Will a Court Case Change Title IX Equity in Athletics?

By Joseph Storch

Institutions have used the U.S. Department of Education’s three-part test for gender equity in athletics for decades. A recent Sixth Circuit Court of Appeals decision signals that the standard may not be long for this world, with uncertainty as to what may replace it. What should institutions do in the interim?

Title IX of the Education Amendments of 1972 establishes a general prohibition on sex-based discrimination in education, without reference to athletics. By the late 1970s, the Department of Education (ED), spurred by a Congressional amendment1, interpreted Title IX to require gender equity in intercollegiate athletics.

Three-Part Test

In December 1979, ED issued regulations2 introducing the now familiar three-part test to assess whether institutions provide equitable athletic opportunities. An institution complies by meeting at least one test:

The number of male and female athletes is substantially proportionate to their respective enrollments; or
The institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or
The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex.

Chevron to Loper Bright Signals a Change to Agency Interpretation Strength

For decades, courts generally deferred to agency interpretations under “Chevron deference,” based on a 1984 Supreme Court case, Chevron v. Natural Resources Defense Council3. Under that doctrine, reviewing courts would recognize the technical expertise of agency experts and offer deference to reasonable interpretations of vague laws. Even though Title IX did not reference athletics or the three-part test, higher education largely accepted ED’s regulatory framework of how to meet the athletic requirements of Title IX.

That framework shifted considerably in the 2024 case Loper Bright Enterprises v. Raimondo, when a Supreme Court majority overturned Chevron, ruling that federal law required courts—not agencies—to interpret statutes and divine their meaning. This follows upon a recent series of Supreme Court cases declaring that “major questions,”4 which concern “vast economic and political significance,” must either be decided by Congress or that authority must be clearly delegated to an agency.

If the three-part test is struck down, states may use their regulatory power to fill the gap.

Loper Bright sets out a new test for agency regulations. In general, courts interpret what laws mean. Agency actions are more likely to survive judicial review when they closely track the statute, reflect longstanding practice, and remain stable over time and across presidencies. No bright line rules apply, and courts will be busy unpacking the new test.

Is Niblock the Canary in the Coal Mine?

In Niblock et al. v. University of Kentucky, students alleged that the University of Kentucky violated Title IX by not offering women’s equestrian, field hockey, and lacrosse. Kentucky maintains a large and successful athletics program, and it surveys students annually about athletic participation and interest by using data to determine program additions.

The university defended the case in two ways. First, it argued that there were insufficient interested and able students to field a Division I squad in these sports. Second, it argued that post-Loper Bright, federal courts should not defer to ED’s regulatory three-part test. Kentucky denied that the university’s decision was on the basis of sex, noting the Wildcats do not have a men’s equestrian, field hockey, or lacrosse team. The District Court applied the ED regulation and guidance, and found the university5 proved, after reviewing the student survey, there were not enough students who were both interested in each sport and able to compete at a Division I level. It rejected the university’s Loper Bright argument6 and the university appealed.

The majority of the Sixth Circuit narrowly affirmed7 the District Court. The Court found that the plaintiffs failed to meet their burden of sufficient interest and ability among the student body. While that was sufficient to decide this case, a concurring opinion by two Circuit judges openly questioned the continued validity of the regulations and guidance discussed above. Citing to Loper Bright and related cases, the Court wrote, “Suffice to say, we are skeptical of this guidance's validity. The Department of Health, Education, and Welfare adopted the guidance in a different world, one where the modern Department of Education did not yet exist and one where courts routinely deferred to agency interpretations of statutes and regulations… But a lot has changed since 1979. We no longer defer to agency interpretations of the statutes they administer.”

Noting that the Supreme Court has never reviewed the ED regulations or guidance, the judges called for the Sixth Circuit to review and potentially strike them down. The Court acknowledged the gravity of taking such an action without clarity on what replaces it.

What’s Next?

Nothing has changed based on Niblock—yet. But colleges and universities should evaluate how their Circuit Court may approach the three-part test if directly challenged.

While the Supreme Court wrote in Loper Bright that decisions in prior cases should generally be respected under the principle of stare decisis8 (let the decision stand), the risk of divergent decisions across Circuits is real. Further, courts may strike down the regulations just in their Circuit or across the country.

If the three-part test is struck down, states may use their regulatory power to fill the gap. We have already seen a fracturing in different state approaches to Title IX sexual misconduct response and prevention, and we may ultimately see different approaches to athletics equity based on state political leadership.

Risk Manager Considerations

In a time of uncertainty, risk managers should:

Coordinate with athletics, compliance, and counsel to ensure awareness of evolving case law.
Review compliance with current ED standards for intercollegiate, club, and intramural athletics.
Assess with counsel institutional exposure based on Circuit precedent and potential state action.
Consider how your institution would approach gender equity in athletics if not regulated by ED.

As Ferris Bueller might have said, “Title IX law moves pretty fast; if you don’t keep up with the litigation, you might miss it.” The clock may be running out on the three-part test for athletics compliance. Now is a good time for institutions to draw up their plays.

Is Niblock the Canary in the Coal Mine?

Disclaimer: The views and opinions expressed in this article are those of the author in a personal capacity and are intended for general informational purposes only. They do not reflect the experiences, positions, or official policies of the author’s institutions or any affiliated organization.