Athletic programs are considered educational programs and activities. Title IX gives women athletes the right to equal opportunity in sports in educational institutions that receive federal funds, from elementary schools to colleges and universities. While there are few private elementary, middle school or high schools that receive federal funds, almost all colleges and universities, private and public, receive such funding.

The penalty for non-compliance with Title IX is withdrawal of federal funds. Despite the fact that most estimates are that 80 to 90 percent of all educational institutions are not in compliance with Title IX as it applies to athletics, such withdrawal of federal moneys has never been initiated. When institutions are determined to be out of compliance with the law, the United States Department of Education Office for Civil Rights (OCR) finds them “in compliance conditioned on remedying identified problems.”

Title IX requires that every educational institution have a Title IX Compliance Coordinator. The OCR is the primary agency charged with its enforcement. However, to date, this agency’s enforcement efforts have been inadequate. Any person, regardless of whether they have been harmed by failure of the educational institution to comply with the law, may file a Title IX complaint with the OCR which is obligated to investigate such a complaint within a specified time period. The person filing the complaint may request that his or her identity be kept confidential. Individuals who have been harmed by failure of the institution to comply have an individual right to sue under the law and almost 95% of such lawsuits having to do with athletic program violations have been successful.

There are three parts to Title IX as it applies to athletics programs: (1) effective accommodation of student interests and abilities (participation), (2) athletic financial assistance (scholarships), and (3) other program components (the “laundry list” of benefits to and treatment of athletes). The “laundry list” includes equipment and supplies, scheduling of games and practice times, travel and daily per diem allowances, access to tutoring, coaching, locker rooms, practice and competitive facilities, medical and training facilities and services, publicity, recruitment of student athletes and support services.

Title IX compliance is assessed via a total program comparison. In other words, the entire men’s and women’s programs are to be compared, not just one men’s team to the women’s team in the same sport. This broad comparative provision was intended to emphasize that Title IX does not require the creation of mirror image programs. Males and females can participate in different sports according to their respective interests and abilities. Thus, broad variations in the type and number of sports opportunities offered to each gender are permitted.

Title IX does not require equal expenditure of funds on male and female athletes. The only dollar for dollar expenditure requirement is in the athletic financial assistance area, where schools are required to spend dollars proportional to participation rates. Thus, if $200,000 is awarded in athletic scholarships and the participation ratio of male to female athletes is 50/50, $100,000 must be awarded to female athletes and $100,000 must be awarded to male athletes. In other areas, the equality standard is one of equal opportunity.

With regard to Title IX’s participation requirements, a school can meet the standard via three independent tests. The first test is a mathematical safe harbor. If the school offers athletic participation opportunities (number of individual athlete participation slots, not numbers of teams) proportional to the numbers of males and females in the general student body, the school meets the participation standard. If the school does not meet this mathematical test, it may be deemed in compliance if it can (1) demonstrate consistent expansion of opportunities for the underrepresented gender over time or (2) show that the athletic program fully met the interests and abilities of the underrepresented gender. The courts have ruled that “boys are more interested in sports than girls” is not an acceptable defense to lack of equitable participation opportunities.

Under Title IX there are no sport exclusions or exceptions, so football is included under the law. Individual participation opportunities (numbers of athletes participating rather than number of sports) in all men’s sports and all women’s sports are counted in determining whether a school meets the Title IX participation standard. The basic philosophical underpinning of Title IX is that there cannot be an economic justification for discrimination. The school cannot maintain that there are revenue production or other considerations that mandate that male athletes receive better treatment or participation opportunities than female athletes. A good analogy would be that a school cannot say that it cannot afford to provide wheelchair access for students with physical disabilities as required under the Americans With Disabilities Act because the football team needs the money in order to maintain its current level of revenue production. Similarly, a school cannot say that it cannot afford to provide participation opportunities for an underrepresented gender.

It is also important to recognize that Title IX does not require the reduction of opportunities for male athletes in order to increase opportunities for female athletes. Schools that choose this manner of compliance are not meeting the spirit of discrimination laws, which is to bring members of the disadvantaged group up to the participation or benefit levels of the advantaged group rather than to bring male athletes down to the current level of poor treatment or no opportunity to play experienced by female athletes. If athletic budgets do not increase and schools desire to maintain current levels of participation for male athletes and increase participation levels of female athletes, the solution is to give all teams a smaller portion of the budget pie.

Typically, athletic departments have refused to “tighten the belt” of popular men’s sports like football, and have cut men’s non-revenue producing sports instead and blamed it on Title IX. Three points should be made in this regard: (1) it is dysfunctional to “pit the victims against the victims” — men’s non-revenue sports against women’s sports, both of which have been traditionally underfunded, (2) over 80% of all college football programs and almost all high school football programs lose money, and (3) nothing negative would happen to men’s revenue-producing sports if their budgets were decreased across the board with all schools and all teams lowering expenditures simultaneously so the playing field is kept level. In fact, football expenditures have continued to increase at rates higher than inflation. For example, according to National Collegiate Athletic Association gender equity studies comparing 1992 and 1997 budgets, average per school dollar increases to Division I-A men’s sports operating budgets over the last five years were three (3) times the increases to women’s sports operating budgets (men=$1.37 million/women=$400,000). Sixty-three percent or $872,000 of the $1.37 million amount went to football. Further, the $872,000 increase in football budgets exceeded the total average operating budget amount spent on all of women’s sports ($662,000/yr) by more than $200,000.

While there are considerable misconceptions and inaccuracies surrounding the discussion of Title IX as it applies to athletic programs, it is important to understand the basic premise of the law: Title IX is an important federal civil rights act that guarantees that our daughters and sons are treated in a like manner with regard to all educational programs and activities, including sports.

Do not reprint without permission.
Submitted for publication in the Encyclopedia of Women’s Sports, August, 1998.

June 23, 1972
Title IX of the Education Amendments of 1972 is enacted by Congress and is signed into law by President Richard Nixon, prohibiting sex discrimination in any educational program or activity receiving any type of federal financial aid.¹ Rep. Patsy Mink is recognized as the major author and sponsor of the bill, and Rep. Edith Green and Sen. Birch Bayh also made significant contributions.

May 20, 1974
Sen. John Tower proposes the “Tower Amendment,” which would exempt revenue-producing sports from determinations of Title IX compliance. The amendment is rejected.²

July 1974
In the spirit of Sen. Tower’s failed amendment, Sen. Jacob Javits submits an amendment directing the U.S. Department of Health, Education, and Welfare (HEW) to issue regulations that provide for “reasonable provisions considering the nature of particular sports.”² It argues that event and uniform expenditures on sports with larger crowds or more expensive equipment do not have to be matched in sports without similar needs.

May 27, 1975
President Gerald Ford signs the final version of Title IX—which includes Sen. Javits’ proposed athletics regulations from July 20, 1974—and submits it for congressional review.³

July 8, 1975
Rep. James O’Hara introduces “a bill to amend Title IX of the Education Amendments of 1972” (H.R. 8394), which proposes that sports revenues first be used to offset the cost of that sport, and only then to support other sports. The proposed change would effectively alter Title IX’s coverage in athletics. This bill dies in committee before reaching the House floor.⁴

July 21, 1975
Congress reviews and approves Title IX regulations and rejects the following resolutions and bills that had been advanced in an attempt to disprove the athletics regulations²:

• June 5, 1975: Sen. Jesse Helms condemns Title IX in its entirety (S.Con.Res.46).
• June 17, 1975: Rep. James G. Martin disapproves of Title IX in its entirety (H.Con.Res.310) and specifically as it pertains to intercollegiate athletics (H.Con.Res.311).
• July 16, 1975: Sens. Paul Laxalt, Carl T. Curtis and Paul J. Fannin disapprove of the application of Title IX to intercollegiate athletics (S.Con.Res.52).
• July 21, 1975: Sen. Helms introduces “a bill to amend Title IX of the Education Amendments of 1972, and to preserve academic freedom” (S. 2146) in an attempt to prohibit the application of Title IX regulations to athletics in situations in which participation in those athletic activities are not a required part of the institution’s curriculum. Sen. Helms would reintroduce S. 2146 as S. 535 in 1977, though neither would be passed.

Title IX federal regulations are issued in the area of athletics. High schools and colleges are given three years, and elementary schools one year, to comply.

February 17, 1976
NCAA files a lawsuit challenging the legality of Title IX. The suit would be dismissed in 1978.⁵

July 15, 1977
Sens. Tower, Dewey F. Bartlett, and Roman Hruska introduce S. 2106, proposing to exclude revenue-producing sports from Title IX coverage. The bill dies in committee before reaching the Senate floor.²

July 21, 1978
Deadline for high schools and colleges to comply with Title IX athletics requirements.⁶

December 11, 1979
HEW issues final policy interpretation on “Title IX and Intercollegiate Athletics.”⁶ Rather than relying exclusively on a presumption of compliance standard, the final policy focuses on each institution’s obligation to provide equal opportunity and details the factors to be considered in assessing actual compliance: participation, benefits and treatment, and athletic financial assistance. This also marks the creation of the “three-prong test” (sometimes called the “three-part test” or “equal accommodations test”) still used today to gauge participation compliance.⁷

May 4, 1980
The U.S. Department of Education (ED) begins operating after its creation a year earlier and is given oversight of Title IX through the Office for Civil Rights (OCR).⁸

February 28, 1984
Grove City v. Bell limits the scope of Title IX, effectively taking away coverage of athletics except for athletic scholarships. The Supreme Court concludes that Title IX only applies to specific programs (i.e., a school’s office of student financial aid) that receive federal funds.9 Under this interpretation, athletic departments are not necessarily covered.

March 22, 1988
The Civil Rights Restoration Act of 1987 is enacted into law over the veto of President Ronald Reagan.¹⁰ This act reverses Grove City v. Bell, restoring Title IX’s institution-wide coverage. If any program or activity in an educational institution receives federal funds, all of the institution’s programs and activities must comply with Title IX.

September 6, 1988
Haffer v. Temple University Title IX athletics lawsuit won by plaintiff female athletes gives new, stronger direction to athletic departments regarding their budgets, scholarships, and participation rates of male and female athletes.¹¹

April 2, 1990
Valerie M. Bonnette and Lamar Daniel author Title IX Athletics Investigator’s Manual, issued by OCR and used to assist athletic departments with enforcement and compliance issues.¹²

February 26, 1992
In Franklin v. Gwinnett County Public Schools, the Supreme Court rules that monetary damages are available under Title IX.¹³ Previously, only injunctive relief was available (i.e., the institution would be enjoined from discriminating in the future; effectively, probation).

March 1992
Shortly after the Franklin decision, the NCAA completes and publishes a landmark gender equity study of its Division I member institutions, finding significant discrepancies in participation rates and funding between women’s and men’s athletic programs. It also shows that fewer than 50% of women’s teams have female head coaches, as do just 1% of men’s teams, and that “male/female salary discrepancies are significant in almost all instances.”¹⁴

October 20, 1994
Sponsored by Sen. Carol Moseley Braun (S. 1468) and Rep. Cardiss Collins (H.R. 921) a year earlier, the Equity in Athletics Disclosure Act (EADA) is officially enacted.¹⁵ It requires that any co-educational institution of higher learning that participates in any federal student financial aid program and that sponsors an intercollegiate athletics program must disclose certain information concerning its athletics program. Under the EADA, annual reports are required, the first for each institution due no later than October 1, 1996. You can find the most recently reported data for these colleges and universities here.

January 16, 1996
OCR issues a clarification of the three-prong test, reiterating that institutions may choose any one of three independent tests to demonstrate that they are effectively accommodating the participation needs of the underrepresented sex.¹⁶

October 1, 1996
All institutions of higher education must make available for the first time, to all who inquire, specific information on their intercollegiate athletics department, as required by the EADA. In subsequent years, this date would be October 15.¹⁵

November 21, 1996
A federal appeals court upholds a lower court’s ruling in Cohen v. Brown University, holding that Brown University illegally discriminated against female athletes.¹⁷ Brown argues that it did not violate Title IX because women are less interested in sports than men. Both the district court and the court of appeals reject Brown’s argument. Many of the arguments offered by Brown are similar to those relied upon by colleges and universities all over the country.

July 23, 1998
OCR issues a Dear Colleague letter clarifying that a college or university’s total athletic scholarship budget must mirror the institution’s percentage of athletes of each gender, within 1%. “Thus, for example, if men are 60% of [a school’s] athletes, OCR would expect that the men’s athletic scholarship budget would be within 59%-61%” of the total scholarship budget for all athletes, after controlling for legitimate nondiscriminatory reasons for any larger disparity.¹⁸

February 20, 2001
The Supreme Court issues a decision in Brentwood v. Tennessee Secondary School Athletic Association, holding that a high school athletic association is a “state actor” and thus subject to the Constitution.¹⁹ This affirms that the Equal Protection Clause of the 14th Amendment applies to athletic associations in gender equity suits.

December 17, 2001
Communities for Equity v. Michigan High School Athletic Association is decided, holding the state athletic association liable under Title IX, the Equal Protection Clause, and Michigan state law for discriminating against girls by forcing six girls’ sports teams, but no boys’ teams, to compete in nontraditional and/or disadvantageous seasons.²⁰

January 17, 2002
The National Wrestling Coaches Association, Committee to Save Bucknell Wrestling, Marquette Wrestling Club, Yale Wrestling Association, and the College Sports Council (representing national collegiate coaches associations for men’s and women’s swimming, men’s and women’s track and field, men’s wrestling and men’s gymnastics), file a suit alleging that Title IX regulations and policies are unconstitutional. It would be dismissed two years later.²¹

June 27, 2002
Secretary of Education Rod Paige announces the establishment of a Commission on Opportunities in Athletics. The stated purpose of the Commission is “to collect information, analyze issues and obtain broad public input directed at improving the application of current Federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX.”²²

October 29, 2002
Following her death one month prior, Title IX is renamed the “Patsy T. Mink Equal Opportunity in Education Act” in honor of its major author.²³

July 11, 2003
OCR issues “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.”²⁴ This Further Clarification reaffirms the validity and effectiveness of long-standing administrative regulations and policies governing this application.

March 17, 2005
ED issues “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test – Part Three,”²⁵ significantly weakening Title IX. Schools can now simply send out an email survey to their female students, asking them what additional sports they might have the interest and ability in playing. And if the survey responses do not show enough interest or ability, they do not have to add any sports—and are presumed in compliance with Title IX.

April 20, 2010
ED issues a policy guidance which rescinds the aforementioned “Additional Clarification” and all related documents, including the recommended survey.²⁶

April 4, 2011
ED issues a policy guidance which makes clear that Title IX’s protections against sexual harassment and sexual violence apply to all students, including athletes. It addresses athletics departments in particular in its requirement that schools to use the same procedures that apply to all students to resolve sexual violence complaints involving student athletes.²⁷

April 24, 2013
OCR issues a Dear Colleague letter reminding schools and institutions that retaliation is a violation of federal law.²⁸

June 25, 2013
OCR issues a Dear Colleague letter and creates literature to improve the graduation rates of young parents at secondary schools and postsecondary institutions. The literature stresses that students must be allowed to return to all former academic and extracurricular activities.²⁹

May 14, 2014
OCR issues a Dear Colleague letter that reiterates to public charter schools that they are subject to the same federal civil rights laws, regulations and guidance that apply to other public schools.³⁰

April 24, 2015
OCR issues a Dear Colleague letter to remind school districts, colleges and universities that if they receive federal financial assistance, they must assign at least one employee as their Title IX coordinator.³¹

May 13, 2016
ED and DOJ issue guidance on protecting transgender students under Title IX.³² ED outlines that the prohibition of sex discrimination encompasses discrimination based on a student’s gender identity, including transgender status. In relation to athletics, schools are permitted to operate sex-segregated athletic teams, but they cannot adopt requirements that are based on stereotypes about differences between transgender students and cisgender students. This interpretation allows age-appropriate, tailored requirements that are based on current medical research about the impact of student participation on competitive fairness and physical safety.

February 22, 2017
OCR rescinds Title IX guidance on transgender students issued on May 13, 2016.³³

September 22, 2017
OCR withdraws policy guidance issued on April 4, 2011, which had clarified that Title IX’s procedures and protections against sexual harassment and sexual violence apply to all students, including athletes.³⁴ However, this withdrawal has since been rescinded.

August 14, 2020
Secretary of Education Betsy DeVos enacts several changes to Title IX regarding sexual harassment and misconduct that threaten to discourage reporting by survivors and stretch schools’ resources.³⁵

August 26, 2020
OCR rescinds guidance on public charter schools and the requirement that schools have a designated Title IX coordinator, issued on May 14, 2014, and April 24, 2015, respectively.^36,37

January 20, 2021
President Joe Biden releases Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which states, “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” According to the order, laws that prohibit sex discrimination, including Title IX, “prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”³⁸

March 8, 2021
President Biden releases Executive Order 14021, “Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” It states the Biden Administration’s objective to guarantee to all students “an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” citing Title IX as applicable governing law.³⁹

June 16, 2021
ED issues an interpretation to clarify the protection against discrimination based on sexual orientation and discrimination based on gender identity under Title IX in light of the Supreme Court’s decision in Bostock v. Clayton County.⁴⁰

Some information in this timeline is adapted from the University of Iowa’s History of Title IX Legislation, Regulation and Policy Interpretation.

<sup>1. https://www.uscourts.gov/educational-resources/educational-activities/14th-amendment-and-evolution-title-ix
2. https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1404&context=sportslaw
3. https://www2.ed.gov/pubs/TitleIX/part3.html
4. https://www.congress.gov/bill/94th-congress/house-bill/8394?r=51&s=1
5. https://www.seattletimes.com/seattle-news/a-title-ix-timeline/
6. https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html
7. https://www2.ed.gov/about/offices/list/ocr/docs/title9-qa-20100420.html
8. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf#page=14
9. https://www.uscourts.gov/educational-resources/educational-activities/grove-city-college-v-bell-facts-and-case-summary
10. https://www.govtrack.us/congress/bills/100/s557
11. https://law.justia.com/cases/federal/district-courts/FSupp/678/517/1474600/
12. https://eric.ed.gov/?id=ED400763
13. https://supreme.justia.com/cases/federal/us/503/60/
14. http://bailiwick.lib.uiowa.edu/ge/CHBGrant/di_ge.pdf
15. https://www.nwlc.org/wp-content/uploads/2015/08/BDB07_Ch7and8.pdf
16. https://www2.ed.gov/about/offices/list/ocr/docs/clarific.html
17. https://www.clearinghouse.net/chDocs/public/ED-RI-0001-0004.pdf
18. https://www2.ed.gov/about/offices/list/ocr/docs/bowlgrn.html
19. https://supreme.justia.com/cases/federal/us/531/288/
20. https://law.justia.com/cases/federal/district-courts/FSupp2/178/805/2510014/
21. https://caselaw.findlaw.com/us-dc-circuit/1269833.html
22. https://www2.ed.gov/about/bdscomm/list/athletics/title9report.pdf
23. https://www.govinfo.gov/content/pkg/STATUTE-116/pdf/STATUTE-116-Pg1734.pdf#page=1
24. https://www2.ed.gov/about/offices/list/ocr/title9guidanceFinal.html
25. https://files.eric.ed.gov/fulltext/ED491069.pdf
26. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100420.pdf
27. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html
28. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html
29. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201306-title-ix.pdf
30. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405-charter.pdf
31. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf
32. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
33. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf
34. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf
35. https://www.jdsupra.com/legalnews/u-s-department-of-education-new-title-78019/
36. https://www2.ed.gov/policy/gen/guid/fr-200826-letter.pdf
37. https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/respolicy.html
38. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/
39. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/
40. https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-noi.pdf</sup>