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Title IX and Sex Discrimination in Amateur Athletics

In amateur athletics, a law has been crucial for promoting fairness and equality. This law is known as Title IX of the Education Amendments of 1972. It aims to prevent sex discrimination, especially in intercollegiate athletics.

Let's take a closer look at how Title IX works.

Sex Discrimination and Title IX of the Education Amendments of 1972

Sex discrimination happens when a person is treated less favorably because of gender. This is against the law because of Title IX. 

Title IX 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. This phrase includes athletic programs.

The federal government may enforce Title IX in an administrative proceeding, or it can be enforced by a private individual in civil court. The law guarantees equal protection at all federally funded academic institutions. This protects student-athletes and persons employed by school athletic programs. This rule applies in many areas, including amateur athletic teams. It applies in both public schools and universities.

Background of Title IX

Title IX was created because of the stark disparities between participation opportunities offered for male and female students. Before Title IX, women's teams were underfunded and overlooked. Female athletes had fewer opportunities to play sports. Their teams received less support than men's teams. 

Congress enacted Title IX to serve as a catalyst to prevent sex discrimination at federally funded academic institutions. It was enacted to encourage the development of athletic programs for female student-athletes. It was also meant to stimulate female participation in school sports.

Within 11 years of Title IX's enactment, statistics revealed that progress was being made toward these goals. In 1983, more than 150,000 women participated in college sports. This is compared with 32,000 in 1972. 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 participated in athletics in the NCAA. About 2.8 million females were engaged in high school sports.

The U.S. Department of Education (DOE), acting through the Office for Civil Rights (OCR), is primarily responsible for implementing Title IX. The OCR creates regulations to enforce Title IX. The office initiates administrative proceedings against alleged violators. It also ends federal funding for proven violators.

Title IX does not expressly authorize individuals to bring lawsuits against a violator separate from an action by the DOE or OCR. However, the U.S. Supreme Court has ruled that Title IX implies a private cause of action.

Aggrieved individuals may seek redress for sex discrimination in federal court. They can do this without first having exhausted their administrative remedies due to Cannon v. University of Chicago (1979). Since the creation of Title IX, there has been a focus on ensuring fair and equal athletic participation.

Parties Subject to Liability Under Title IX

Title IX conditions the offer of federal funding on each funding recipient's promise not to discriminate based on sex. This amounts to a contract between the government and the recipient. Elementary schools, middle schools, and high schools must abide by Title IX. Undergraduate colleges, graduate colleges, and universities must also comply with Title IX. They must do this if they receive federal funding and wish to continue receiving it.

Sometimes, groups that get federal funding can avoid trouble under Title IX. This can happen if they've always only let in students of one gender under 20 U.S.C.A. § 1681(a)(5). They can also avoid Title IX cases that come up because of job discrimination. This is true if being a certain gender is a real job requirement. For example, this could be true for people hired to clean or check on locker rooms or bathrooms.

Under Title IX, several parties could be held responsible for sex discrimination:

  • Educational institutions: These include public schools and universities that get federal money
  • Athletic associations: These include groups that manage and organize intercollegiate athletic programs
  • Coaches and staff: If a coach or staff member discriminates based on sex, they could be held accountable under Title IX

Most of the time, athletic departments and programs don't get money directly from the federal government. The same goes for people who work for school sports programs. This can include directors, coaches, and trainers. Instead, school boards, school districts, colleges, and universities usually get federal money, so they are the ones most often taken to court for Title IX cases.

Title IX has been interpreted as abrogating the state's Eleventh Amendment immunity. State governments can also be sued in federal court for discrimination. This can happen at one of their federally-funded, state-sponsored academic institutions.

Standards for Liability Under Title IX

Title IX says that any school program that gets federal money can't discriminate based on gender. This rule has two parts. The first part says students can't be treated unfairly because of their gender. This includes when they are playing or trying to play a sport sponsored by the school. 

The second part says that people can't be treated unfairly when they are at work or trying to get a job in a sports program. This includes jobs like athletic directors, coordinators, coaches, and physical therapists. It also includes trainers or any other job in a school's sports program.

The law says that both students and employees in a school sports program should have the same opportunities regardless of their gender. This is true for any school program that gets federal money. To see if a school is following this rule, people can look at ten specific things. These are listed in rule 34 C.F.R. § 106.41:

  1. The particular sports and levels of the 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
  10. The publicity afforded to each gender's athletic programs

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. To prove a Title IX violation, it must be shown that:

  • The student body makeup is not reflected in the athletic participation rates of women and men. This is known as the proportionality standard.
  • The institution is not continuing practice to expand athletic opportunities for the underrepresented sex.
  • The institution's athletic program does not fully and effectively accommodate the abilities and interests of the underrepresented sex.

The standard for these cases is a preponderance of the evidence. If it is found, by a preponderance of the evidence, that these factors are met, the defendant will prevail. Plaintiffs are more likely to prevail when the defendant has a poor or inconsistent record on these issues.

Student-Athletes' Title IX Claims

The way a court looks at things can depend on whether the person bringing the claim is a student-athlete or an employee. For student-athletes, Title IX does not force schools that get federal money to have one team for boys and one for girls. If a school only has one team for a sport, it has to let both boys and girls try out. This is unless the sport is a contact sport.

In contact sports, a school can choose to only let one gender play. If a school lets both boys and girls try out for a contact sport, it can't keep someone off of the team just because of their gender. Contact sports include:

  • Boxing
  • Wrestling
  • Rugby
  • Ice hockey
  • Football
  • Basketball

Students can also make a claim for sexual harassment under Title IX. Sexual harassment usually involves unwanted sexual comments or unwanted physical contact. It is harder to win a case for sexual harassment than it is for gender discrimination because the threshold of liability is higher in sexual harassment cases.

To prevail in a Title IX sexual harassment case, the plaintiff must prove the school knew about the harassment. They must show the school could have controlled both the person being harassed and where the harassment happened. They also must show the harassment was bad enough to stop the person from being part of a sports program. Simply calling names or teasing won't lead to a Title IX harassment case, even if the comments were made about gender.

Courts are more likely to say a school violated Title IX rules if a coach or official made offensive comments. It's harder to prevail if another student or athlete did the harassing. In those cases, you have to prove not only the school knew about it and could have stopped it, but also that the harassment was severe and happening frequently. It also has to be so bad that it seems like the school didn't seem to care about stopping it. 

Often, you can't take action about sexual harassment by fans, athletes, or coaches from other schools.

Student-athletes can claim Title IX if they feel their rights have been violated. They may claim that:

  • They need to have equal opportunities to participate in sports.
  • Their sports teams do not get the same treatment or benefits as those of the opposite sex.
  • Their athletic participation must be counted correctly, leading to misrepresented participation rates.

In our digital age, Title IX applies to HTML coding classes or online sports enrollment forms. Discrimination based on sex or national origin, even online, is against the law.

Coaches' Title IX Claims

The statutory proscription against sex discrimination in education programs and activities encompasses employment discrimination. This means that any person working for an athletic program is entitled to Title IX protections. This is true as long as the person works at a federally funded academic institution.

Since 1990, many 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. They allege 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:

  • The differing rates of compensation
  • The duration of the contracts
  • Provisions relating to contract renewal
  • The relative training and experience of the two coaches
  • The nature of the coaching duties performed by each
  • Working conditions
  • Professional standing
  • Other terms and conditions of employment
  • Other professional qualifications

Coaches, too, can bring Title IX claims, often involving disparities in:

  • Full-time and part-time employment opportunities
  • Budgets and resources for women's teams compared to men's teams
  • Eligibility criteria that unfairly affect one sex more than the other

This law protects employees in all aspects of their employment. This ranges from hiring and compensation to promotion. It also covers demotion, suspension, and termination. This is regardless of the employee's position. It is also irrespective of the size of the federally-funded academic institution. In other words, it applies to small elementary schools and large Division I universities alike.

Remedies for Title IX Violations

If you're taking someone to court to enforce Title IX, you typically can't get monetary damages. This is unless you can show the discrimination was done on purpose. Most people who go to court about Title IX want to stop the unfair treatment. This is called injunctive relief. This might look like getting a court order to make a school stop doing something, or it can be to make the school do something specific to even things out for those who face discrimination.

Prevailing Title IX plaintiffs may also recover attorney and expert witness fees. Additionally, when the Title IX defendant is a state government, plaintiffs may pursue remedies available under the Civil Rights Act. This Act prohibits discrimination by state actors under 42 U.S.C.A. § 1983. Both compensatory and punitive damages are recoverable in section 1983 actions.

If a Title IX violation is found, the Office for Civil Rights (OCR), part of the FED, can take action. The institution may need to:

  • Make changes to their policies and practices
  • Make sure budgets for men's and women's teams are fair and proportional
  • Correct any inaccuracies in how they count athletic participation

Litigants who are unhappy with a federal agency's decision made under Title IX may generally appeal that decision to a federal district court as provided in 20 U.S.C.A. § 1683. If the agency's decision involves terminating or refusing to grant or continue financial assistance upon a finding of failure to comply with Title IX requirements, the judicial review may only be pursued as provided in 5 U.S.C.A. §§ 702.

Title IX does not contain a statute of limitations. Hence, administrative agencies and judicial bodies rely on the most analogous statute of limitations provided by the law of the state where the discrimination complaint originated.

Criticisms of Title IX

Despite its benefits, Title IX has faced some criticisms. For instance, the Center for Individual Rights (CIR) argues that Title IX's focus on proportionality can unintentionally lead to the reduction of men's teams, especially in schools where women make up a more significant part of the student body.

According to some critics, schools have eliminated some minor men's sports to finance women's sports. This includes low-profile men's sports, such as wrestling or diving. Supporters of Title IX have countered that more minor sports have been sacrificed 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 to recommend strengthening and improving the statute. The report suggested that the Department of Education should reaffirm its commitment to enforcing Title IX and aggressively enforce its provisions uniformly. Nevertheless, the debate about this statute's positive and negative effects has continued.

Getting Legal Help With Title IX Claims

If you believe you have suffered from a violation of Title IX, you may need legal help. You could:

  • Contact a lawyer who concentrates on education law or civil rights
  • File a complaint with the OCR, providing all necessary details about the alleged violation
  • Gather and document any evidence that supports your claim

Contact an education attorney if you have more questions about sex discrimination in education and protections under Title IX.

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