Updated: Aug 11, 2022
Every sports law scholar and attorney can likely recite the famous “three-part test” (the “Test”) [i] used in analyzing an athletic department’s compliance with Title IX of the Education Amendments Act of 1972 (“Title IX”).[ii] This prominence is likely due to federal appellate courts universally relying on the Test[iii] to evaluate sex discrimination in sports for almost thirty years. [iv] This focus from the courts, along with the many detailed interpretations of the Test by the United States Department of Education’s Office of Civil Rights (“OCR”), has entrenched the Test “as the foundation for understand and assessing Title IX compliance.” [v]
However, is the Test the only standard in evaluating such cases? Perhaps not.
When the University of North Dakota (“UND”) terminated its women’s hockey program after the 2016-17 season despite a history of success, [vi] eleven players sued the school for violating Title IX. This lawsuit was dismissed by the United States District Court for the District of North Dakota – Fargo (the “District Court”) in 2019 for failing to state a claim, particularly that the plaintiffs did not state an actionable claim under the Test.[vii] However, the players’ main argument was not that UND failed to satisfy each prong of the Test, but that UND did not comply with Title IX in ways beyond the Test. On appeal, the United States Court of Appeals for the Eighth Circuit (the “8th Circuit”) found this novel argument compelling in a decision released this August.[viii]
OCR’s first Title IX interpretation came in 1979 (the “1979 Interpretation”)[ix], which introduced the Test. However, as meticulously described in Chief Judge L. Steven Grasz’s opinion, “the 1979 Interpretation’s plain text and structure show that the agency expressly gives institutions different ways to comply with the different obligations which the agency has decided Title IX imposes.”[x] The 1979 Interpretation “delineates three overarching compliance subsections”, with the third subsection, “Effective Accommodation of Student Interests and Abilities”, being most crucial in this case. Under this subsection, the agency stated it will assess compliance under three separate provisions: (1) “Determination of Athletic Interests and Abilities”; (2) “Selection of Sports”; and (3) “Levels of Competition”.
UND relied on the “Levels of Competition” provision, which encompasses the Test, while the plaintiffs alleged that UND failed to adhere to the “Selection of Sports” provision. Of most importance, this provision states what “effective accommodation” means for “contact sports”, like ice hockey:
“. . . if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: (1) The opportunities for members of the excluded sex have historically been limited; and (2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and reasonable competition for that team.”[xi]
At its core, the plaintiffs’ argument is that UND must have a women’s hockey team because there is a men’s hockey team at the school, opportunities for women to participate in intercollegiate hockey at UND have been historically limited, and there is sufficient interest and ability among female students at UND to field a viable and competitive team. It appears these former Fighting Hawks may have a strong case under the “Selection of Sports” provision.[xii]
The three-judge panel agreed with the plaintiffs that, even though the “Selection of Sports” provision has never been “interpreted” by OCR or analyzed by the courts, the Test is only one of the many factors that are examined to determine compliance under Title IX and found their argument convincing enough to reverse and remand the matter back to the District Court so the players can fully state their case. As Judge Grasz stated, “[t]he agency’s decisions to repeatedly clarify the 133 words in the three-part test does not mean it has decided to abandon the 1979 Interpretations other 5,300-plus words.”[xiii] Circuit Judge David Stas concurred noting, “we have to read the policy interpretation as a whole, not just zero in on one part of it. . . We can only assume, in other words, that the agency did not go to the trouble of constructing a ten-page document only to have a few lines of it—those devoted to the three-part test—mean anything.”[xiv]
While the UND players are not guaranteed to win this case, the potential impact of a court like the 8th Circuit finding that the Test is not the conclusive element in Title IX analysis could be immense for future Title IX litigants and completely change how schools attempt to comply with Title IX. At the very least, an institution would have to think twice about eliminating its women’s hockey program when it fields a men’s team or creating a men’s program without a corresponding women’s program.
*Daniel S. Greene is an attorney based in Syracuse, New York. He has been published by The Sports Lawyers Journal and New York State Bar Association’s Entertainment, Arts and Sports Law Journal, and has guest lectured on various sports law topics at the Syracuse University College of Law.
[i] Dep’t of Educ., Off. for C.R., Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test—Part Three (Mar.17, 2005), https://www2.ed.gov/about/offices/list/ocr/docs/title9-qa-20100420.html. The Test states: “(1) The number of male and female athletes is substantially proportionate to their respective enrollments; or (2) The institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or (3) The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex.” [ii] 20 U.S.C. §§ 1681–1688 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.” [iii]See McCormick ex rel v. School Dist Mamaroneck, 370 F.3d 275, 300 (2d Cir. 2004) (noting that “most Title IX litigation has centered around application of this test.”); see also Donna de Varona and Julie Foudy, Minority Views on the Report of the Commission on Opportunity in Athletics, 14 Marq. Sports L. Rev. (2003), p. 7 (stating that “[t]he lawfulness of the three-part test has been affirmed by every federal appellate court to consider the issue.”). [iv]Cohen v. Brown University, 991 F.2d 888, 891 (1st Cir. 1993). [v] Unwalla, Simone, “Ghost Athletes: A Subversion of Gender Equity and Violation of Title IX” (2019). Honors Theses (PPE). Paper 41, p. 14-15. [vi] “University of North Dakota cuts its women’s ice hockey program: Title IX lawsuit ahead?”, The Hockey Blawg, https://www.thehockeyblawg.com/single-post/2017/07/05/university-of-north-dakota-cuts-its-women-e2-80-99s-ice-hockey-program-title-ix-lawsuit-a. [vii] “Federal judge dismisses UND women’s hockey lawsuit”, Sydney Mook, Grand Forks Herald, June 20, 2019, https://www.grandforksherald.com/sports/hockey/2721836-Federal-judge-dismisses-UND-womens-hockey-lawsuit. [viii] “Berndsen v. N.D. Univ. Sys., No. 19-2517 (8th Cir. August 10, 2021), https://ecf.ca8.uscourts.gov/opndir/21/08/192517P.pdf. [ix] Title IX of the Education Amendments of 1972: A Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979), https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html. [x]See note viii, p. 8. [xi]See note ix, Section VII.C.4.a. [xii] “How To Revive a Hockey Team”, Kirsten Whelan, The Victory Press, June 15, 2018, https://victorypress.org/2018/06/15/how-to-revive-a-hockey-team-und-womens-ice-hockey/. [xiii]See note viii, p. 8-9. [xiv]See note viii, p. 16.