Another sports-related Title IX dispute highlights how the law fails to account for real-world problems that colleges and universities in the U.S. face all the time.

School Disbands Women's Sports Teams, Athletes Sue Under Title IX

This time, the situation developed at the Eastern Michigan University (EMU) in Ypsilanti, Michigan.

Facing budget concerns and lack of interest, the college cut four sports from the school, including two women's sports teams – softball and tennis. While the cuts impacted 58 male athletes and 25 female athletes, it was the members of the women's softball and tennis teams who sued the school. They claimed that the cuts took EMU out of compliance with Title IX's mandate that they offer equal athletic opportunities with men at the school.

EMU subsequently reinstated tennis, and proposed to add women's lacrosse. The district court hearing the case, however, refused the proposal and demanded that the school hire a softball coach and reinstate the team, instead.

EMU appealed the district court's order, and the federal appellate court sided with the school, stating that “Title IX requires equality between men's and women's teams, not that certain teams (say women's softball) be reinstated rather than other sports teams be created, supported, or expanded.”

The Three-Part Test Title IX Uses for Sports Issues

Ever since 1979, the Department of Education and its Office for Civil Rights has used a three-part test to determine if a college's sports system complied with Title IX's prohibition against sexual discrimination. 44 Fed. Reg. 71413 (1979) requires a school to satisfy at least one of the following:

1. The number of male and female athletes is substantially proportionate to the enrollment of men and women in the school,
2. The school has an ongoing history of expanding athletic offerings to the underrepresented sex, or
3. The school is fully and effectively accommodating the athletic interests of the underrepresented sex.

The “Unmet Interests” Factor

A school can fail the third prong of the test if there is “unmet interest” for a particular sport at the school – this was the core nugget of the claims brought by EMU's softball and tennis teams. Unmet interest also involves three things:

1. There is unmet interest in a particular sport
2. The school has the ability to sustain a team in that sport
3. There is a reasonable expectation that the team would play competitively

An unfortunately powerful insinuation behind a sports-related Title IX claim is that there has to be “unmet interest” every time a sports team files suit: If there wasn't “unmet interest,” there would be no lawsuit.

That simply is not the case in real life.

Athletes are emotionally invested in their teams, putting them in a poor position to gauge whether their squad is sustainable in the future. Needless to say, it is the school that is in the best position to determine whether the team is worth maintaining, based on future budgetary considerations, scouting, and the availability of other resources.

Title IX takes the decision-making power away from schools, and the powerful insinuation that there is unmet interest whenever a team sues under Title IX puts some of that power in the very people who are least capable of seeing the big picture.

National Title IX Advisor Joseph D. Lento

Joseph D. Lento is a national Title IX advisor who often represents students accused of sexual misconduct on campus. Contact him online or call his law office at (888) 535-3686.