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