Question
Under Title IX, is Franklin D. Roosevelt (F.D.R.) High school in non-compliance when they eliminated only the men’s volleyball team and not the women’s volleyball team?
Brief Answer
No. Title IX does not ensure each sport will have both a male and female program. The purpose of Title IX is to correct the historic discrimination against various minority groups and it seeks to remedy inequity in the opportunity to participate in athletics as a whole. Based upon the given facts, our client’s situation does not meet the requirements established to determine the school is in violation of Title IX.
Statement of facts
Our client’s son, Jacob, was a member of F.D.R. High’s men’s volleyball team. F.D.R. utilizes federal resources to help fund their athletics programs and the school has traditionally offered disproportionately more opportunities for male participation in sports than for women. Since the creation of Title IX thirty years ago, F.D.R. has opened up their athletics program to women and has attempted to keep the ratio of female athletes as close to males as possible. F.D.R. has told parents they plan to eliminate men’s volleyball, men’s fencing, and women’s fencing due to both budgetary concerns and lack of spectators.
Discussion
Congress created Title IX to prevent discrimination against participation based on gender in schools that receive funding from the Federal Government. It 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.” 20 U.S.C.S. § 1681(a) (2010). After the enactment of Title IX, Congress instructed the Department of Health, Education, and Welfare (HEW) to prepare and publish regulations implementing Title IX. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 611 (6th Cir. 2002). HEW published these rules June 4, 1975. 40 Fed.Reg. 24,128 (June 4, 1975) (codified at 45 C.F.R. § 86.1) HEW was later split into two departments with the Office of Civil Rights (OCR) under the Department of Education overseeing enforcement of Title IX and the rules regulating athletics were recodified as 34 C.F.R. § 106.41. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 612 n.3 (6th Cir. 2002). These rules state that “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, and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. § 106.41(a) (2010). The rules also provide that “A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c) (2010). In order to clarify the meaning of “equal opportunity,” HEW released a policy interpretation in 1979. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 612 (6th Cir. 2002). The Office of Civil Rights reaffirmed this interpretation in 1996 in a clarification of the 1979 Policy. Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, Department of Education ED.gov, http://www2.ed.gov/about/offices/list/ocr/docs/clarific.html (last visited Oct. 7, 2010).
The policy establishes a three-prong test to assess if an institution is providing non-discriminatory participation opportunities for both sexes. Id. The OCR will examine if “(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 interests 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 history and continuing practice of program expansion, as described 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.” 44 Fed. Reg. 71413, 71418 (1979).
In, Miami Univ. Wrestling Club v. Miami Univ., the court ruled that the 1979 policy interpretation has “controlling weight” in determining compliance with Title IX. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 615 (6th Cir. 2002). F.D.R. only needs to satisfy one of the three criteria listed in the test to comply with Title IX. Not only does F.D.R. keep athletic participation opportunities for male and females proportionate to their respective enrollments, they also have a continuing history of program expansion towards the gender that was and still is under-represented. Compliance with Title IX does not mean every sport must have equal programs for men and women; schools may even eliminate the programs of overrepresented genders to comply with the statute. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 615 (6th Cir. 2002); Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996); Neal v. Bd. of Tr. Of Cal. State Univ., 198 F.3d 763,770 (9th Cir. 1999).
Conclusion
Elimination of the athletic program of a specific gender is not a violation of Title IX and in fact is sometimes encouraged if a school is not in compliance with the statute. F.D.R. traditionally offered more athletic opportunities towards men and since the passage of Title IX they have expanded their athletics program to include more women. While men are still overrepresented in athletics at F.D.R., they have kept the ratio of women to men in relation to their enrollment as close as possible. Considering the statute, federal regulation, case law, and the given facts of our client’s case it is highly unlikely the court will rule F.D.R. violated Title IX by closing solely the men’s volleyball team and not the women’s team.
Rev 1
The issue is if Franklin D. Roosevelt (F.D.R.) High School is in non-compliance of Title IX when they eliminated only the men’s volleyball team and not the women’s volleyball team. The brief answer is no, Title IX does not ensure each sport will have both a male and female program. The purpose of Title IX is to make athletic participation equal by increasing opportunities to a historically underrepresented group and sometimes decreasing the opportunities for an overrepresented group. From the given facts, our client’s situation does not meet the requirements established to determine the school is in violation of Title IX.
Our client’s son, Jacob, was a member of F.D.R. High’s men’s volleyball team. F.D.R. utilizes federal resources to help fund their athletics programs. The school has traditionally offered disproportionately more opportunities for male participation in sports than for women. After the creation of Title IX thirty years ago, F.D.R. has opened up their athletics program to women. Although women are still underrepresented, F.D.R. has attempted to keep the ratio of female athletes as close to males as possible. F.D.R. has told parents they plan to eliminate men’s volleyball, men’s fencing, and women’s fencing because of both budgetary concerns and lack of spectators. Assuming the elimination of these programs causes men to become the underrepresented gender, F.D.R. will still pass the three prong test established to determine compliance with Title IX.
Congress created Title IX to prevent discrimination against participation based on gender in schools that receive funding from the Federal Government. 20 U.S.C.S. § 1681(a) (2010). The rules regulating athletics recodified in 34 C.F.R. § 106.41 provide no person shall, on the basis of sex, be excluded from participation in or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient. 34 C.F.R. § 106.41(a) (2010). The rules further state “[A] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c) (2010). To clarify the meaning of “equal opportunity,” The Department of Health, Education, and Welfare (HEW) released a policy interpretation in 1979 that the Office of Civil Rights (OCR) reaffirmed and further clarified in 1996. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 612 (6th Cir. 2002); Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, Department of Education ED.gov, http://www2.ed.gov/about/offices/list/ocr/docs/clarific.html (last visited Oct. 7, 2010) (quoting 44 Fed. Reg. 71413, 71418 (1979)).
The policy establishes a three-prong test to assess if an institution is providing non-discriminatory participation opportunities for both sexes. Id. The OCR will examine “(1) [W]hether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) [W]here 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 interests and abilities of the members of that sex; or (3) [W]here the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described 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.” 44 Fed. Reg. 71413, 71418 (1979).
The 1979 policy interpretation has “controlling weight” in determining compliance with Title IX. Miami Univ. Wrestling Club, 302 F.3d at 615 (6th Cir. 2002) (quoting Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)). F.D.R. only needs to satisfy one of the three criteria listed in the test to comply with Title IX and F.D.R. can reasonably argue they have met all three. Id. Not only does F.D.R. keep athletic participation opportunities for male and females proportionate to their respective enrollments, they also have a continuing history of program expansion towards the gender that was and still is under-represented. If there have been no complaints by women, F.D.R. can argue they have effectively and fully accommodated the interests and abilities of the members of the underrepresented sex. The history of overrepresentation of men in F.D.R.’s athletics programs makes it difficult to establish a Title IX claim of discrimination against men.
Assuming, arguendo, the proposed program cuts push the representation of women in athletics substantially over men, F.D.R. must fail to satisfy the two other prongs to make a Title IX claim. In addition to being the under-represented gender, F.D.R. must fail to prove the program fully and effectively accommodates the interests of men, men must have been under-represented in the past, and a historical lack of program expansion towards men must exist. A claim can be made that cutting men’s fencing and volleyball does not fully and effectively accommodate the interests and ability of men at F.D.R.. However, F.D.R. will satisfy the second prong of the policy interpretation because F.D.R. has traditionally offered more opportunity in athletics to men. 44 Fed. Reg. 71413, 71418 (1979).
Compliance with Title IX does not ensure every sport must have equal programs for men and women. Horner v. Kentucky High Sch. Ath. Ass'n, 206 F.3d 685, 697 (6th Cir. 2000). Schools may even eliminate the programs of overrepresented genders to comply with the statute. Miami Univ. Wrestling Club, 302 F.3d at 615 (6th Cir. 2002); Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996); Neal v. Bd. of Tr. Of Cal. State Univ., 198 F.3d 763,770 (9th Cir. 1999). A Title IX claim will not be successful on the ground that F.D.R. eliminated only the men’s volleyball team.
Elimination of the athletic program of a specific gender is not a violation of Title IX and in fact is sometimes encouraged if a school is in non-compliance with the statute. F.D.R. traditionally offered more athletic opportunities towards men and since the passage of Title IX they have expanded their athletics program to include more women. While men are still overrepresented in athletics at F.D.R., they have kept the ratio of women to men in relation to their enrollment as close as possible. F.D.R. must fail the three prong test in relation to men for our client to succeed. However, it is only possible for F.D.R. to fail two of the prongs at most because of F.D.R.’s history in offering a disproportionate amount of athletic opportunities to men.
Final Draft
Our client’s son, Jacob, was a member of Franklin D. Roosevelt High School (FDR) men’s volleyball team and wants to know if FDR is in non-compliance of Title IX when they eliminated only the men’s volleyball team and not the women’s volleyball team. Unfortunately, FDR will not be in violation of Title IX for their actions because the purpose of Title IX is to make athletic participation equal by increasing opportunities to a historically underrepresented group and not to ensure each sport will have both a male and female program.
Congress created Title IX to prevent discrimination against participation based on gender in schools that receive funding from the Federal Government. Patsy Takemoto Mink Equal Opportunity in Education Act 20 U.S.C.S. § 1681(a) (LexisNexis 2010). The rules regulating athletics recodified in 34 C.F.R. § 106.41 provide no person shall, on the basis of sex, be excluded from participation in or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient. Discrimination on the Basis of Sex in Education Programs or Activities Prohibited; Athletics, 34 C.F.R. § 106.41(a) (LexisNexis 2010). The rules further state “[A] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” § 106.41(c) (LexisNexis 2010). To clarify the meaning of “equal opportunity” and determine compliance with the statute, the Office of Civil Rights (OCR) utilizes a three pronged test. Letter from Norma V. Cantu, Assistant Secretary for Civil Rights, U.S. Dep't of Educ., Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996), http://www2.ed.gov/about/offices/list/ocr/docs/clarific.html. The OCR will examine “(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) [w]here 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 interests and abilities of the members of that sex; or (3) [w]here the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described 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.” Title IX of the Education Amendments of 1972; A Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 (Dec. 11, 1979) (to be codified at 45 C.F.R. pt. 88). (“1979 Policy Interpretation”).
FDR utilizes federal resources to help fund their athletics programs and is subject to compliance with Title IX. 20 U.S.C.S. § 1681(a) (LexisNexis). The school has traditionally offered disproportionately more opportunities for male participation in sports than for women. Since the creation of Title IX thirty years ago, FDR has opened up their athletics program to women. Although women are still underrepresented, FDR has attempted to keep the ratio of female athletes as close to males as possible. FDR has told parents they plan to eliminate men’s volleyball, men’s fencing, and women’s fencing because of both budgetary concerns and lack of spectators. Assuming the elimination of these programs causes men to become the underrepresented gender, FDR will still pass the three prong test established to determine compliance with Title IX.
The 1979 policy interpretation has “controlling weight” in determining compliance with Title IX. Miami Univ. Wrestling Club, 302 F.3d 608, 615 (6th Cir. 2002) (quoting Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)). FDR only needs to satisfy one of the three criteria listed in the test to comply with Title IX and FDR can reasonably argue they have met all three. Miami, 302 F.3d at 608. FDR meets the first requirement by keeping athletic participation opportunities for male and females proportionate to their respective enrollments. Horner v. Kentucky High Sch. Ath. Ass'n, 43 F.3d 265, 274 (6th Cir. 1994), aff’d, 206 F.3d 685 (6th Cir. 2000). They also pass the second requirement by having a continuing history of program expansion towards the gender that was and still is under-represented. Id. at 274. If there have been no complaints by women, FDR can argue they have effectively and fully accommodated the interests and abilities of the members of the underrepresented sex to fulfill the third requirement. Horner, 43 F.3d at 275 (quoting Cohen v. Brown Univ., 991 F.2d 888, 898 (1st Cir. 1993), aff’d, 101 F.3d 155 (1st Cir. 1996)). While FDR's history of program of expansion towards women makes it clear FDR complies with Title IX, the historical over-representation of men in FDR's athletics makes it difficult to establish a Title IX claim that FDR has discriminated against men.
Assuming, arguendo, the proposed program cuts push the representation of women in athletics substantially over men, FDR must fail to satisfy the two other prongs to make a Title IX claim. Horner, 43 F.3d at 275. FDR must fail to prove the program fully and effectively accommodates the interests of men, men must have been under-represented in the past, and a historical lack of program expansion towards men must exist. Id. at 274. “[A]n institution is not required to field a team in response to, e.g., the pleas of "one talented softball player," so a sufficient number of individuals to form a team must complain for FDR to fail to prove they have fully and effectively accommodate the interests and ability of men at FDR. Id. at 275. However, FDR will satisfy the second prong of the policy interpretation because FDR has traditionally offered more opportunity in athletics to men. The Policy Interpretation, 44 Fed. Reg. 71413, 71418 (1979).
A Title IX claim will not be successful on the ground that FDR eliminated only the men’s volleyball team because compliance with Title IX does not ensure every sport must have equal programs for men and women. Horner v. Kentucky High Sch. Ath. Ass'n, 206 F.3d 685, 697 (6th Cir. 2000). Schools may even eliminate the programs of overrepresented genders to comply with the statute. Miami, 302 F.3d at 615 (6th Cir. 2002); Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996); Neal v. Bd. of Tr. Of Cal. State Univ., 198 F.3d 763,770 (9th Cir. 1999).
Elimination of the athletic program of a specific gender is not a violation of Title IX and in fact is sometimes encouraged if a school is in non-compliance with the statute. FDR traditionally offered more athletic opportunities towards men and since the passage of Title IX they have expanded their athletics program to include more women. While men are still overrepresented in athletics at FDR, they have kept the ratio of women to men in relation to their enrollment as close as possible. FDR must fail the three prong test in relation to men for our client to succeed. Assuming conditions most favorable to our client, it is only possible for FDR to fail two of the prongs at most because of FDR’s history in offering a disproportionate amount of athletic opportunities to men.
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