Title IX, Sports, and Language

Is it equal opportunity or affirmative action?

The confusion surrounding Title IX is exacerbated by the use of phrases that have disparate meanings inside and outside Title IX's application to sports. We saw a bit of this yesterday, in the regulations and interpretations. The regulations require "equal athletic opportunity." Normally, we understand the phrase "equal opportunity" to be synonymous with nondiscrimination, a rule precluding the consideration of a prohibited criteria. Think "Equal Employment Opportunity," for example. But in Title IX and sports, "equal opportunity" has come to mean something quite different.

The contrast between the two kinds of equal opportunity can be seen in cases involving women seeking to participate on a "male" football or wrestling team, where the school has no female teams for those sports. Because Title IX regulations specifically permit schools receiving federal funds to have teams for only one sex in "contact sports," the plaintiffs in these cases generally sue under the Equal Protection Clause if the school is state-operated. And they usually win. Further, the courts usually emphasize that the plaintiff is not seeking legal entitlement to a position on the team, but only an "opportunity" to try out. In one case, a district court in Kansas, after rejecting the plaintiff's Title IX claim, and then ultimately granting a preliminary injunction on her Equal Protection claim, noted that Title IX defined "equal opportunity" in a way substantively different from the definition of "equal protection." It was right. Just read Judge Lagoa's concurrence on Title IX and sports in the Eleventh Circuit's recent en banc opinion in Adams v. School Bd. of St. John's County, where she repeatedly asserts that allowing trans females to compete on female sports teams would deprive females of "equal opportunity" under Title IX.

Indeed, nominally-male football and wrestling teams at state schools are, in fact, open teams because females have a constitutional right to try out for them (if there is no female team in the sport). The same holds true for schools (private or public) receiving federal funds if they have male-only golf or tennis teams. Is every slot on those teams an "opportunity" for women? Not In the language of Title IX regulations as applied to sports; a female has an "opportunity" only if she makes the team.

The cases have done nothing to clear things up. Quite the contrary.

In one of the earliest, and most well-known Title IX athletic cases, Cohen v. Brown University, the First Circuit, in holding that Brown was in violation of Title IX because it had downgraded women's (as well as men's) varsity teams, was insistent that Title IX only required "gender-blind equality of opportunity to its student body," and that the same analysis would apply if Brown had open teams instead of sex-segregated ones. It also forcefully insisted that Title IX does not involve "affirmative action" or mandate a "preference." Rather, it was just an anti-discrimination statute, just like its model, Title VI. Just imagine a court determining whether a school was in compliance with Title VI by counting out how many members of different races were on varsity teams, and determining whether the proportion for each race was similar to that race's proportion in the undergraduate population.

The Seventh Circuit, in contrast, in Kelley v. Bd. of Trustees, assessed Title IX's requirement to consider gender-distributed opportunities under the Fifth Amendment, concluding it passed muster because "Congress has broad powers under the Due Process Clause of the Fifth Amendment to remedy past discrimination," and meets intermediate scrutiny under the Fifth Amendment. (Of course, that argument assumes that Congress itself, rather than HEW, created the rules.) Since sex-neutral, non-discrimination measures by government agencies are not subjected to heightened scrutiny, the court, at least implicitly, held Title IX was not such a statute, but rather one that provided a preference. On the other hand, the court confusingly also stated Title IX's purpose was only "to prohibit educational institutions from discriminating on the basis of sex."

The Sixth Circuit, in Miami University Wrestling Club v. Miami University, upheld the elimination of various men's teams on the ground that Title IX "focuses on opportunities for the underrepresented gender[] and does not bestow rights on the historically overrepresented gender."

The difficulty in language is understandable. Title IX is generally a non-discrimination statute. Schools that may have discriminated against women in admissions or facilities in the past have no obligation to do anything other than treat people equally without regard to sex. They can have "soprano only" or "tenor only" choruses. Nothing in the language of the statute suggests any similarity to laws that explicitly provide benefits for members of groups defined by race, national origin, or sex (e.g., contracting set-aside laws). In athletics, though, Title IX has been interpreted to not merely permit, but mandate a system providing females with "opportunities" different from, and likely greater than, they would have if athletic teams could have members of any sex on them and if choices were made solely by skill.

[* * *]

Tomorrow, we will go back to the issue of trans females playing on female sports teams, discussing a case recently resolved in the Second Circuit in which the plaintiffs alleged that permitting trans females to do so violates Title IX. We will also discuss some other statutes and whether the "equal athletic opportunity" concept from Title IX sports might be applied.

I want to clarify two things ahead of that, though. First, I hope my legal analysis in these blog posts does not leave readers with the impression that I favor only open sports or that I am opposed to female-only sports teams. Neither is true. I am a big fan of female-only sports; as I described on Tuesday, I think such sports are permissible under Title IX and the Equal Protection Clause if heightened scrutiny is applicable because, after puberty, females would have difficulty competing successfully on open teams. I might even support laws that required schools to have separate teams for females. I just have my doubts about whether Title IX is really that law.

Which brings me to my second point. Some may argue that since Congress has not done anything about the interpretations that essentially have turned Title IX into a law requiring female teams, we should just accept that state of affairs as if Congress had enacted it. After all, the original regulations were specifically promulgated at Congress's request, it held hearings on them, they were approved by the President, etc. The Civil Rights Act of 1987 was enacted to restore the scope of Title IX (among other statutes), including its reach to sports, by expanding the "programs" that Title IX reached at a school receiving federal funds.

This is not, by any means, a frivolous argument, and I am not going to delve into the nuances of Chevron or Auer (or is it Kiser?) deference. But I am not convinced. For one thing, I cannot get around the belief that separate female sports teams are a "preference" that the administrative interpretations now "require" because of an "imbalance" that would result from open teams, and that the statute itself (20 U.S.C. § 1681(b)) forbids that. But even if I were convinced, I would still want our executive agencies and our courts to be more forthright about what is going on. The first subsection of the regulation (34 CFR 106.41(a)), after all, says that separate teams are prohibited. The interpretations and clarifications always suggest that open teams are permissible, even when the specifics of the regulations seem to suggest the contrary. Courts, or at least some of them, suggest that Title IX's application to sports is no different from its application in other areas. But, of course, it is.