Title IX ruling: eliminating sex discrimination is about quantity and quality

I don’t remember who first told me about Title IX, but I’m pretty sure it was a teacher who explained to me that the law required colleges and universities to have “an equal number of women’s and men’s sports teams.” While this statement comes close to expressing the sentiment behind Title IX, it gets a lot wrong.

Title IX is shorthand for a component of the Education Amendments of 1972, which made several changes to federal law. Its key operative provision holds that “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. § 1681(a).

In other words, it prohibits schools that receive federal funding from discriminating on the basis of sex, including in their athletic and other extracurricular offerings. Some schools may interpret this to mean they should offer the same number of women’s teams as they do men’s teams–and while that is a good start, it is only a start.

A recent decision by the U.S. Court of Appeals for the Ninth Circuit demonstrates why. In Ollier v. Sweetwater Union High School District, the plaintiffs filed a class action alleging that a California school district “‘intentionally discriminated’ against female students … by ‘unlawfully fail[ing] to provide female student athletes equal treatment and benefits as compared to male athletes.'”

As part of its defense, the school district argued that in some ways, female students has it better than male students because there were “more athletic sports teams for girls (23) than … for boys (21)[.]” Despite this, a trial court found–and the Ninth Circuit affirmed–that the school district “violated Title IX by failing to provide equal treatment and benefits in nine different areas, including recruiting, training, equipment, scheduling, and fundraising.” The courts reached this conclusion in part because there was not actually a “rough proportionality” between the actual number of female and male athletes, but also because the school district had failed to show “‘a history and continuing practice of program expansion … responsive to the developing interest and abilities of’ female athletes” or “’that the interests and abilities of’ female students ‘ha[d] been fully and effectively accommodated” by the district.

In sum, the trial and appeals courts found that a lot more boys were participating in sports programs than girls, that the district was making no real effort to fix the disparity, and that the disparity was not because of a lack of interest among girls. This was enough for the students to demonstrate unlawful sex discrimination under Title IX.