscriminatory policy or procedure for requesting the addition of sports (including the elevation of club or intramural teams) and the effective communication of the policy or procedure to students; and

an institution's current implementation of a plan of program expansion that is responsive to developing interests and abilities.

institution's efforts to monitor developing interests and abilities

conducting periodic nondiscriminatory assessments of developing interests and abilities and taking timely actions in response to the results.

OCR will not find a history and continuing practice of program expansion where an institution increases the proportional participation opportunities for the underrepresented sex by reducing opportunities for the overrepresented sex alone

or by reducing participation opportunities for the overrepresented sex to a proportionately greater degree than for the underrepresented sex.

part two considers an institution's good faith remedial efforts through actual program expansion.

OCR will not find that an institution satisfies part two

where it merely promises to expand its program for the underrepresented sex at some time in the future.

requests of students and coaches.

significant increase in girls' high school participation in that sport.

cannot show a continuing practice of program expansion that is responsive to the developing interests and abilities of the underrepresented sex where its only action since 1991 with regard to the underrepresented sex was to eliminate a team for which there was interest, ability and available competition.

added a women's varsity team.

upgraded a women's club sport

increased the size of an existing women's team

based on a nationwide survey of the most popular girls high school teams.

elimination of the team in 1984 took place within the context of continuing program expansion for the underrepresented sex that is responsive to their developing interests.

THREE-PART TEST -- Part Three: Is the Institution Fully and Effectively Accommodating the Interests and Abilities of the Underrepresented Sex?

whether an institution is fully and effectively accommodating the interests and abilities of its students who are members of the underrepresented sex -- including students who are admitted to the institution though not yet enrolled.

does not require an institution to accommodate the interests and abilities of potential students.

where there is evidence that the imbalance does not reflect discrimination, i.e.,

where it can be demonstrated that, notwithstanding disproportionately low participation rates by the institution's students of the underrepresented sex, the interests and abilities of these students are, in fact, being fully and effectively accommodated.

whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team.

If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport

a) Is there sufficient unmet interest to support an intercollegiate team?

requests by students and admitted students that a particular sport be added;

requests that an existing club sport be elevated to intercollegiate team status;

participation in particular club or intramural sports;

interviews with students, admitted students, coaches, administrators and others regarding interest in particular sports;

results of questionnaires of students and admitted students regarding interests in particular sports;

and participation in particular in interscholastic sports by admitted students.

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).

student questionnaire or an open forum, to identify students' interests and abilities.

OCR does not require elaborate scientific validation of assessments.

evaluation of interest should be done periodically so that the institution can identify in a timely and responsive manner any developing interests and abilities of the underrepresented sex.

take into account sports played in the high schools and communities from which the institution draws its students

b) Is there sufficient ability to sustain an intercollegiate team?

the athletic experience and accomplishments--in interscholastic, club or intramural competition--of students and admitted students interested in playing the sport;

opinions of coaches, administrators, and athletes at the institution regarding whether interested students and admitted students have the potential to sustain a varsity team; and

if the team has previously competed at the club or intramural level, whether the competitive experience of the team indicates that it has the potential to sustain an intercollegiate team.

Neither a poor competitive record nor the inability of interested students or admitted students to play at the same level of competition engaged in by the institution's other athletes is conclusive evidence of lack of ability.

c) Is there a reasonable expectation of competition for the team?

whether there is a reasonable expectation of intercollegiate competition for a particular sport in the institution's normal competitive region.

In evaluating available competition, competitive opportunities offered by other schools against which the institution competes; and

competitive opportunities offered by other schools in the institution's geographic area, including those offered by schools against which the institution does not now compete.

CONCLUSION

nothing in the three-part test requires an institution to eliminate participation opportunities for men.

Improvements in the quality of competition, and of other athletic benefits, provided to women athletes, while not considered under the three-part test, can be considered by OCR

in making an overall determination of compliance with the athletics provision of Title IX.

institution is not required, as it is under part three, to accommodate all interests and abilities of the underrepresented sex.

an institution has flexibility in choosing which teams it adds for the underrepresented sex, as long as it can show overall a history and continuing practice of program expansion for members of that sex.

OCR does examine an institution’s recruitment practices

where an institution recruits potential student athletes for its men's teams, it must ensure that women's teams are provided with substantially equal opportunities to recruit potential student athletes.

Cohen
v.
Brown University
991 F.2d 888 (1st Cir. 1993)
Decided April 16, 1993

Brown appeals injunction ordering reinstatement of women's gymnastics and volleyball program to full intercollegiate varsity status
pending resolution of Title IX claim

Absence of women's athletics
until '70
'71 Brown subsumed Pembroke
upgraded Pembroke athletic programs

'77, 14 women's varsity teams
Since '77, added winter track

'91-92, 15 teams,
one fewer than men

Spring '91 announced budget cuts,

dropping 4 sports from intercollegiate varsity athletic roster
women's volleyball and gymnastics

men's golf and water polo

Permitted continued play as "intercollegiate clubs"
could compete against other varsity teams (many schools reluctant to play against clubs)

financial subsidies and support services routinely available to varsity teams cut off

Brown estimated savings at $77,813 per annum
women's volleyball ($37,127) gymnastics ($24,901)

men's water polo ($9,250), golf ($6,545)

Before cuts, Brown athletics 328 varsity slots for females
566 varsity slots for male athletes

women 36.7%; men 63.3% of opportunities

Abolishing 4 varsity teams took substantially more dollars from the women's athletic budget than from the men's
but did not materially affect the athletic opportunity ratios

women retained 36.6%;
men 63.4%

Brown student body approx. 52% men, 48% women

trial court granted injunction requiring reinstatement of women's teams pending outcome of trial

Civil Rights Restoration Act of 1987,
20 U.S.C. 1687

Congress scrapped program-specific approach and reinstated institution-wide application of Title IX

Restoration Act required that if any arm of an educational institution received federal funds the institution as a whole must comply with Title IX's provisions

Regulations also recognize that an athletic program may consist of gender-segregated teams as long as 1 of 2 conditions is met

the sport is which the team competes is a contact sport, or

the institution offers comparable teams in the sport to both genders
34 CFR 106.41(a)

Applying first factor, district court found Brown failed to effectively accommodate the interests and abilities of female athletes
in the selection and level of sports

With regard to effective accommodation of student interests and abilities
an institution can violate Title IX even if it meets the "financial assistance" and "athletic equivalence" standards

An institution that offers women a smaller number of athletic opportunities than the statute requires may not rectify that violation
simply by lavishing more resources on those women or achieving equivalence in other respects

Safe harbor for institutions that distribute athletic opportunities
in numbers "substantially proportionate"
to the gender composition of their student bodies.

Avoid extensive Title IX compliance analysis
by maintaining gender parity
between student body and athletic lineup

Today, gender balance unlikely
few universities prone to expand athletic opportunities in era of fiscal austerity

Most try to satisfy Title IX
by satisfying third prong of accommodation test

satisfying interests and abilities of the underrepresented gender

Sets high standard:
demands not merely some accommodation

but full and effective accommodation

If there is sufficient interest and ability
in statistically underrepresented gender

not satisfied by existing programs

institution fails test

Mere fact there are some female students interested in a sport
does not in and of itself require school to provide a varsity team

in order to comply with interest and abilities test

Rather, ensure participatory opportunities at intercollegiate level when
to the extent sufficient interest and ability among excluded sex to sustain viable team

and a reasonable expectation of intercollegiate competition for that team

Institution must remain vigilant
"upgrading the competitive opportunities
available to the historically disadvantaged sex...
...as warranted by developing abilities among the athletes of that sex
until the opportunities for, and levels of, competition
are equivalent by gender.

Can also bring institution into compliance
with proportionality test
by subtraction and downgrading

reducing opportunities for overrepresented gender
while keeping opportunities stable for the underrepresented gender

or reducing them to a much lesser extent

Brown argued:
accommodates
if it allocates athletic opportunities to women

in accordance with the ratio of

interested and able women to interested and able men

regardless of the number of unserved women
or the percentage of the student body they comprise

Such a rule would almost certainly blunt exhortation
that schools should take into account...
...the nationally increasing levels of women's interests and abilities
and avoid disadvantaging members of an underrepresented sex

Burden of Proof: plaintiff must show disparity between gender composition of student body and athletic program
thereby proving that there is an underrepresented gender

Then, plaintiff must show second element - unmet interest is present
plaintiff must prove that the underrepresented gender has not been "fully and effectively accommodated by the present program."

If plaintiff provides evidence of disparity and unmet interest
Title IX case is proven,

unless university shows an affirmative defense

History and continuing practice of program expansion
which is demonstrably responsive to the developing interests and abilities of the members of the underrepresented gender

Title IX does not purport to override financial necessity
Yet, the pruning of athletic budgets cannot take place solely in comptrollers' offices

isolated from the legislative and regulatory imperatives that Title IX imposes.

Even balanced use of the budget-paring knife
runs afoul of Title IX
where, as here, the fruits of a university's athletic program

remain ill-distributed after the trimming takes place.