Title Ix Litigation in the 1990's: the Courts Need a Game Plan

• Publication year: 1995
• Citation: Vol. 18 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 18, No. 3SPRING 1995

Title IX Litigation in the 1990's: The Courts Need a Game Plan

Christopher Raymond(fn*)

I. Introduction

While most people agree upon the need for gender equity, especially at our institutions of higher learning, its application to women's collegiate athletics generates passionate responses from many perspectives. Feminist activists view this issue as an opportunity to advance women's equality and reverse past discrimination.(fn1) Others, particularly football coaches, view gender equity as a potential threat to the very existence of college football and to the future of all intercollegiate athletics.(fn2) Administrators, caught in the middle, see an administrative nightmare as all sides demand shares of increasingly limited resources.(fn3)

Title IX,(fn4) the law that prohibits sex discrimination in educational institutions that receive federal money, was enacted in 1972. Even though regulations governing Title IX's impact on athletics were promulgated between 1975 and 1980,(fn5) litigation was limited throughout the 1970's and 1980's because of court-imposed hurdles and a dramatic increase in funding for women's athletics.

However, this debate has been moving from campuses to courtrooms with increasing frequency. A spate of new cases has been filed within the past two years.(fn6) Courts are having to decide the compliance status of universities, and to design remedies in cases where violations exist. As courts examine this issue, key differences in the way courts enforce the law emerge. If Title IX is to succeed in creating an equitable distribution of opportunities without endangering the health of athletics as a whole, courts should not place the interests of individual plaintiffs above the interests of all athletes. Courts should concentrate on solutions that look to the long term health of athletics and the success of Title IX.

Part II of this Comment is a brief history of Title IX, from the enacting legislation through the 1980's. Part III summarizes recent decisions, identifying the issues courts are grappling with and what lines, if any, are being drawn. In Part IV, analyzes three issues which are repeatedly presented in recent cases. These issues are those upon which the courts have disagreed, or which pose potential problems in future litigation: 1) how should courts treat the tensions between the individual plaintiffs and the class-oriented goals of Title IX; 2) how much deference should school administrators be given when making budget decisions; and 3) is it appropriate to award monetary damages to successful plaintiffs?

This Comment concludes that the long term goals of Title IX, as well as the overall success of college sports, are better served by .treating all claims as class actions, by giving administrators more deference than some courts have been willing to give, and by refusing to grant monetary damages. In essence, courts need to promote long term success rather than the short term goals of individuals.

II. Background

Following hearings in 1970, Congress set about to stop sex discrimination on college campuses.(fn7) That effort resulted in the adoption of Title IX of the Educational Amendments of 1972.(fn8) Attempts in Congress to divest athletics from the scope of Title IX failed.(fn9)

Once Title IX became law, regulations were promulgated to define and enforce the requirements of gender equity. After the regulations were finalized and enforcement began, women at various universities began to use litigation as a tool to enforce their rights. This Part briefly summarizes Title IX's evolution in order to set a context for the examination of current trends.

A. The Requirement of Title IX

The thrust of Title IX is clear: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to, discrimination under any education program or activity receiving Federal financial assistance."(fn10) Certain institutions are exempt from this law,(fn11) but most universities fall under the auspices of the statute.(fn12)

As a model for Title IX, Congress used Title VI's attempt to curb racial discrimination in higher education.(fn13) However, there are important differences between enforcing gender and racial equity in education. Congress specifically defined Title IX's purpose as ensuring equitable opportunities for both genders, not a forced mixing of the genders.(fn14) The law, by focusing on opportunities for members of both genders, allowed for the continuation of separate programs for the two genders.(fn15) Thus, Title IX appears to apply the discredited racial doctrine of "separate but equal"(fn16) to enforce gender equity.

B. Administrative Regulations

After passing Title IX, Congress transferred enforcement power to the Department of Health, Education, and Welfare (HEW).(fn17) Once jurisdiction was conferred to HEW, HEW promulgated rules and standards governing investigations into institutional compliance on a wide variety of issues, including athletics, and began to enforce these standards in 1980.(fn18) These regulations require that, while separate teams may exist for men and women, women must be allowed to participate on men's teams in non-contact sports if no women's team is sponsored.(fn19) The regulations further require that institutions "provide equal athletic opportunity for members of both sexes."(fn20) The regulations list ten factors to use in detennining whether the requirement is satisfied.(fn21)

Of these ten, the first, accommodation of the interests and abilities of both sexes, has been cited most frequently in recent Title IX decisions.(fn22) The HEW policy interpretation set out three questions to be asked in determining compliance with this provision of the regulations: (1)whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or(2) where the members of one sex have been and are under-represented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or(3) where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of that sex have been fully and effectively accommodated by the present program.(fn23)

If the answer to any of these questions is yes, the university is in compliance. If the answer to all three questions is negative, then the university is in violation of Title IX.(fn24) Because some of this standard's terms are vague, the government attempted to provide some guidance in the investigator's manual of the Office of Civil Rights (OCR).(fn25) For example, the manual notes that "there is no set ratio that constitutes 'substantially proportionate' or that, when not met, results in a disparity or a violation."(fn26) However, the manual does suggest that the ratio of male to female athletes should be as close as possible to the overall ratio of male to female students.(fn27) Courts have also provided some guidance by holding that disparities of 10.5%(fn28) and 11.6%(fn29) are unacceptable.

These regulations have held up under attack for fifteen years. After the regulations were promulgated, the National Collegiate Athletic Association (NCAA) filed suit to have them thrown out.(fn30) The courts rejected the NCAA's arguments, firmly acknowledging the jurisdiction of the HEW and the power of the HEW to formulate regulations governing conduct.(fn31)

Since then, courts have routinely stated that they give "great deference" to the standards developed in the regulations.(fn32) Even though the regulations were meant for administrative review rather than as a legal test, recent court decisions have uniformly applied the standards of the HEW and the OCR.(fn33) This has been the case even when the court in question has stated that the regulations are in conflict with the plain meaning of the initial legislation or require results which were not Congress' intent.(fn34)

C. Judicial Interpretations of Title IX 1979 -1989

Once HEW developed regulations, the government began investigating university actions.(fn35) In addition, women athletes began taking their universities to court seeking redress for violations.(fn36) These cases raised a series of questions, the most predominant of which were: 1) was there an implied right of action in Title IX; 2) what programs were under the control of Title IX; and 3) what relief was appropriate in Title IX cases? The answers to these three questions governed the scope and effectiveness of Title IX litigation throughout the 1980's.

1. Implied right of action

In many early Title IX cases, defendant institutions tried to have cases dismissed by claiming that individual students could not sue under Title IX. The universities argued that the law did not give students the right to sue. They argued that the law mandated conditions for receiving federal funding, not legal rights that could be enforced by a court.

Initially, courts were divided on this...