Order Code RL31709
CRS Report for Congress
Received through the CRS Web
Title IX, Sex Discrimination, and
Intercollegiate Athletics:
A Legal Overview
Updated May 24, 2004
Jody Feder
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Title IX, Sex Discrimination, and Intercollegiate
Athletics: A Legal Overview
Summary
Enacted over three decades ago, Title IX of the Education Amendments of 1972
prohibits discrimination on the basis of sex in federally funded education programs
or activities. Although the Title IX regulations bar recipients of federal financial
assistance from discriminating on the basis of sex in a wide range of educational
programs or activities, such as student admissions, scholarships, and access to
courses, the statute is perhaps best known for prohibiting sex discrimination in
intercollegiate athletics.
Indeed, the provisions regarding athletics have proved to be one of the more
controversial aspects of Title IX. At the center of the debate is a three-part test that
the Department of Education (ED) uses to determine whether institutions are
providing nondiscriminatory athletic participation opportunities for both male and
female students. Proponents of the existing regulations point to the dramatic
increases in the number of female athletes in elementary and secondary school,
college, and beyond as the ultimate indicator of the statute’s success in breaking
down barriers against women in sports. In contrast, opponents contend that the Title
IX regulations unfairly impose quotas on collegiate sports and force universities to
cut men’s teams in order to remain in compliance. Critics further argue that the
decline in certain men’s sports, such as wrestling, is a direct result of Title IX’s
emphasis on proportionality in men’s and women’s college sports, and in 2002 the
National Wrestling Coaches Association filed a suit contending that the Title IX
policy is unlawful. This lawsuit, however, was dismissed by a federal judge in 2003,
and an appeals court upheld the dismissal in a ruling issued on May 14, 2004.
The debate over Title IX has escalated recently, partly in response to ED’s
decision in June 2002 to appoint a commission to study Title IX and to recommend
whether or not the athletics provisions should be revised. The Commission on
Opportunity in Athletics delivered its final report to the Secretary of Education in
February 2003. In response, ED issued new guidance in July 2003 that clarifies Title
IX policy but essentially leaves the three-part test unchanged.
This CRS report provides an overview of Title IX in general and the
intercollegiate athletics regulations in particular, as well as a summary of the
Commission’s report and ED’s response and a discussion of recent legal challenges
to the regulations and to the three-part test. For related reports, see CRS Report
RS20460, Title IX and Gender Bias in Sports: Frequently Asked Questions, and CRS
Report RS20710, Title IX and Sex Discrimination in Education: An Overview.

Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Title IX Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Title IX Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Title IX Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. Intercollegiate Athletics and the Policy Guidance . . . . . . . . . . . . . . . . . . . . . . 6
The Three-Part Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Proportionality Test and the Current Controversy . . . . . . . . . . . . . . . . . 8
ED’s Interpretation of the Title IX Proportionality Test . . . . . . . . . . . 10
The Title IX Review Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ED’s Response to the Title IX Commission: The 2003 Clarification . . . . . 13
IV. Title IX and the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cohen v. Brown University . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The National Wrestling Coaches Association Lawsuit . . . . . . . . . . . . . . . . 16

Title IX, Sex Discrimination, and
Intercollegiate Athletics: A Legal Overview
I. Introduction
Enacted over three decades ago, Title IX of the Education Amendments of 1972
prohibits discrimination on the basis of sex in federally funded education programs
or activities.1 Although the Title IX regulations bar recipients of federal financial
assistance from discriminating on the basis of sex in a wide range of educational
programs or activities, such as student admissions, scholarships, and access to
courses, the statute is perhaps best known for prohibiting sex discrimination in
intercollegiate athletics.
Indeed, the provisions regarding athletics have proved to be one of the more
controversial aspects of Title IX. At the center of the debate is a three-part test that
the Department of Education (ED) uses to determine whether institutions are
providing nondiscriminatory athletic participation opportunities for both male and
female students. Proponents of the existing regulations point to the dramatic
increases in the number of female athletes in elementary and secondary school,
college, and beyond as the ultimate indicator of the statute’s success in breaking
down barriers against women in sports. In contrast, critics contend that the Title IX
regulations unfairly impose quotas on collegiate sports and force universities to cut
men’s teams in order to remain in compliance.2 Critics further argue that the decline
in certain men’s sports, such as wrestling, is a direct result of Title IX’s emphasis on
proportionality in men’s and women’s college sports, and in 2002 the National
Wrestling Coaches Association filed a suit contending that the Title IX policy is
unlawful.3 This lawsuit, however, was dismissed by a federal judge in 2003,4 and an
appeals court upheld the dismissal in a ruling issued on May 14, 2004.5
The debate over Title IX has escalated recently, partly in response to ED’s
decision in June 2002 to appoint a commission to study Title IX and to recommend
1 20 U.S.C. §§ 1681 et seq.
2 June Kronholz, College Coaches Press Bush on Title IX, The Wall Street Journal, Aug. 27,
2002, at A4.
3 Lori Nickel and Nahal Toosi, Title IX Is Taken To Task, Milwaukee Journal Sentinel,
January 17, 2002 at C1.
4 Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 263 F. Supp. 2d 82 (D.D.C. June 11,
2003).
5 Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., Civ. No. 03-5169, 2004 U.S. App.
LEXIS 9426 (D.C. Cir. May 14, 2004).

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whether or not the athletics provisions should be revised.6 The Commission on
Opportunity in Athletics delivered its final report to the Secretary of Education in
February 2003.7 In response, ED issued new guidance in July 2003 that clarifies Title
IX policy but essentially leaves the three-part test unchanged.8
This CRS report provides an overview of Title IX in general and the
intercollegiate athletics regulations in particular, as well as a summary of the
Commission’s report and ED’s response and a discussion of recent legal challenges
to the regulations and to the three-part test. For related reports, see CRS Report
RS20460, Title IX and Gender Bias in Sports: Frequently Asked Questions, and CRS
Report RS20710, Title IX and Sex Discrimination in Education: An Overview.
II. Title IX Background
Enacted in response to a growing concern regarding disparities in the
educational experiences of male and female students, Title IX is designed to
eliminate sex discrimination in education. Although Title IX prohibits a broad range
of discriminatory actions, such as sexual harassment in elementary and secondary
schools or discrimination against women in graduate school admissions, Title IX is
perhaps best known for its role in barring discrimination against women in college
sports. Indeed, when the Department of Health, Education, and Welfare (HEW),
which was the predecessor agency of the Department of Education, issued policy
guidance regarding Title IX and athletics, the agency specifically noted that
participation rates for women in college sports “are far below those of men” and that
“on most campuses, the primary problem confronting female athletes is the absence
of a fair and adequate level of resources, services, and benefits.”9
Federal law regarding Title IX intercollegiate athletics consists of three basic
components: (1) the Title IX statute, which was enacted in the Education
Amendments of 1972 and amended in the Education Amendments of 1974;10 (2) the
Department of Education regulations, which were originally issued in 1975 by
HEW;11 and (3) ED’s policy guidance regarding Title IX athletics. The athletics
policy guidance is primarily comprised of two documents: (1) a 1979 Policy
6 Erik Brady, Major Changes Debated for Title IX, USA Today, Dec. 18, 2002, at A1.
7 The Secretary of Education’s Commission on Opportunity in Athletics, “Open to All”:
Title IX at Thirty
, Feb. 28, 2003, [http://www.ed.gov/pubs/titleixat30/index.html].
8 Department of Education, Further Clarification of Intercollegiate Athletics Policy
Guidance Regarding Title IX Compliance (July 11, 2003) (hereinafter 2003 Clarification).
9 Title IX of the Education Amendments of 1972; A Policy Interpretation: Title IX and
Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,419 (Dec. 11, 1979) (hereinafter 1979
Policy Interpretation).
10 Pub. L. 93-380.
11 34 CFR Part 106.

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Interpretation that established the controversial three-part test,12 and (2) a 1996
Clarification of the three-part test, which reinvigorated enforcement of Title IX in
intercollegiate athletics.13 In addition, ED issued a further clarification on July 11,
2003.14 Despite the public attention generated by the three-part test, it is important
to note that the test itself forms only a small part of the larger body of Title IX law.
A general overview of the Title IX statute and regulations is provided below, while
the athletics policy guidance and the legal debate surrounding Title IX and the three-
part test are described in greater detail in subsequent sections.
In addition to this substantial body of Title IX law and policy, one other federal
statute – the Equity in Athletics Disclosure Act15 – also applies to intercollegiate
athletics. Under this statute, colleges and universities are required to report statistical
data, broken down by sex, on undergraduate enrollment and athletic participation and
expenditures.
The Title IX Statute
Enacted over thirty years ago, the Title IX statute is designed to prevent sex
discrimination by barring recipients of federal funds from discriminating in their
education programs or activities. Specifically, the statute declares, “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,” subject to certain exceptions.16
The original Title IX legislation, which set forth the broad prohibition against
sex discrimination but provided little detail about specific programs or activities,
made no mention of college sports. However, the Education Amendments of 1974
directed HEW to issue Title IX implementing regulations “which shall include with
respect to intercollegiate athletic activities reasonable provisions considering the
nature of particular sports.”17 This provision was added after Congress eliminated a
section that would have made revenue-producing sports exempt from Title IX.18
It is important to note that, under Title IX, the receipt of any amount of federal
financial assistance is sufficient to trigger the broad nondiscrimination obligation
12 1979 Policy Interpretation, 44 Fed. Reg. 71,413.
13 Department of Education, Clarification of Intercollegiate Athletics Policy Guidance: The
Three-Part Test (Jan. 16, 1996) (hereinafter 1996 Clarification).
14 2003 Clarification.
15 20 U.S.C. § 1092(g).
16 Id. at § 1681(a). Exceptions include admissions to elementary and secondary schools,
educational institutions of religious organizations with contrary religious tenets, military
training institutions, educational institutions that are traditionally single-sex, fraternities and
sororities, certain voluntary youth service organizations such as the Girl or Boy Scouts,
father-son or mother-daughter activities at educational institutions, and beauty pageants. Id.
17 Pub. L. 93-380 § 844.
18 1979 Policy Interpretation, 44 Fed. Reg. 71,413, 71,413.

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embodied in the statute. This nondiscrimination obligation extends institution-wide
to all education programs or activities operated by the recipient of the federal funds,
even if some of the education programs or activities themselves are not funded with
federal dollars.19 For example, virtually all colleges and universities in the United
States are recipients of federal financial assistance because they receive some form
of federal aid, such as scientific research grants or student tuition financed by federal
loans. Once a particular school is deemed a recipient of federal financial assistance,
all of the education programs and activities that it operates are subject to Title IX.
Thus, if a college or university receives federal assistance through its student
financial aid program, its nondiscrimination obligation is not restricted solely to its
student financial aid program, but rather the obligation extends to all of the education
programs or activities conducted by the institution, including athletics and other
programs that do not receive federal funds. The provision regarding receipt of federal
funds, therefore, is the primary mechanism for compelling institutions to comply with
Title IX in their athletic programs.20
The Title IX Regulations
Because Title IX’s prohibition against sex discrimination extends to all
education programs or activities operated by recipients of federal funds, the scope of
Title IX is quite broad. While the statute lays out only the general prohibition against
sex discrimination, the implementing regulations specify the wide range of education
programs or activities affected. Indeed, the regulations bar recipients from
discriminating on the basis of sex in: student admissions, recruitment, scholarship
awards and tuition assistance, housing, access to courses and other academic
offerings, counseling, financial assistance, employment assistance to students, health
and insurance benefits and services, athletics, and all aspects of education-related
employment, including recruitment, hiring, promotion, tenure, demotion, transfer,
layoff, termination, compensation, benefits, job assignments and classifications,
leave, and training.21
Despite the wide array of programs and activities subject to Title IX, it is the
provisions on athletics that have generated the bulk of public attention and
controversy in recent years. Under the Title IX regulations, recipients of federal
financial assistance are prohibited from discriminating on the basis of sex in their
19 Department of Justice, Civil Rights Division, Title IX Legal Manual 51 (Jan. 11, 2001),
available at [http://www.usdoj.gov/crt/cor/coord/ixlegal.pdf].
20 For a brief period from 1984 to 1988, Title IX enforcement in college athletics was
suspended as a result of a Supreme Court ruling that Title IX was “program-specific,”
meaning that the statute’s requirements applied only to education programs that received
federal funds and not to an institution’s programs as a whole. Grove City College v. Bell,
465 U.S. 555, 574 (1984). Because few university athletic programs receive federal dollars,
college sports were essentially exempt from Title IX coverage after this decision. In the
Civil Rights Restoration Act of 1987 (Pub. L. 100-259), however, Congress overrode the
Supreme Court’s interpretation of Title IX by passing legislation to clarify that Title IX’s
requirements apply institution-wide and are not program-specific, thus reinstating Title IX’s
coverage of athletics. 20 U.S.C. § 1687.
21 34 CFR §§ 106.31-106.56.

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sports programs. Specifically, the regulations declare, “No person shall, on the basis
of sex, be excluded from participation in, be denied the benefits of, be treated
differently from another person or otherwise be discriminated against in any
interscholastic, intercollegiate, club or intramural athletics offered by a recipient.”22
In addition, recipients are barred from providing athletics separately on the basis of
sex, except under certain circumstances, such as when team selection is based on
competitive skill or the activity is a contact sport.23 Finally, the regulations require
institutions that provide athletic scholarships to make such awards available in
proportion to the numbers of male and female students participating in intercollegiate
athletics.24
An important principle embodied in the Title IX regulations on athletics is the
principle of equal opportunity. Under the regulations, recipients such as colleges and
universities must “provide equal athletic opportunity for members of both sexes.”25
When evaluating whether equal opportunities are available, the Department of
Education (ED) examines, among other factors, the provision of equipment and
supplies, scheduling of games and practice time, travel and per diem allowance,
opportunity to receive coaching and academic tutoring, assignment and compensation
of coaches and tutors, provision of locker rooms and practice and competitive
facilities, provision of medical training facilities and services, provision of housing
and dining facilities and services, and publicity.26 In addition, ED considers “whether
the selection of sports and levels of competition effectively accommodate the
interests and abilities of members of both sexes.”27 In order to measure compliance
with this last factor, ED established the three-part test that has been challenged by
opponents of existing Title IX policy.
To clarify how to comply with the intercollegiate athletics requirements
contained in the Title IX regulations, ED issued a Policy Interpretation in 197928 and
a subsequent Clarification of this guidance in 1996.29 Combined, these two
documents form the substantive basis of the policy guidance on the three-part test,
which has generated the bulk of the questions and concerns surrounding Title IX and
intercollegiate athletics. In addition, ED recently issued a further clarification in July
2003, but this document made only minor alterations to the 1979 Policy
Interpretation and the 1996 Clarification.30 These guidance documents are discussed
in greater detail in the section below.
22 Id. at § 106.41(a).
23 Id. at §106.41(b). Under the regulations, contact sports are defined to include boxing,
wrestling, rugby, ice hockey, football, and basketball.
24 Id. at § 106.37(c).
25 Id. at § 106.41(c).
26 Id.
27 Id.
28 1979 Policy Interpretation, 44 Fed. Reg. 71,413.
29 1996 Clarification
30 2003 Clarification.

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III. Intercollegiate Athletics and the Policy Guidance
As noted above, ED has set forth its interpretation of the intercollegiate athletics
provisions of the Title IX statute and implementing regulations in two documents:
the 1979 Policy Interpretation and the subsequent 1996 Clarification. These two
documents, which, according to the recently issued 2003 Clarification, remain in
force, were designed to provide guidance to colleges and universities regarding how
to achieve Title IX compliance by providing equal opportunity in their intercollegiate
athletic programs. To that end, both of the guidance documents discuss the factors
that ED considers when enforcing Title IX.31
Under the 1979 Policy Interpretation, HEW established three different standards
to ensure equal opportunity in intercollegiate athletics.32 First, with regard to athletic
scholarships, the compliance standard is that such aid “should be available on a
substantially proportional basis to the number of male and female participants in the
institution’s athletic program.”33 Second, HEW established a standard that male and
female athletes should receive “equivalent treatment, benefits, and opportunities” in
the following areas: equipment and supplies, games and practice times, travel and per
diem, coaching and academic tutoring, assignment and compensation of coaches and
tutors, locker rooms and practice and competitive facilities, medical and training
facilities, housing and dining facilities, publicity, recruitment, and support services.34
Finally, in terms of meeting the regulatory requirement to address the interests and
abilities of male and female students alike, the compliance standard is that such
interests and abilities must be equally effectively accommodated.35
In order to determine compliance with the latter accommodation standard, ED
considers three additional factors: (1) the determination of athletic interests and
abilities of students, (2) the selection of sports offered,36 and (3) the levels of
31 1979 Policy Interpretation, 44 Fed. Reg. 71,413; 1996 Clarification.
32 Although the Policy Interpretation focuses on formal intercollegiate athletic programs, its
requirements also apply to club, intramural, and interscholastic athletics. 1979 Policy
Interpretation, 44 Fed. Reg. 71,413.
33 Id. at 71,414. This requirement, however, does not mean that schools must provide a
proportional number of scholarships or that all individual scholarships must be of equal
value; the only requirement is that the overall amount spent on scholarship aid must be
proportional. Id. at 71,415.
34 Id. Such benefits, opportunities, and treatment need not be identical, and even a finding
of nonequivalence can be justified by a showing of legitimate nondiscriminatory factors.
According to the Policy Interpretation, “some aspects of athletic programs may not be
equivalent for men and women because of unique aspects of particular sports or athletic
activities.” The Policy Interpretation specifically cites football as an example of such a
sport. Id.at 71,415-16.
35 Id. at 71,414.
36 According to the Policy Interpretation, “the regulation does not require institutions to
integrate their teams nor to provide exactly the same choice of sports to men and women.
However, where an institution sponsors a team in a particular sport for members of one sex,
(continued...)

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competition available, including the opportunity for team competition.37 It is the
criteria used to assess this third and final factor that form the basis of the three-part
test. The three-part test, the debate over the test and its proportionality requirement,
ED’s Title IX review commission, and ED’s response to the Commission’s report are
discussed in detail below.
The Three-Part Test
Under the Policy Interpretation, in accommodating the interests and abilities of
athletes of both sexes, institutions must provide the opportunity for male and female
athletes to participate in competitive sports. ED measures an institution’s compliance
with this requirement through one of the following three methods:
(1) Whether intercollegiate level participation opportunities for male and female
students are provided in numbers substantially proportionate to their respective
enrollments; or (2) Where the members of one sex have been and are
underrepresented among intercollegiate athletes, whether the institution can show
a history and continuing practice of program expansion, which is demonstrably
responsive to the developing interest and abilities of the members of that sex ; or
(3) Where the members of one sex are underrepresented among intercollegiate
athletes, and the institution cannot show a continuing practice of program
expansion such as that cited above, whether it can be demonstrated that the
interests and abilities of the members of that sex have been fully and effectively
accommodated by the present program.38
These three methods for determining whether institutions are complying with
the Title IX requirement to provide nondiscriminatory participation opportunities for
both male and female athletes have come to be referred to as the three-part test. In its
1996 Clarification, which addresses only the three-part test, ED provides additional
guidance for institutions seeking to comply with Title IX.
According to the 1996 Clarification, an institution must meet only one part of
the three-part test in order to prove its compliance with the nondiscrimination
requirement.39 Thus, institutions may prove compliance by meeting: (1) the
proportionality test, which measures whether the ratio of male and female athletes is
substantially proportional to the ratio of male and female students at the institution,
(2) the expansion test, which measures whether an institution has a history and
continuing practice of expanding athletic opportunities for the underrepresented sex,
36 (...continued)
it may be required either to permit the excluded sex to try out for the team or to sponsor a
separate team for the previously excluded sex.” Id. at 71,417-18.
37 Id. at 71,417.
38 Id. at 71,418.
39 1996 Clarification.

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or (3) the interests test, which measures whether an institution is accommodating the
athletic interests of the underrepresented sex.40
In addition, the 1996 Clarification reiterates that ED examines many other
factors beyond those set forth in the three-part test when it evaluates an institution’s
Title IX athletics compliance.41 The 1996 Clarification also provides a more detailed
examination of the factors that ED considers under each of the three tests, as well as
examples illustrating how the various factors affect a finding of compliance or
noncompliance.42
The 2003 Clarification, which provides additional guidance regarding the three-
part test, is discussed separately below.
The Proportionality Test and the Current Controversy
The first prong of the three-part test – the proportionality test – is the most
controversial. Indeed, critics contend that proportionality amounts to an unfair system
of quotas. Because women’s enrollment in postsecondary schools has increased
dramatically in the decades since Title IX was enacted, rising 30 percent from 1981
to 1999,43 critics argue that proportionality results in reverse discrimination, forcing
schools to cut existing men’s teams in order to create new slots for women.44
Proponents of proportionality respond that Title IX does not require quotas
because schools that cannot demonstrate proportionality can still comply with Title
IX if they pass one of the two remaining parts of the three-part test. Supporters also
reject the notion that Title IX forces schools to eliminate men’s teams, arguing that
costly men’s sports like football are to blame for cuts in less popular sports for both
men and women. In addition, supporters note that instead of cutting men’s sports,
schools can achieve proportionality by adding women’s teams.45
Critics counter that even though the three-part test offers an alternative to the
proportionality approach in theory, in reality, maintaining proportionality is the only
sure way to avoid a lawsuit. Furthermore, say critics, even though schools can
technically comply with the proportionality standard by adding women’s teams,
budget realities often force institutions to cut men’s teams instead. Proponents,
however, respond that the vast majority of schools that add women’s teams do not
40 Dear Colleague Letter from the Department of Education’s Office for Civil Rights
regarding the Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test
(Jan. 16, 1996), available at [http://www.ed.gov/offices/OCR/docs/clarific.html]
(hereinafter Dear Colleague Letter).
41 1996 Clarification.
42 Id.
43 General Accounting Office, Intercollegiate Athletics: Four-Year Colleges’ Experiences
Adding and Discontinuing Teams 8 (March 2001).
44 Brady, supra note 6.
45 Id.

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eliminate men’s teams. Changing the proportionality test, say proponents, would be
tantamount to repealing a law that is widely credited for dramatically increasing
women’s interest, participation, and success in sports.46
In 2001, the General Accounting Office (GAO) released a study of
intercollegiate athletics. The GAO report included the following findings:
! “The number of women participating in intercollegiate athletics at
4-year colleges and universities increased substantially–from 90,000
to 163,000–between school years 1981-82 and 1998-99, while the
number of men participating increased more modestly–from 220,000
to 232,000.”47
! “Women’s athletic participation grew at more than twice the rate of
their growth in undergraduate enrollment, while men’s participation
more closely matched their growth in undergraduate enrollment.”48
! “The total number of women’s teams increased from 5,595 to 9,479,
a gain of 3,784 teams, compared to an increase from 9,113 to 9,149
teams for men, a gain of 36 teams.”49
! “Several women’s sports and more than a dozen men’s sports
experienced net decreases in the number of teams. For women, the
largest net decreases in the number of teams occurred in gymnastics;
for men, the largest decreases were in wrestling.”50
! In men’s sports, “the greatest increase in numbers of participants
occurred in football, with about 7,200 more players. Football also
had the greatest number of participants–approximately 60,000, or
about twice as many as the next largest sport. Wrestling experienced
the largest decrease in participation–a drop of more than 2,600
participants.”51
! “In all, 963 schools added teams and 307 discontinued teams since
1992-93. Most were able to add teams–usually women’s
teams–without discontinuing any teams.”52
46 Id.
47 General Accounting Office, Intercollegiate Athletics: Four-Year Colleges’ Experiences
Adding and Discontinuing Teams 4 (March 2001).
48 Id.
49 Id.
50 Id.
51 Id. at 10.
52 Id. at 5.

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! “Among the colleges and universities that added a women’s team,
the two factors cited most often as greatly influencing the decision
were the need to address student interest in particular sports and the
need to meet gender equity goals or requirements. Similarly, schools
that discontinued a men’s team cited a lack of student interest and
gender equity concerns as the factors greatly influencing their
decision, as well as the need to reallocate the athletic budget to other
sports.”53
ED’s Interpretation of the Title IX Proportionality Test.
Until recently, when ED appointed a commission to study changes in Title IX
athletics policy, the agency had historically favored the proportionality approach.
Among the factors that ED considers under the proportionality test are the number
of participation opportunities provided to athletes of both sexes. According to ED,
“as a general rule, all athletes who are listed on a team’s squad or eligibility list and
are on the team as of the team’s first competitive event are counted as participants.”54
ED next determines whether these participation opportunities are substantially
proportionate to the ratio of male and female students enrolled at the institution, but,
for reasons of flexibility, ED does not require exact proportionality.55
According to the 1996 Clarification, the proportionality test acts as a safe
harbor. In other words, if an institution can demonstrate proportional athletic
opportunities for women, then the institution will automatically be found to be in
compliance.56 If, however, an institution cannot prove proportionality, then the
institution can still establish compliance by demonstrating that the imbalance does
not reflect discrimination because the institution either (1) has a demonstrated history
and continuing practice of expanding women’s sports opportunities (prong two) or
(2) has fully and effectively accommodated the athletic interests of women (prong
three).
In its 2003 Clarification, ED specifically addressed the “safe harbor” language
in the 1996 guidance. Noting that the “safe harbor” phrase had led many schools to
believe erroneously that achieving compliance with Title IX could be guaranteed by
meeting the proportionality test only, ED reiterated that “each of the three prongs of
the test is an equally sufficient means of complying with Title IX, and no one prong
is favored.”57
Finally, the 1996 Clarification explicitly declares that “nothing in the three-part
test requires an institution to eliminate participation opportunities for men” and
53 Id.
54 1996 Clarification.
55 Id.
56 Dear Colleague Letter.
57 2003 Clarification.

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challenges the notion that the three-part test requires quotas.58 Rather, the 1996
Clarification states that “the three-part test gives institutions flexibility and control
over their athletic programs.”59 Furthermore, the 1996 Clarification notes that the
Policy Interpretation in general and the three-part test in particular have been upheld
by every court that has reviewed the guidance documents.60
The Title IX Review Commission
Although ED has enforced its Title IX policy, including the three-part test and
its proportionality standard, virtually unchanged since shortly after the statute was
enacted three decades ago, the agency recently considered whether or not to alter its
athletics policy. To that end, ED appointed the Commission on Opportunity in
Athletics in June 2002 to review Title IX and to recommend changes if warranted.
The commission, which held a series of meetings around the country to discuss
problems with and improvements to Title IX, issued its final report containing
findings and recommendations in February 2003.61
In its report, the Commission noted that it “found strong and broad support for
the original intent of Title IX, coupled with a great deal of debate over how the law
should be enforced,” but that “more needs to be done to create opportunities for
women and girls and retain opportunities for boys and men.”62 Ultimately, the final
report contained 23 recommendations for strengthening Title IX, including 15
recommendations that were adopted unanimously. When the Commission issued its
final report, however, two dissenting members of the panel refused to sign the
document and instead issued a minority report in which they withdrew their support
for two of the unanimous recommendations and raised concerns about several other
unanimous recommendations.63 The Secretary of Education indicated that he
intended to consider changes only with respect to the unanimous recommendations
of the Commission.
Among the unanimous recommendations of the Commission are suggestions
that ED: (1) reaffirm its commitment to eliminating discrimination; (2) clarify its
guidance and promote consistency in enforcement; (3) avoid making changes to Title
IX that undermine enforcement; (4) clarify that cutting teams in order to achieve
compliance is a disfavored practice; (5) enforce Title IX aggressively by
implementing sanctions against violators; (6) promote student interest in athletics at
58 1996 Clarification.
59 Id.
60 Dear Colleague Letter. For a brief review of significant Title IX court decisions, as well
as a discussion of a current legal challenge to Title IX by the National Wrestling Coaches
Association, see the “Title IX and the Courts” section below.
61 The Secretary of Education’s Commission on Opportunity in Athletics, “Open to All”:
Title IX at Thirty
, Feb. 28, 2003, [http://www.ed.gov/pubs/titleixat30/index.html].
62 Id. at 4, 21.
63 Donna de Varona and Julie Foudy, Minority Views on the Report of the Commission on
Opportunity in Athletics
, Feb. 2003, [http://www.nwlc.org/pdf/MinorityReportFeb26.pdf].

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elementary and secondary schools; (7) support amendments to the Equity in Athletics
Disclosure Act that would improve athletic reporting requirements; (8) disseminate
information on the criteria it uses to help schools determine whether activities that
they offer qualify as athletic opportunities; (9) encourage the National Collegiate
Athletic Association to review its scholarship and other guidelines; (10) advise
schools that walk-on opportunities are not limited for schools that comply with the
second or third prong of the three-part test; (11) examine the prospect of allowing
institutions to demonstrate compliance with the third prong of the three-part test by
comparing the ratio of male and female athletic participation with the demonstrated
interests and abilities shown by regional, state, or national youth or high school
participation rates or by interest levels indicated in student surveys; (12) abandon the
“safe harbor” designation for the proportionality test in favor of treating each of the
three tests equally; and (13) consider revising the second prong of the three-part test,
possibly by designating a point at which a school can no longer establish compliance
through this part.64
The Commission originally adopted an additional two recommendations
unanimously, but the two dissenting members of the panel withdrew their support for
these recommendations upon further opportunity for review of the final report. These
contested recommendations suggest that ED: (1) clarify the meaning of “substantial
proportionality” to allow for a reasonable variance in the ratio of men’s and women’s
athletic participation; and (2) explore additional ways of demonstrating equity
beyond the three-part test.65
Other recommendations that the Commission adopted by a majority, but not
unanimous, vote included suggestions that ED: (1) adopt any future changes to Title
IX through the normal federal rulemaking process; (2) encourage the reduction of
excessive expenditures in intercollegiate athletics, possibly by exploring an antitrust
exemption for college sports; (3) inform universities about the current requirements
governing private funding of certain sports; (4) reexamine its requirements governing
private funding of certain sports to allow such funding of sports that would otherwise
be cut; (5) allow schools to comply with the proportionality test by counting the
available slots on sports teams rather than actual participants; (6) for purposes of the
proportionality test, exclude from the participation count walk-on athletes, who are
non-scholarship players that tend to be male; (7) allow schools to conduct interest
surveys to demonstrate compliance with the three-part test; and (8) for purposes of
the proportionality test, exclude nontraditional students, who tend to be female, from
the count of enrolled students. In addition, the Commission was evenly divided on
a recommendation that would allow schools to meet the proportionality test if athletic
participation rates were 50 percent male and 50 percent female, with a variance of
two to three percentage points allowed.66
64 The Secretary of Education’s Commission on Opportunity in Athletics, “Open to All”:
Title IX at Thirty
, Feb. 28, 2003, 33-40, [http://www.ed.gov/pubs/titleixat30/index.html].
65 Donna de Varona and Julie Foudy, Minority Views on the Report of the Commission on
Opportunity in Athletics
, Feb. 2003, [http://www.nwlc.org/pdf/MinorityReportFeb26.pdf].
66 The Secretary of Education’s Commission on Opportunity in Athletics, “Open to All”:
Title IX at Thirty
, Feb. 28, 2003, 33-40, [http://www.ed.gov/pubs/titleixat30/index.html].

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ED’s Response to the Title IX Commission:
The 2003 Clarification

In response to the Commission’s report, ED indicated that it would study the
recommendations and consider whether or not to revise its Title IX athletics policy.67
Several months later, ED issued new guidance that essentially left the existing Title
IX policy unchanged. In its 2003 Clarification, which provided further guidance
regarding Title IX policy and the three-part test, ED reiterates that all three prongs
of the three-part test have been and can be used to demonstrate compliance with Title
IX, and the agency encourages schools to use the approach that best suits its needs.
In addition, the 2003 Clarification declares that complying with Title IX does not
require schools to cut teams and that eliminating teams is a disfavored practice. The
2003 Clarification also notes that ED expects both to provide technical assistance to
schools and to aggressively enforce Title IX. Finally, the new guidance indicates that
ED will continue to allow private sponsorship of athletic teams.68
IV. Title IX and the Courts
Over the years, the Supreme Court has heard several cases pertaining to Title
IX. Although none of these cases involved college sports, they did help to shape the
legal landscape surrounding Title IX athletics policy. For example, in 1979, the
Supreme Court held that Title IX includes a private right of action.69 This decision
strengthened Title IX enforcement because it means that an individual can sue in
court for violations under the statute rather than wait for ED to pursue a complaint
administratively. The Court further strengthened Title IX enforcement in 1992, when
it ruled that individuals could sue for money damages in a Title IX lawsuit.70 Finally,
in a decision that was later overturned by Congress, the Court ruled that Title IX did
not apply to an entire educational institution but rather applied only to the portion of
the institution that received federal funds.71
Although the Supreme Court has never decided a case that directly involves
Title IX athletics, all of the federal courts of appeals that have considered the
athletics Policy Interpretation, the three-part test, and the proportionality rule have
67 ED also recently proposed to amend the Title IX regulations in order to encourage single-
sex classes and schools. Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, 69 Fed. Reg. 11,276 (March 9, 2004).
See also, Single-Sex Classes and Schools: Guidelines on Title IX Requirements, 67 Fed.
Reg. 31,102 (May 8, 2002); Nondiscrimination on the Basis of Sex in Education Programs
or Activities Receiving Federal Financial Assistance, 67 Fed. Reg. 31,098 (May 8, 2002).
68 2003 Clarification.
69 Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).
70 Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).
71 Grove City College v. Bell, 465 U.S. 555 (1984). See also supra notes 19-20 and
accompanying text.

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upheld ED’s Title IX regulations and policy.72 In general, these courts have noted that
the regulations and guidance represent a reasonable agency interpretation of Title IX,
and they have ruled that the three-part test does not unfairly impose quotas because
institutions may select from two other methods besides proportionality in order to
comply with Title IX. Indeed, in 1993, the First Circuit reached this conclusion in
Cohen v. Brown University, a landmark Title IX case that was the first federal
appeals court decision regarding Title IX athletics.73 This section provides a brief
summary of the Cohen decision, as well as a description of the National Wrestling
Coaches Association lawsuit, which was recently dismissed.
Cohen v. Brown University
In the Cohen case, female athletes at Brown University sued under Title IX
when the school eliminated two women’s sports – gymnastics and volleyball – and
two male teams – golf and water polo – in a cost-cutting measure.74 Although the cuts
made far larger reductions in the women’s athletic budget than in the men’s, the cuts
did not affect the ratio of male to female athletes, which remained roughly 63 percent
male to 37 percent female, despite a student body that was approximately 52 percent
male and 48 percent female.75 In their lawsuit, the members of the women’s
gymnastics and volleyball teams “charged that Brown’s athletic arrangements
violated Title IX’s ban on gender-based discrimination.”76 When the district court
ordered the university to reinstate the two women’s team pending a full trial on the
merits, Brown appealed by challenging the validity of both the Title IX guidance in
general and the three-part test in particular. The First Circuit, however, affirmed the
district court’s decision in favor of the female athletes.77
In reaching its decision to uphold the validity of the three-part test, the First
Circuit emphasized that ED’s interpretation of Title IX warranted deference.
According to the court, “the degree of deference is particularly high in Title IX cases
because Congress explicitly delegated to the agency the task of prescribing standards
72 See, e.g., Chalenor v. Univ. of North Dakota, 291 F.3d 1042 (8th Cir. 2002); Pederson v.
Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000); Neal v. Bd. of Trustees, 198 F.3d 763
(9th Cir. 1999); Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265 (6th Cir. 1994);
Kelley v. Bd. of Trustees, 35 F.3d 265(7th Cir. 1994), cert. denied, 513 U.S. 1128; Williams
v. Sch. Dist. of Bethlehem, 998 F.2d 168 (3d Cir. 1993); Roberts v. Colorado State Bd. of
Agric., 998 F.2d 824 (10th Cir. 1993), cert. denied, 510 U.S. 1004; Cohen v. Brown Univ.,
991 F.2d 888 (1st Cir. 1993) (hereinafter Cohen I). In addition, in a second appeal on a
separate issue in the Cohen case, the First Circuit strongly reiterated its previous ruling
upholding Title IX. Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996), cert. denied, 520
U.S. 1186 (hereinafter Cohen II).
73 991 F.2d 888, 891 (1st Cir. 1993).
74 Id. at 892.
75 Id.
76 Id at 893.
77 Id. at 891.

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for athletic programs under Title IX.”78 Thus, the court adopted ED’s three-part test
as an acceptable standard by which to measure an institution’s compliance with Title
IX, as have all other appeals courts to subsequently consider the issue.79
Next, the court in Cohen turned to the question of whether the university had
met any one part of the three-part test. Because there was a large disparity between
the proportion of women at Brown who were students versus the proportion who
were athletes and because the university had not demonstrated a history of expanding
women’s sports, the court focused its inquiry on whether or not Brown had met part
three of the test by effectively accommodating student interest. The university argued
that when measuring interest under this standard, the relative athletic interests of
male and female students should be the proper point of comparison rather than the
relative enrollment of male and female students.80 In effect, Brown argued that its
female students were less interested in sports than its male students and that its Title
IX compliance should thus be measured by this standard.
Under ED’s construction of the accommodation test, however, institutions must
ensure participation opportunities where there is “sufficient interest and ability
among the members of the excluded sex to sustain a viable team and a reasonable
expectation of intercollegiate competition for that team.”81 Noting that this standard
does not require institutions to provide additional athletic opportunities every time
female students express interest, the court upheld the district court’s finding that the
existence and success of women’s gymnastics and volleyball at Brown demonstrated
that there was sufficient interest in and expectation of competition in those sports to
rule in favor of the female athletes with regard to the third prong of the three-part
test.82 In a subsequent appeal in the Cohen case, the court explicitly noted that
Brown’s view of the accommodation test, which seems to assume that women are
naturally less interested in sports than men, reflects invidious gender stereotypes and
could potentially freeze in place any existing disparity in athletic participation.83
78 Id. at 895.
79 See, e.g., Chalenor v. Univ. of North Dakota, 291 F.3d 1042 (8th Cir. 2002); Pederson v.
Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000); Neal v. Bd. of Trustees, 198 F.3d 763
(9th Cir. 1999); Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265 (6th Cir. 1994);
Kelley v. Bd. of Trustees, 35 F.3d 265(7th Cir. 1994), cert. denied, 513 U.S. 1128; Williams
v. Sch. Dist. of Bethlehem, 998 F.2d 168 (3d Cir. 1993); Roberts v. Colorado State Bd. of
Agric., 998 F.2d 824 (10th Cir. 1993), cert. denied, 510 U.S. 1004; Cohen v. Brown Univ.,
991 F.2d 888 (1st Cir. 1993) (Cohen I). In addition, in a second appeal on a separate issue
in the Cohen case, the First Circuit strongly reiterated its previous ruling upholding Title IX.
Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (Cohen II).
80 Cohen I, 991 F.2d at 899.
81 1979 Policy Interpretation, 44 Fed. Reg. 71,413, 71,418.
82 Cohen I, 991 F.2d at 904.
83 Cohen II, 101 F.3d 155, 176.

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Finally, the court rejected the university’s constitutional challenge, ruling that
Title IX does not violate the Equal Protection clause of the Fourteenth Amendment.84
In a subsequent appeal in the Cohen case, the court emphasized this point:
No aspect of the Title IX regime at issue in this case – inclusive of the statute,
the relevant regulation, and the pertinent agency documents – mandates gender-
based preferences or quotas, or specific timetables for implementing numerical
goals.... Race- and gender-conscious remedies are both appropriate and
constitutionally permissible under a federal anti-discrimination regime, although
such remedial measures are still subject to equal protection review.85
The National Wrestling Coaches Association Lawsuit
Meanwhile, disturbed by the decline in the number of men’s wrestling teams at
colleges and universities across the country, the National Wrestling Coaches
Association (NWCA), together with former wrestling teams at several institutions,
filed a lawsuit against ED in January 2002, arguing that the Title IX regulations were
adopted illegally and that Title IX unfairly discriminates against men.86 In the lawsuit,
the NWCA argued (1) that ED’s establishment of the Title IX regulations and policy
guidance was procedurally defective, (2) that ED exceeded its authority under the
Title IX statute when enacting those regulations and guidance, and (3) that ED’s
regulations and guidance discriminate against male athletes, thereby violating the
Title IX statute and the Equal Protection clause of the Fourteenth Amendment.87
In response to the lawsuit, ED, backed by the Bush Administration, moved to
dismiss the case on the grounds that (1) the plaintiffs lacked standing to bring the
case; (2) judicial review was unauthorized under the circumstances of this particular
case; and (3) the suit was barred by the statute of limitations.88 The National
Women’s Law Center (NWLC) filed an amicus brief in support of ED, arguing that
the suit was improper because there was no guarantee that institutions would reinstate
men’s sports teams even if the Title IX regulations and policy were changed. The
NWLC further observed that arguments similar to those made in the NWCA lawsuit
had been rejected by every federal appeals court to consider the issue of Title IX.89
Ultimately, the NWCA lawsuit was dismissed from federal court on the grounds that
84 Cohen I, 991 F.2d at 900-01.
85 Cohen II, 101 F.3d at 170, 172.
86 Nickel and Toosi, supra note 3.
87 Complaint for Declaratory and Injunctive Relief, Nat’l Wrestling Coaches Ass’n v. Dep’t
of Educ., Civil Action No. 1:02CV00072-EGS, available at [http://www.nwcaonline.com].
88 Defendant’s Motion to Dismiss, Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., Civil
Action No. 1:02CV00072-EGS, available at
[http://www.ed.gov/PressReleases/05-2002/wrestling.dismiss.mem.fin.pdf].
89 Brief of Amici Curiae, Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., Civil action No.
1:02CV00072-EGS, available at [http://www.nwlc.org/pdf/amicusbrief.final.pdf].

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the plaintiffs lacked the proper standing to bring the case,90 and the dismissal was
recently affirmed by an appeals court.91
Given the results in the NWCA case and in other Title IX cases brought before
the federal courts of appeals, it seems likely that the courts will continue to defer to
ED with regard to Title IX athletics policy in the near future. As noted above, ED has
indicated that it intends to continue to use the three-part test to enforce Title IX.
Although Congress could, if it disapproves of ED’s Title IX athletics policy, respond
with legislation to override the current regulations and guidance, it appears that
congressional support for Title IX remains high. For example, before ED announced
that it was not altering existing Title IX policy, at least four members of Congress
introduced legislation anticipating changes in Title IX. Under one Senate resolution
(S.Res. 40), the Senate would reaffirm its commitment to Title IX and equal
educational opportunity for women and girls. Similar House and Senate resolutions
(H.Res. 137, S.Res. 153) would express the sense of the House that changes in Title
IX policy contradict the spirit of athletic equity and gender parity and should not be
implemented. Finally, S. 282 would require high schools to report statistical data on
athletic participation rates. Given this evidence of congressional support for Title IX
and absent action by the courts or ED, it appears likely that the Title IX athletics
policy will remain unchanged for the near future.
90 Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 263 F. Supp. 2d 82, at 129-30 (D.D.C.
June 11, 2003).
91 Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., Civ. No. 03-5169, 2004 U.S. App.
LEXIS 9426 (D.C. Cir. May 14, 2004).