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.

Background

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