Athletics and title IX of the 1972 education amendments

• Author: Leanne Aban
• Pages: 381-415

ATHLETICS AND TITLE IX OF THE 1972 EDUCATION

AMENDMENTS

EDITED BY LEANNE ABAN

I. INTRODUCTION .. ........................................ 382

II. OVERVIEW OF TITLE IX............... .................... 383

A. RECENT HISTORY OF TITLE IX .......................... 383

B. NON-ATHLETIC APPLICATIONS OF TITLE IX . . . . . . . . . . . . . . . . . 385

1. Sexual Harassment . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 385

2. Employment Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

III. SUITS UNDER TITLE IX ................... ................ 387

A. BASIC FRAMEWORK .................................. 389

1. Participation Opportunities . . . . . . .. . . . . . . . . . . . . . . . . 389

2. Qualification as a Sport . . . . . . . . . . . . . . . . . . . . . . . . . . 393

3. Scholarships, Treatment, and Benefits . . . . . . . . . . . . . . . 395

B. INCREASED OPPORTUNITIES FOR PARTICIPATION IN TEAM SPORTS . . . 395

C. DISCRIMINATION AGAINST TRANSGENDER STUDENT-ATHLETES . . . . 396

D. DISCRIMINATION AGAINST COACHES AND OTHER ATHLETIC

OFFICIALS ......................................... 400

E. BOOSTER CLUBS, PRIVATE SPONSORSHIP, AND REVENUE-PRODUCING

SPORTS .... ....................................... 400

F. RETALIATION AGAINST WHISTLEBLOWERS . . . . . .. . . . . . . . . . . . . 402

1. Failure of Jackson v. Birmingham in the Lower Courts . . 402

2. Jackson’s Success in the Supreme Court . . . . . . . . . . . . . 403

3. The Impact of Jackson . . . . . . . . . . . . . . . . . . . . . . . . . . . 404

G. ALTERNATIVE CONSTITUTIONAL CLAIMS .................... 405

IV. TITLE IX ADMINISTRATION AND ENFORCEMENT . . . . .. . . . . . . . . . . . . . 405

A. THE GOVERNMENT’S ROLE IN ADMINISTERING TITLE IX ........ 406

1. Remedies Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

2. Recent Administrative Developments . . . . . . .. . . . . . . . . 407

B. PRIVATE CAUSES OF ACTION ............................ 408

1. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408

a. Proper Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408

b. Proper Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . 409

2. Remedies in a Private Cause of Action . . . .. . . . . . . . . . . 410

V. CONCLUSION ........................................... 414

381

I. INTRODUCTION

Congress passed Title IX of the 1972 Education Amendments (Title IX or the Act)

to end sex-based discrimination in education.

1

Title IX states, “[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 ac-

tivity receiving Federal financial assistance . . . .”

2

The Act is most widely known for

its application to sports, specifically in expanding opportunities for female athletes,

though it also applies in situations involving sexual harassment and employment dis-

crimination. While the Act never explicitly addresses athletics, prior to the passage of

the Act, athletics were recognized as a part of the educational process and subject to

the Equal Protection Clause of the Fourteenth Amendment.

3

Title IX has greatly impacted female participation in athletics. The number of

female high school athletes increased from less than 300,000 in 1972 to nearly

3.5 million in the 2018–2019 school year, though participation dropped from

2021–2022.

4

Maya Riser-Kositsky & Holly Peele, Statistics on School Sports: How Many Students Play Sports?

Which Sports Do They Play?, EDUCATIONWEEK (July 30, 2021), https://perma.cc/3L3E-6ZFF; Sarah D.

Sparks, School Sports Participation Drops, Raising Concern About ‘Physical Learning Loss’,

EDUCATIONWEEK (Sept. 28, 2022), https://perma.cc/D3NY-3CEE.

At the collegiate level, six times more women compete in athletics

now than before the Act was passed.

5

Sarah Pruitt, How Title IX Transformed Women’s Sports, HISTORY (June 11, 2021), https://perma.

cc/YPP7-X7BG.

Though no transgender student athlete has

brought a Title IX case thus far, scholars have articulated a legal theory by which a

transgender student athlete could sue the National Collegiate Athletic Association

(NCAA) under a theory of sex-discrimination.

6

While the Biden Administration

has largely withdrawn federal guidelines that deemed transgender athletes’ par-

ticipation in sports a Title IX violation, such discrimination lawsuits may be im-

minent given the Supreme Court’s decision in Bostock v. Clayton County and

the wave of state laws restricting rights for transgender youth proposed and

passed from 2020–2022.

7

Koko Nakajima & Connie Hanzhang Jin, Bills targeting trans youth are growing more common —

and radically reshaping lives, NPR (Nov. 28, 2022), https://perma.cc/E23M-KAD8.

This Article describes the framework of Title IX legislation in the context of

high school and intercollegiate athletics. First, the Article explores common

issues in athletics litigation, including claims regarding increased participation

opportunities, competition on teams of the opposite sex, sexual harassment, dis-

crimination against athletics coaches, and private sponsorship and funding of

school athletic teams. Next, the Article discusses Jackson v. Birmingham Board

of Education,

8

the most recent Supreme Court case concerning Title IX in ath-

letics, as well as the implications of the Court’s decision in Bostock v. Clayton

1. See Title IX of the 1972 Education Amendments, 20 U.S.C. § 1681.

2. Id. § 1681(a).

3. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971).

4.

5.

6. See infra Section III.C.

7.

8. 544 U.S. 167 (2005).

382 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:381

County on how courts will interpret the definition of “sex” in Title IX moving for-

ward.

9

A discussion on the administration and enforcement of Title IX, including

the available remedies, limitations to recovery, and alternatives to litigation, fol-

lows. Finally, this Article covers how state laws have attempted to ban transgen-

der athletes from competing in sports.

II. OVERVIEW OF TITLE IX

A. RECENT HISTORY OF TITLE IX

Title IX of the Education Amendments of 1972 prohibits the use of federal funds to

support sexually discriminatory practices in educational programs and provides citi-

zens with administrative and judicial relief from such discriminatory practices.

10

Congress enacted Title IX in response to evidence of discrimination against women in

accessing educational opportunities.

11

Policy, legislation, and judicial interpretation

shaped the development of Title IX. The Office of Civil Rights (OCR) within the

Department of Education is primarily responsible for administering Title IX. The

OCR regulations concerning athletics opportunities are enumerated in the Code of

Federal Regulations and preclude sex-based discrimination in athletics.

12

OCR addi-

tionally issues policy interpretations to more precisely define schools’ accountability

under Title IX.

13

See generally A Policy Interpretation: Title IX and Intercollegiate Athletics, U.S. DEP’T OF

EDUC. (Dec. 11, 1979), https://perma.cc/4MXA-CTJS [hereinafter Policy Interpretation]; Clarification

Of Intercollegiate Athletics Policy Guidance: The Three-Part Test, U.S. DEP’T OF EDUC. (Jan. 16, 1996),

https://perma.cc/J72Q-FTXP [hereinafter Three-Part Test]; Valerie M. Bonnette & Lamar Daniel, Title

IX Athletics Investigator’s Manual, OFF. FOR C.R., U.S. DEP’T OF EDUC. (1990), https://perma.cc/ZLY2-

S4KM [hereinafter Investigator’s Manual].

These regulations and policy interpretations provide guidance to

courts adjudicating claims under Title IX,

14

and courts generally give deference to

OCR’s regulations and policy interpretations.

15

9. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

10. Title IX of the 1972 Education Amendments, 20 U.S.C. §§ 1682–83.

11. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523 n.13 (1982) (citing 118 Cong. Rec. 5804

(statement of Sen. Evan Bayh)); Cohen v. Brown Univ. (Cohen IV), 101 F.3d 155, 165 (1st Cir. 1996)

(referring to “extensive hearings held in 1970 by the House Special Subcommittee on Education”).

12. See, e.g., 34 C.F.R. § 106.41(a) (2018) (“No person shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, be treated differently from another person or otherwise be

discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a

recipient, and no recipient shall provide any such athletics separately on such basis.”).

13.

14. See Policy Interpretation, supra note 13.

15. See, e.g., N. Haven Bd. of Educ., 456 U.S. at 538–40 (giving deference to section E of Policy

Interpretation, supra note 13, when dealing with employment); Chalenor v. Univ. of N.D., 291 F.3d

1042, 1047 (8th Cir. 2002) (giving controlling deference to Policy Interpretation, supra note 13, as a

reasonable interpretation of the regulation); Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608,

615 (6th Cir. 2002) (holding that Policy Interpretation, supra note 13, is entitled to deference by the

courts); Cohen v. Brown Univ. (Cohen II), 991 F.2d 888, 895 (1st Cir. 1993) (finding that OCR’s Policy

Interpretation, supra note 13, should be afforded “appreciable deference”); Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council Inc., 467 U.S. 837, 844 (1984) (holding that regulations promulgated by agency

pursuant to explicit delegation by Congress should be given “controlling weight”); Roberts v. Colo.

State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993) (holding that OCR’s Policy Interpretation, supra

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