Liability Under Title IX: Parties and Standards

Any public school or university that receives federal funding is required to abide by Title IX of the Education Amendments of 1972. Generally, this means schools must not discriminate against anyone (including students, staff, and other parties) on the basis of gender. In practice, Title IX ensures that a student's (or applicant's) status is not influenced by his or her gender, as well as providing equal access to sports and other school-sponsored activities. When a school violates Title IX provisions, certain parties may be held liable for discrimination.

This article focuses on liability under Title IX, including who may be held liable and which standards are used to determine liability. See Title IX and Sex Discrimination in Amateur Athletics and Title IX Claims by Student-Athletes and Coaches for more details.

Who Can Be Held Liable Under Title IX?

Title IX  amounts to a contract between the government and the funding recipient
(schools receiving federal funds). Elementary schools, junior high schools, high schools, and both undergraduate and graduate colleges and universities all must comply with Title IX if they receive federal funding and wish to continue receiving it. However, schools may be exempt if they have had a continuous policy and tradition of admitting students of only one gender (indeed, some students prefer single-gender schools). Federally funded schools also are exempt from Title IX suits that arise from claims over jobs in which sex is a bona fide occupational qualification, as might be the case for those hired to clean or monitor locker rooms.

School boards, school districts, colleges, and universities are the most common recipients of federal funding, and thus they are also the most common targets of Title IX lawsuits. Since Title IX supersedes the states' Eleventh Amendment immunity in this area of law, state governments themselves may also be sued in federal court for discrimination that occurs at one of their federally-funded, state-sponsored academic institutions.

Who is Protected by Title IX?

Title IX bars sex discrimination in any interscholastic, intercollegiate, intramural, or club athletic program offered by a federally-funded academic institution. This prohibition has two prongs. First, it prohibits sex discrimination against students participating in or seeking to participate in a school-sponsored sport. Second, it prohibits sex discrimination against persons employed or seeking employment with a school sponsored athletic program. (including persons employed or seeking employment as athletic directors, athletic coordinators, coaches, physical therapists, trainers, or any other job within a school's athletic program).

Factors Considered When Evaluating Title IX Claims 

Under both prongs, the law requires federally funded academic institutions to guarantee equal opportunity for student-athletes and employees without regard to gender. Ten specific factors may be considered in determining whether this obligation has been met:

1. The particular sports and levels of competition selected by an institution to accommodate members of both sexes
2. The quality and quantity of equipment and supplies that are provided to teams of each gender
3. The scheduling of games and practice time
4. Travel and per diem allowances
5. Opportunities to receive coaching and academic tutoring 
6. Compensation of coaches and tutors 
7. Provision of locker rooms, as well as practice and competitive facilities
8. Provision of medical and training facilities and services
9. Provision of housing and dining facilities and services
10. Publicity afforded to each gender's athletic programs

Gender Equality in Collegiate Sports 

The circumstances of each case determine how much weight is allotted to a given factor in resolving Title IX disputes. Nonetheless, a significant portion of litigation has focused on the first factor, and courts will normally ask three questions when evaluating whether an academic institution has taken steps to effectively accommodate athletes of both sexes:

1. Does the number of athletic opportunities provided for males and females proportionately represent their respective overall enrollments to a substantial degree?
2. Does the academic institution have a history of expanding programs to accommodate female interests and abilities in sports?
3.  If so (question #2), has that institution fully and effectively accommodated those interests and abilities? 

If a preponderance of the evidence offered during a Title IX proceeding answers these questions in the affirmative, the defendant will normally prevail. Plaintiffs are more likely to prevail when the defendant has a poor or inconsistent record on these issues.