Title IX and Sex Discrimination in Amateur Athletics
Sex Discrimination and Title IX
Sex discrimination is a hotly debated and litigated issue in amateur athletics. Title IX of the Education Amendments Act of 1972 provides that "[n]o person in the United States may, upon the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." 20 U.S.C.A. §§ 1681 et seq. The phrase "education program or activity" has been broadly interpreted to include athletic programs. Title IX may be enforced by the federal government in an administrative proceeding or by a private individual in civil court. The law guarantees equal protection at all federally funded academic institutions for both male and female student-athletes and male and female persons employed by school athletic programs.
Congress enacted Title IX to serve as a catalyst against sex discrimination at federally funded academic institutions, to encourage the development of athletic programs for female student athletes, and to stimulate female participation in school sports. Within eleven years of Title IX's enactment, statistics revealed that progress was being made toward these goals. In 1983, more than 150,000 women were participating in college sports, compared with 32,000 in 1972, while the number of colleges and universities offering athletics scholarships to women increased from 60 in 1974 to 500 in 1981. By 2000, about 151,000 women engaged in athletics in the NCAA and 2.8 million females engaged in high school sports.
The U.S. Department of Education (DOE), acting through the Office of Civil Rights (OCR), is primarily responsible for implementing Title IX. The OCR promulgates regulations to enforce Title IX, initiating administrative proceedings against alleged violators, and terminating federal funding for proven violators. Although neither Title IX nor any of its amendments expressly authorizes an individual to bring a lawsuit against a violator independent of an action brought by the DOE or OCR, the U.S. Supreme Court has ruled that Title IX implies a private cause of action pursuant to which aggrieved individuals may seek redress for sex discrimination in federal court without first having exhausted their administrative remedies. Cannon v. University of Chicago (1979).
Parties Subject to Liability
Title IX conditions the offer of federal funding on each funding recipient's promise not to discriminate on the basis of sex, in what amounts to a contract between the government and the funding recipient. Elementary schools, junior high schools, high schools, and both undergraduate and graduate colleges and universities must comply with Title IX if they receive federal funding and wish to continue receiving it. However, federally funded recipients may be exempted from liability under Title IX if they have had a continuous policy and tradition of admitting students of only one gender. 20 U.S.C.A. § 1681(a)(5). Federally funded recipients are also exempt from Title IX suits that arise from employment discrimination claims over jobs in which sex is a bona fide occupational qualification, as might be the case for persons hired to clean or monitor locker rooms and toilet facilities.
As noted above, athletic departments and athletic programs infrequently receive federal funding directly from the federal government. The same holds true for directors, coaches, trainers, and other individuals employed by school athletic programs. Instead, 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 litigation. Since Title IX has been interpreted as abrogating 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.
Standards for Liability
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. The first prong prohibits sex discrimination against students participating in or seeking to participate in a school-sponsored sport. The second prong 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.
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) the opportunities to receive coaching and academic tutoring; (6) the compensation of coaches and tutors; (7) the provision of locker rooms, as well as practice and competitive facilities; (8) the provision of medical and training facilities and services; (9) the provision of housing and dining facilities and services; and (10) the publicity afforded to each gender's athletic programs. 34 C.F.R. § 106.41.
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; and, of so, (3) 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.
Student-Athletes' Title IX Claims
A court's analysis will also depend on whether the plaintiff is a disgruntled student-athlete or a disgruntled employee. For disgruntled student-athletes, Title IX does not compel federally funded educational institutions to sponsor one program for each gender in every sport the institution sponsors. However, if a school sponsors only one program for a sport, then that school must allow members of both sexes to try out for the team, unless the sport is a contact sport, in which case the school may limit participation to one gender. Conversely, if a school sponsors only one program for a contact sport and then allows members of both sexes to compete for the team, the school may not exclude an athlete from the team on account of his or her gender. "Contact" sports include boxing, wrestling, rugby, ice hockey, football, and basketball. 45 C.F.R. § 86.41.
Disgruntled students may also allege that they have been victims of sexual harassment in violation of Title IX. Sexual harassment typically consists of receiving unwanted sexually oriented comments, receiving unwanted sexually oriented physical contact, or working in a sexually charged environment. The threshold of liability is higher for sexual harassment than it is for sex discrimination. To prevail on a Title IX sexual harassment claim, a plaintiff must show that the institution was aware of the harassment, exercised control over both the harassed and the environment in which the harassment occurred, and that harassment was serious enough to have the systemic effect of denying the victim equal access to participate in an athletic program. Mere name-calling or teasing will not give rise to a Title IX harassment claim, even when the offensive comments single out differences in gender.
Courts are more inclined to find that offensive comments give rise to Title IX liability when they are made by a coach or a person acting in an official capacity for the academic institution. Plaintiffs are less likely to prevail when the offensive behavior takes the form of student-on-student or athlete-on-athlete harassment. In such instances, the plaintiff must not only prove that the academic institution was aware of the harassment and had authority to stop the harassment, but also that the harassment was "so severe, pervasive, and objectively offensive" that it amounted to "deliberate indifference" by the institution in failing to stop it. Davis Next Friend LaShonda D. v. Monroe County Board of Education (U.S. 1999). Thus, sexual harassment by fans, athletes, or coaches from opposing schools is generally not actionable.
Coaches' Title IX Claims
The statutory proscription against sex discrimination in education programs and activities encompasses employment discrimination, which means that any person working for an athletic program at a federally funded academic institution is entitled to protection from Title IX. The law protects employees in all aspects of their employment, ranging from hiring and compensation to promotion, demotion, suspension, and termination, regardless of the position held by the employee and regardless of whether the federally funded academic institution is a tiny elementary school or an enormous Division I university.
Since 1990, a large number of Title IX employment discrimination complaints have been filed by college coaches. Frequently, these claims allege that the head coach of a women's college team is being discriminated against because she is being paid less than the head coach of the men's team for the same sport and from the same school. Courts will consider several factors in evaluating these claims, including the following: (1) the differing rates of compensation; (2) the duration of the contracts; (3) provisions relating to contract renewal; (4) the relative training and experience of the two coaches; (5) the nature of the coaching duties performed by each; (6) working conditions; (7) professional standing; (8) other terms and conditions of employment; and (9) other professional qualifications.
A plaintiff instituting a private action to enforce Title IX may not ordinarily recover compensatory damages, unless the plaintiff offers evidence that the discrimination was willful, deliberate, or intentional. Injunctive relief is the remedy most regularly sought in Title IX actions. Injunctions may take the form of an order compelling an academic institution to cease an offending practice or an order compelling the institution to take specific action to level the playing field for the victims of discrimination. Prevailing Title IX plaintiffs may also recover attorney's fees and expert witness fees pursuant to 42 U.S.C.A. § 1988. Additionally, when the Title IX defendant is a state government, plaintiffs may pursue remedies available under the Civil Right Act, which prohibits discrimination by state actors. 42 U.S.C.A. § 1983. Both compensatory and punitive damages are recoverable in section 1983 actions.
Litigants who are unhappy with a federal agency's decision made pursuant to Title IX may generally appeal that decision to a federal district court as provided in 20 U.S.C.A. § 1683. However, if the agency's decision involves terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with a Title IX requirements, then judicial review may only be pursued as provided in 5 U.S.C.A. § 701 et seq. Title IX does not contain a statute of limitations, so both administrative agencies and judicial bodies rely on the most analogous statute of limitations provided by the law of the state from which the discrimination complaint originated.
Criticisms of Title IX
Title IX is not without its critics. This is particularly true of those who are involved with low-profile men's sports, such as wrestling or diving. According to some critics, schools have eliminated some smaller men's sports in order to finance women's sports. Supporters of Title IX have countered that the reason why the smaller sports have been sacrificed is because schools refuse to divert money from men's sports that produce the most revenue, particularly football and basketball. In 2003, a 15-member Commission on Opportunities in Athletics studied Title IX in order to make recommendations for strengthening and improving the statute. The report suggested that the Department of Education should reaffirm its commitment to enforcing Title IX and should aggressively enforce its provisions in a uniform way. Nevertheless, the debate about the positive and negative effects of this statute has continued.
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