Title IX

Title IX of the Education Amendments Act of 1972 is a federal law that 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 activity receiving federal financial assistance.”

What is Title IX?

Title IX applies to educational institutions that receive any federal funds and prohibits discrimination in all educational programs and activities, not just athletics.

Athletic programs are considered educational programs and activities. Title IX gives women athletes the right to equal opportunity in sports in educational institutions that receive federal funds, from elementary schools to colleges and universities. While there are few private elementary, middle school or high schools that receive federal funds, almost all colleges and universities, private and public, receive such funding.

The penalty for non-compliance with Title IX is withdrawal of federal funds. Despite the fact that most estimates are that 80 to 90 percent of all educational institutions are not in compliance with Title IX as it applies to athletics, such withdrawal of federal moneys has never been initiated. When institutions are determined to be out of compliance with the law, the United States Department of Education Office for Civil Rights (OCR) finds them “in compliance conditioned on remedying identified problems.”

Title IX requires that every educational institution have a Title IX Compliance Coordinator. The OCR is the primary agency charged with its enforcement. However, to date, this agency’s enforcement efforts have been inadequate. Any person, regardless of whether they have been harmed by failure of the educational institution to comply with the law, may file a Title IX complaint with the OCR which is obligated to investigate such a complaint within a specified time period. The person filing the complaint may request that his or her identity be kept confidential. Individuals who have been harmed by failure of the institution to comply have an individual right to sue under the law and almost 95% of such lawsuits having to do with athletic program violations have been successful.

There are three parts to Title IX as it applies to athletics programs: (1) effective accommodation of student interests and abilities (participation), (2) athletic financial assistance (scholarships), and (3) other program components (the “laundry list” of benefits to and treatment of athletes). The “laundry list” includes equipment and supplies, scheduling of games and practice times, travel and daily per diem allowances, access to tutoring, coaching, locker rooms, practice and competitive facilities, medical and training facilities and services, publicity, recruitment of student athletes and support services.

Title IX compliance is assessed via a total program comparison. In other words, the entire men’s and women’s programs are to be compared, not just one men’s team to the women’s team in the same sport. This broad comparative provision was intended to emphasize that Title IX does not require the creation of mirror image programs. Males and females can participate in different sports according to their respective interests and abilities. Thus, broad variations in the type and number of sports opportunities offered to each gender are permitted.

Title IX does not require equal expenditure of funds on male and female athletes. The only dollar for dollar expenditure requirement is in the athletic financial assistance area, where schools are required to spend dollars proportional to participation rates. Thus, if $200,000 is awarded in athletic scholarships and the participation ratio of male to female athletes is 50/50, $100,000 must be awarded to female athletes and $100,000 must be awarded to male athletes. In other areas, the equality standard is one of equal opportunity.

With regard to Title IX’s participation requirements, a school can meet the standard via three independent tests. The first test is a mathematical safe harbor. If the school offers athletic participation opportunities (number of individual athlete participation slots, not numbers of teams) proportional to the numbers of males and females in the general student body, the school meets the participation standard. If the school does not meet this mathematical test, it may be deemed in compliance if it can (1) demonstrate consistent expansion of opportunities for the underrepresented gender over time or (2) show that the athletic program fully met the interests and abilities of the underrepresented gender. The courts have ruled that “boys are more interested in sports than girls” is not an acceptable defense to lack of equitable participation opportunities.

Under Title IX there are no sport exclusions or exceptions, so football is included under the law. Individual participation opportunities (numbers of athletes participating rather than number of sports) in all men’s sports and all women’s sports are counted in determining whether a school meets the Title IX participation standard. The basic philosophical underpinning of Title IX is that there cannot be an economic justification for discrimination. The school cannot maintain that there are revenue production or other considerations that mandate that male athletes receive better treatment or participation opportunities than female athletes. A good analogy would be that a school cannot say that it cannot afford to provide wheelchair access for students with physical disabilities as required under the Americans With Disabilities Act because the football team needs the money in order to maintain its current level of revenue production. Similarly, a school cannot say that it cannot afford to provide participation opportunities for an underrepresented gender.

It is also important to recognize that Title IX does not require the reduction of opportunities for male athletes in order to increase opportunities for female athletes. Schools that choose this manner of compliance are not meeting the spirit of discrimination laws, which is to bring members of the disadvantaged group up to the participation or benefit levels of the advantaged group rather than to bring male athletes down to the current level of poor treatment or no opportunity to play experienced by female athletes. If athletic budgets do not increase and schools desire to maintain current levels of participation for male athletes and increase participation levels of female athletes, the solution is to give all teams a smaller portion of the budget pie.

Typically, athletic departments have refused to “tighten the belt” of popular men’s sports like football, and have cut men’s non-revenue producing sports instead and blamed it on Title IX. Three points should be made in this regard: (1) it is dysfunctional to “pit the victims against the victims” — men’s non-revenue sports against women’s sports, both of which have been traditionally underfunded, (2) over 80% of all college football programs and almost all high school football programs lose money, and (3) nothing negative would happen to men’s revenue-producing sports if their budgets were decreased across the board with all schools and all teams lowering expenditures simultaneously so the playing field is kept level. In fact, football expenditures have continued to increase at rates higher than inflation. For example, according to National Collegiate Athletic Association gender equity studies comparing 1992 and 1997 budgets, average per school dollar increases to Division I-A men’s sports operating budgets over the last five years were three (3) times the increases to women’s sports operating budgets (men=$1.37 million/women=$400,000). Sixty-three percent or $872,000 of the $1.37 million amount went to football. Further, the $872,000 increase in football budgets exceeded the total average operating budget amount spent on all of women’s sports ($662,000/yr) by more than $200,000.

While there are considerable misconceptions and inaccuracies surrounding the discussion of Title IX as it applies to athletic programs, it is important to understand the basic premise of the law: Title IX is an important federal civil rights act that guarantees that our daughters and sons are treated in a like manner with regard to all educational programs and activities, including sports.

Do not reprint without permission.
Submitted for publication in the Encyclopedia of Women’s Sports, August, 1998.

History of Title IX

Take a look at where we were before 1972, and celebrate the obstacles we’ve overcome along the way.

June 23, 1972
Title IX of the Education Amendments is enacted by Congress and is signed into law by Richard Nixon. The sponsors of Title IX are Birch Bayh (Senate) and Edith Green (House of Representatives). Title IX prohibits sex discrimination in any educational program or activity receiving any type of federal financial aid.

May 20, 1974
Senator Tower proposes the “Tower Amendment,” which would exempt revenue-producing sports from determinations of Title IX compliance. The amendment is rejected.

July 1974
In the spirit of Senator Tower’s failed amendment, Senator Javits submits an amendment directing HEW to issue regulations that provide for “reasonable provisions considering the nature of particular sports” (e.g., event-management needs, etc.) that clarifies that event and uniform expenditures on sports with larger crowds or more expensive equipment do not have to be matched in sports without similar needs.

May 27, 1975
President Ford signs the Title IX athletics regulations and submits them for congressional review (pursuant to Section 431(d)(1) of the General Education Provisions Act).

June 1975
Rep. O’Hara introduces House Bill 8394, which proposes that sports revenues first be used to offset the cost of that sport, and only then to support other sports. The proposed change would effectively alter Title IX’s coverage in athletics. This bill dies in committee before reaching the House floor.

July 21, 1975
Congress reviews and approves Title IX regulations and rejects the following resolutions advanced to disapprove the athletics regulations:

  • June 4, 1975: Title IX was presented to Congress in its present form
  • June 5, 1975, and June 17, 1975: Senator Helms (S. Con. Res. 46) and Rep. Martin (H. Con. Res. 310) condemn Title IX in its entirety
  • June 17, 1975: Rep. Martin (H. Con. Res. 311) disapproves of Title IX only as it pertains to intercollegiate athletics
  • July 16, 1975: Sens. Laxalt, Curtis and Fannin (S. Con. Res. 52) disapprove of the application of Title IX to intercollegiate athletics
  • July 21, 1975: Sen. Helms introduces S. 2146 in an attempt to prohibit the application of Title IX regulations to athletics in situations in which participation in those athletic activities are not a required part of the institution’s curriculum (Sen. Helms re-introduced S. 2146 as S. 535 in 1977)

Title IX federal regulations are issued in the area of athletics. High schools and colleges are given three years, and elementary schools one year, to comply.

February 17, 1976
NCAA challenges the legality of Title IX.

July 15, 1977
Senators Tower, Bartlett, and Hruska introduce Senate Bill (S. 2106), proposing to exclude revenue-producing sports from Title IX coverage. The bill dies in committee before reaching the Senate floor.

HEW issues proposed policy “Title IX and Intercollegiate Athletics” for notice and comment.

July 21, 1978
Deadline for high schools and colleges to comply with Title IX athletics requirements.

December 11, 1979
HEW issues final policy interpretation on “Title IX and Intercollegiate Athletics.” Rather than relying exclusively on a presumption of compliance standard, the final policy focuses on each institution’s obligation to provide equal opportunity and details the factors to be considered in assessing actual compliance (Participation requirements are currently referred to as the “3-Prong-Test”). 1

Department of Education is established and given oversight of Title IX through the Office for Civil Rights (OCR). 2

February 28, 1984
Grove City v. Bell limits the scope of Title IX, effectively taking away coverage of athletics except for athletic scholarships. The Supreme Court concludes that Title IX only applies to specific programs (i.e. Office of Student Financial Aid) that receive federal funds. Under this interpretation, athletic departments are not necessarily covered.

March 22, 1988
The Civil Rights Restoration Act of 1987 is enacted into law over the veto of President Ronald Reagan. This act reverses Grove City, restoring Title IX’s institution-wide coverage. If any program or activity in an educational institution receives federal funds, all of the institution’s programs and activities must comply with Title IX.3

September 6, 1988
Haffer v. Temple University Title IX athletics lawsuit won by plaintiff female athletes gives new direction to athletic departments regarding their budgets, scholarships, and participation rates of male and female athletes.

April 2, 1990
Valerie M. Bonnette and Lamar Daniel author A Title IX Athletics Investigator’s Manual, issued by the Office for Civil Rights.4

February 26, 1992
In Franklin v. Gwinnett County Public Schools, the Supreme Court rules that monetary damages are available under Title IX. Previously, only injunctive relief was available (i.e., the institution would be enjoined from discriminating in the future).

Shortly after the Franklin decision, the NCAA completes and publishes a landmark Gender-Equity Study of its member institutions.

Sen. Mosley-Braun (S. 1468) and Rep. Collins (H.R. 921) sponsor the Equity in Athletics Disclosure Act (EADA), requiring that any co-educational institution of higher education that participates in any federal student financial aid program and that sponsors an intercollegiate athletics program must disclose certain information concerning its intercollegiate athletics program. Under the EADA, annual reports are required.5

January 16, 1996
OCR issues a clarification of the three-part “Effective Accommodation Test” that reiterates the requirements of the policy interpretation that institutions may choose any one of three independent tests to demonstrate that they are effectively accommodating the participation needs of the underrepresented gender.

October 1, 1996
All institutions of higher education must make available, to all who inquire, specific information on their intercollegiate athletics department, as required by the Equity in Athletics Disclosure Act.6

November 21, 1996
A federal appeals court upholds a lower court’s ruling in Cohen v. Brown University, holding that Brown University illegally discriminated against female athletes. Brown argues that it did not violate Title IX because women are less interested in sports than men. Both the district court and the court of appeals rejects Brown’s argument. Many of the arguments offered by Brown are similar to those relied upon by colleges and universities all over the country.

June 23, 1997
Twenty-fifth anniversary of the passage of Title IX.

February 20, 2001
The Supreme Court issues a decision in Brentwood v. Tennessee Secondary School Athletic Association, holding that a high school athletic association is a “state actor” and thus subject to the Constitution. This means, for example, that the Equal Protection Clause of the 14th Amendment applies to athletic associations in gender equity suits.

December 17, 2001
Communities for Equity v. Michigan High School Athletic Association is decided, holding a state athletic association liable under Title IX, the Equal Protection Clause, and Michigan state law for discriminating against girls by forcing six girls’ sports, but no boys’ sports, teams to compete in nontraditional and/or disadvantageous seasons.

February 2002
The National Wrestling Coaches Association, College Gymnastics Association, and the U.S. Track Coaches Association, along with several other groups representing male athletes and alumni of wrestling programs at Bucknell, Marquette, and Yale, filed suit alleging that Title IX regulations and policies are unconstitutional.

May 29, 2002
The U.S. Department of Justice (DOJ) filed a motion to dismiss on narrow procedural grounds a complaint filed in federal court against the U.S. Department of Education attacking the three-prong test developed for schools to determine their compliance with Title IX in women’s athletics programs.

June 23, 2002
Thirtieth anniversary of the passage of Title IX.

June 27, 2002
The U.S. Secretary of Education Rod Paige announced the establishment of a Commission on Opportunities in Athletics. The stated purpose of the Commission is “to collect information, analyze issues and obtain broad public input directed at improving the application of current Federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX. The Commission will recommend to the Secretary, in a written report, whether those standards should be revised, and if so, how the standards should be revised. The Commission will also recommend other steps that might be taken to improve the effectiveness of Title IX and to maintain and build upon the extraordinary progress that has resulted from its passage 30 years ago.

July 11, 2003
The Office for Civil Rights of the United States Department of Education issued a “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.” The Further Clarification reaffirms the validity and effectiveness of long-standing administrative regulations and policies governing this application.7

March 17, 2005
The Department of Education issued a policy guidance (“the Additional Clarification”) that significantly weakens Title IX. Schools can now simply send out an e-mail survey to their female students, asking them what additional sports they might have the interest and ability in playing. And if the survey responses do not show enough interest or ability, they do not have to add any sports – and are presumed in compliance with Title IX.

June 23, 2007
Thirty-fifth anniversary of the passage of Title IX.

April 20, 2010
The Department of Education issued a policy guidance which rescinded the aforementioned “Additional Clarification” and all related documents including the recommended survey.8

April 4, 2011
The Department of Education issued a policy guidance which made clear that Title IX’s protections against sexual harassment and sexual violence apply to all students, including athletes. It addresses athletics departments in particular when it requires schools to use the same procedures that apply to all students to resolve sexual violence complaints involving student athletes.9

June 23, 2012
Fortieth anniversary of the passage of Title IX.

Some information in this timeline is adapted from the University of Iowa’s History of Title IX Legislation, Regulation and Policy Interpretation.

1. http://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html
3. http://www.govtrack.us/congress/bills/100/s557
4. http://www.eric.ed.gov/ERICWebPortal/search/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED400763&ERICExtSearch_SearchType_0=no&accno=ED400763
5. http://ope.ed.gov/athletics/
6. http://www2.ed.gov/about/offices/list/ocr/docs/clarific.html
7. http://www2.ed.gov/about/offices/list/ocr/title9guidanceFinal.html
9. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html