The Volokh Conspiracy
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As I mentioned at the outset, one of my motivations for writing Gender Identity, Sports, and Affirmative Action: What's Title IX Got To Do With It? was trying to figure out when it became clear that schools receiving federal funds could not simply have one sports team for each sport for all members of their community. To answer that question, we need to examine some regulations and interpretations.
The story of the regulations is well known. After Senator John Tower unsuccessfully proposed an amendment to Title IX to exempt college basketball and football from its scope, Congress passed a statute requiring the Department of Health, Education, and Welfare to propose regulations for athletics. The regulations were promulgated in 1975. They have remained unchanged since then, and the most important ones currently appear at 34 C.F.R. § 106.41.
Did these regulations require separate sports teams? Not at first glance. Section 106.41(a) states that a recipient of federal funds shall not provide athletics separately on the basis of sex. Section 106.41(b) then immediately steps this assertion back and says recipients may provide separate sports teams if either (a) competitive skill is a criterion for selection or (b) the sport is a contact sport. (Query: Can a school receiving federal funds maintain two separate intramural tennis ladders, one for each sex?)
It gets complicated. There is a rule (athletics shall not be provided separately), an exception (separate teams are permissible under two circumstances), an exception to the exception (where there is only one team that purports to include only one sex, and the excluded sex has previously had limited opportunities, the team must be open), and then an exception to the exception to the exception (but not if the sport is a "contact sport"). Got that?
Section 106.41(c) is labelled "equal opportunity." It requires "equal athletic opportunity for members of both sexes" and provides a list of ten factors that the government will assess to determine if "equal opportunities are available." Does it apply only if a school sponsors separate sex-segregated teams? Not very clear, although some of the factors seem difficult to apply to open teams. Subsection c then has a paragraph following the ten factors that states that (1) unequal aggregate expenditures for members of each sex will not constitute noncompliance and (2) unequal expenditures for male and female teams, if a recipient operates or sponsors separate teams, also will not constitute noncompliance. (In either case, unequal expenditures can be evidence.) The first part must apply to open teams because it would be redundant of the second part if it did not. The second part only applies if a recipient operates separate teams.
In 1979, HEW issued a Policy Interpretation, which is divided into three parts: (1) Athletic Financial Assistance, (2) "Equivalence in Other Athletic Benefits and Opportunities," and (3) "Effective Accommodation of Student Interests and Abilities." The first part interprets a different part of the regulations to require a school to provide scholarship moneys in proportion to the percentage of each sex participating in varsity sports. The last part has received the most attention because it identifies how to assess the "effective accommodation" of each sex's interests and abilities (under 34 CFR § 106.41(c)(1)) as a near-dispositive factor in determining whether the fund recipient was providing "equal athletic opportunities" (the phrase from the regulation) for each sex. The now famous (or infamous) "three-part test" identified three ways schools could comply with that requirement: they could provide (1) "intercollegiate level participation opportunities" to men and women in proportion to the undergraduate population at the institution; (2) continuing expansion of athletics opportunities for the underrepresented sex; or (3) athletic opportunities completely satisfying the interests of the underrepresented sex.
But the Policy Interpretation does not specifically preclude open teams; to the contrary, it says that the "regulation does not require institutions to integrate their teams," which certainly suggests that "integration" is permissible. On the other hand, in determining whether a recipient of federal funds "effectively accommodated" the interests and abilities of a sex in a non-contact sport, the Policy Interpretation said a recipient must create a single-sex team in a sport when there is only one team, and (1) there is reasonable interest and ability among the excluded sex, and (2) "[m]embers of the excluded sex do not possess sufficient skill to be selected for a single integrated team or to compete actively on such a team if selected." (A similar rule for contact sports was set forth in an earlier letter by HEW. In the Policy Interpretation, a separate team must be created if there is sufficient interest and ability.)
That is, those in the excluded sex must have "reasonable ability" yet lack "sufficient skill." So a team selecting among both males and females by "skill" does not "effectively accommodate" the "skills" of the less-skilled group. Assuming the hypothetical group is female, it is hard to understand how the creation of a female team is not a "preference" that is "required" by an "imbalance" in the number of females skilled enough to make an open team—something the statute specifically forbids in 20 U.S.C. § 1681(b).
In 1996, HEW's successor (the Department of Education) issued a Clarification, which focuses on the three-part test for effective accommodation. The key provision is how to determine whether "participation opportunities" are substantially proportionate to undergraduate enrollment under the first part of the test. The provision defines "participation opportunities" as "participants"—those who made the team. Thus, the "Clarification" of the "Interpretation" tells us that the proportion of participants of a sex must be similar to the proportion of undergraduates of that sex to satisfy that first part. The "Dear Colleague" letter accompanying the Clarification noted, "Title IX's athletic provisions are unique in permitting institutions … to establish separate athletic programs on the basis of sex, thus allowing institutions to determine the number of athletic opportunities that are available to students of each sex." The letter compared Title IX to Title VI, which "forbids institutions from providing separate athletic programs on the basis of race or national origin."
The Clarification does not explicitly address what should happen if a recipient chooses not to control the number of "participation opportunities" by operating separate teams. Arguably, the equating of "participation opportunities" with "participants" does that work for it, at least if it applies to open teams as well as sex-segregated ones. If participants are only those who make the team, and the proportion of participants for each sex must approximate the proportion of each sex in the undergraduate population (or else define which of the two is entitled to certain benefits for being "underrepresented"), then a recipient would still have to ensure those proportions lined up by having a specified number of slots for each sex on an open team.
Note how the language evolved. The statute says that no person shall be "subjected to discrimination." Section 106.41(c) of the regulations is labelled "equal opportunity," and calls for "equal athletic opportunity." "Effective accommodation" of interests and abilities is identified as a consideration for determining "equal athletic opportunity." The Policy Interpretation says that "effective accommodation" can be determined by "participation opportunities." And the Clarification says that "participation opportunities" are just, well, "participants."
But these administrative interpretations never state that separate teams are required, or that open teams chosen by skill are prohibited. (Similarly, another regulation permits separate toilets, showers, and locker rooms, but does not require them.) To the contrary, by repeatedly asserting only that separate teams are "permitted," and that integration is not required, the sports provisions imply that open teams chosen by skill are permitted.