Title IX, The Rehabilitation Act, and
The Americans with Disabilities Act
Title IX and the Scholarship
Dilemma
Title IX:
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
Title IX and the Scholarship
Dilemma
•
A wave of litigation in the early
1990s focused primarily on the
issue of participation rates,
disputes which were often
prompted by the institution’s
decisions to eliminate both men’s
and women’s teams as part of
general budget cuts
•
The question of participation
opportunities took precedent-issues like financial aid,
equipment budgets, and practice
facilities were irrelevant unless
women’s teams existed to enjoy
those benefits
Title IX and the Scholarship
Dilemma
•
OCR’s Policy Interpretation offered one practical avenue for demonstrating compliance
in the equity of participation rates:
•
Whether selection of sports and levels of competition effectively accommodate the
interests and abilities of members of both sexes
•
3 ways to measure this:
1. Whether intercollegiate level participation opportunities for male and female students are
provided in numbers substantially proportionate to their respective enrollments
2. Where the members of one sex have been and are underrepresented among
intercollegiate athletes, whether the institution can show a history and program expansion
demonstrating response to the developing interests and abilities of the members of that
sex
3. Where the members of one sex are underrepresented among intercollegiate athletes, and
the institution cannot show a continuing program expansion, whether it can be
demonstrated that the interests and abilities of the members of that sex have been fully
and effectively accommodated by the present program
Title IX and the Scholarship
Dilemma
•
First option - the proportionality standard - became the only relevant issue
•
Given the almost universal success of the proportionality standard, most
institutions had a clear understanding of their participation obligations under
Title IX and began moving toward compliance
Daniels v. School Board of
Brevard County
Facts:
•
Jessica & Jennifer Daniels are
suing the School Board of
Brevard County, based on
disparities between the Merritt
Island High School girls’ softball
and boys’ baseball programs
•
The claims are based on Title
IX and the Florida Act
•
Plaintiffs seek preliminary
injunction
Daniels v. School Board of
Brevard County
Title IX:
•
Title IX was passed to avoid the use of federal resources to
support discriminatory practices and to provide individual
citizens effective protection against those practices
•
No person on the basis of sex shall be excluded, denied, or
treated differently in any interscholastic, intercollegiate, club or
intramural athletics
The Florida Act
•
Prohibits gender discrimination in public education
Daniels v. School Board of
Brevard County
Plaintiffs assert the following inequities at the MIHS softball and baseball
facilities:
•
•
•
•
•
•
•
•
Electronic Scoreboard - Boys have electronic scoreboard where girls have
none
Batting Cage - Boys have a batting cage, girls do not
Bleachers - Girls’ bleachers are in bad condition and seat fewer spectators
Signs - Signs only publicize boys’ baseball team
Bathroom Facilities - No Restrooms on the girls’ softball field
Concession Stand/Press Box/Announcer’s booth - No such structure on Girls
field
Field Maintenance - Girls’ field not well-maintained
Lighting - Boys can play at night, girls cannot
Daniels v. School Board of
Brevard County
•
Plaintiffs have demonstrated a substantial threat of irreparable injury: girls’ softball
is not as worthy as boys’ baseball
•
Harm associated with treatment as second-class athletes is significant
•
Plaintiffs are entitled to a preliminary injunction
Mercer v. Duke University
Facts:
•
Mercer, a female, tried out for the Duke football team
as a walk-on kicker
•
Mercer served as manager for the 1994 season and
participated in practices
•
Mercer participated as a kicker for an intrasquad
scrimmage played each spring and kicked the winning
field goal
•
In 1995, Mercer was listed on the roster and
participated in practices but never participated in
games
•
In 1996 Mercer was dropped from the team
•
Mercer alleges her coach made offensive comments
toward her, refused to let her dress for games or sit on
the sidelines, did not let her attend summer camp, and
released her from her team based on her sex
Claim:
•
Duke discriminated against Mercer during her
participation in the intercollegiate football program,
violating Title IX
Mercer v. Duke University
•
Department of Health Education and Welfare (HEW):
•
(a) … No person shall, on the basis of sex, be excluded from participation in, be denied the
benefits of … interscholastic, intercollegiate, club or intramural athletics…
•
(b) … Where a recipient operates a team in a particular sport for members of one sex but
operates no such team for members of the other sex, and athletic opportunities for members of
that sex have previously been limited, members of the excluded sex must be allowed to try out
for the team offered unless the sport involved is a contact sport….
•
HEW permits covered institutions to operate separate teams for men and women in many sports,
including contact sports, rather than integrating those teams
•
Once an institution has allowed a member of one sex to try out for a team operated by the institution
for the other sex in a contact sport, subsection (b) is simply no longer applicable, and the institution is
subject to the general anti-discrimination provision of subsection (a)
•
Because Duke allowed Mercer to try out for its football team, then discriminated against her and
ultimately excluded her from participation in the sport on the basis of her sex, Mercer has stated a
claim under the applicable regulation, and therefore under Title IX
Mercer v. Duke University
The court held that where a university has allowed a member of the opposite sex to
try out for a single-sex team in a contact sport, the university is subject to Title IX and
therefore prohibited from discriminating against that individual on the basis of his or
her sex
Boucher v. Syracuse
University
Facts:
•
Plaintiffs consist of 7 members of the
Syracuse women’s lacrosse team and 1
member of the Syracuse softball team
•
32.4% of athletes at Syracuse are women
•
Syracuse has 9 women’s varsity teams
and 11 men’s varsity teams
Claim:
•
Plaintiffs allege Syracuse discriminated
against female athletes, provided unequal
benefits to females compared to male
athletes, and provided unequal
scholarship funding thus violating Title IX
Boucher v. Syracuse
University
“Safe Harbor”
Where a university has a practice of expanding its athletic program, approaching
proportionality and meeting the needs of the under-represented gender; and
continues to expand in response to its student body’s interests and abilities, as
well as that of secondary feeder schools; symmetry in athletic programs is not
required under Title IX, and liability may be avoided
•
District Court granted summary judgment to Syracuse University because the
school has a long history of adding women’s sports programs, it funded
women’s scholarships, and provided enhanced facilities and coaching
•
Syracuse also increased the number of female participants in varsity sports
from 148 to 217 and it had established 2 new varsity women’s teams since
1995 with another team coming in 1999
Boucher v. Syracuse
University
Lacrosse
•
Plaintiffs sought a varsity lacrosse team. Claim is moot since the team has been created and is
already participating in intercollegiate play
Softball
•
•
The University is in the process of establishing a varsity women’s softball team
Full implementation of the softball team would render remaining live aspect of case moot, remanded
to district court to dismiss case if University completes plan to institute a varsity women’s softball
team by date indicated
Boulahanis v. Board of
Regents
Facts:
•
Illinois State University conducted a study
which found that there was less female
participation in athletics
•
The school sought equitable participation
opportunities for women
•
The University sought to provide
participation opportunities for men and
women that were substantially
proportionate to rates of enrollment
•
The University dropped men’s wrestling
and men’s soccer, added women’s soccer,
and adjusted men’s roster grants in aid for
both men and women
•
Plaintiffs are former members of the men’s
soccer and men’s wrestling teams
Boulahanis v. Board of
Regents
Claim:
•
University’s decision to eliminate the program in which they participated
was based on sex and therefore violates Title IX
Analysis:
•
Test for discrimination is whether the evidence shows treatment of a
person would be different based on that person’s sex
•
The court refuses to allow Universities to achieve substantial
proportionality by simply adding women’s programs because it would
ignore financial and budgetary constraints that universities face
•
The elimination of men’s athletic programs is not violation of Title IX as
long as men’s participation in athletics continues to be “substantially
proportionate” to their enrollment
Boulahanis v. Board of
Regents
Because the University has achieved substantial proportionality between men’s
enrollment and men’s participation in athletics, it is presumed to have accommodated
the athletic interests of that sex
Equity in Athletics v. US
Dept. of Education
Facts:
•
EIA sought preliminary
injunction to prevent James
Madison University (JMU) from
eliminating 7 men’s sports and
3 women’s sports from its
intercollegiate athletic program
•
EIA claims JMU intentionally
discriminated against male
athletes in violation of Title IX
Equity in Athletics v. US
Dept. of Education
•
A recipient which operates or sponsors interscholastic, intercollegiate, club or
intramural athletics shall provide equal athletic opportunity for members of both
sexes
•
Must consider whether the selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both sexes
•
JMU eliminated the sports in order to obtain proportionality between gender
makeup of its athletic programs and its undergraduate enrollment
•
Equal opportunity is not tied to expressed interest rather than actual participation
•
The University actions were taken in an attempt to comply with the requirements
of Title IX, plaintiffs’ attack on those actions is merely a collateral attack on the
statute and regulations and is therefore impermissible
•
Public interest favors JMU’s ability to chart its own course in providing athletic
opportunities without judicial interference or oversight
Equity in Athletics v. US
Dept. of Education
The University’s actions of eliminating 7 men’s sports and 3 women's sports were
taken in an attempt to comply with the requirements of Title IX
Intersection of Sports and
Disability
•
Rehabilitation Act of 1973: applies to federally funded programs
•
Americans with Disabilities Act of 1990: Broad coverage, reaches
most private employers and private entities
•
Both the Rehabilitation Act and Americans with Disabilities Act
prohibit discrimination on the basis of disability and also obligate
entities to provide reasonable accommodations, modifications, or
auxiliary aids that will enable qualified individuals with disabilities to
access and to participate in the program or activity
•
A goal of these laws, which apply to virtually all sports teams and
organizations, is to assure the equality of opportunity and full
participation for individuals with disabilities
Intersection of Sports and
Disability
•
No individual shall be discriminated against on the basis of disability in
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or operates a place of
public accommodation
•
Goods, services, facilities, privileges, advantages, and accommodations
shall be afforded to an individual with a disability in the most integrated
setting appropriate to the needs of the individual
•
Exceptions are warranted only where the entity can demonstrate that
such criteria are necessary or that making such modifications would
fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations
Intersection of Sports and
Disability
Stating a Disability Rights Claim
•
Athlete must establish 4 elements:
1. Program is a “covered entity”
under law
2. Athlete is “disabled” within the
meaning of the statute
3. Athlete is “otherwise qualified”
to participate with or without
reasonable accommodation
4. Athlete was discriminated
against because of disability
Intersection of Sports and
Disability
4 Elements:
1. “Covered Entity”
Rehabilitation Act covers recipients of federal funds
• Public programs, schools, colleges, or universities
• ADA covers private entities and places of public accommodation
• Title I - Employment
• Title II - Public programs and services
• Title III - Private entities constituting places of public accommodation
• Some courts limit covered entity to the physical structure
2. “Disabled”
• The athlete has a physical or mental impairment that substantially limits one or more of the major life activities
of such individual
• Is sport participation a major life activity?
3. “Otherwise Qualified”
• Qualified to participate if he or she can meet essential program eligibility requirements with or without
reasonable modifications to the program's rules, policies, or practices
4. Discriminated Against
• Discrimination: includes imposition or application of eligibility criteria that screen out or tend to screen out an
individual with a disability from fully and equally enjoying any goods, services, facilities, privileges, advantages,
or accommodations
Intersection of Sports and
Disability
Disability rights arise in 3 types of cases
1. Athletes with high medical risk seek to participate
2. Athletes who fail to meet a “neutral” eligibility requirement
3. Athletes who need accommodation or modification to rules in order to play the
particular sport
Knapp v. Northwestern
University
Facts:
•
Knapp was recruited by numerous
universities to play basketball
•
Knapp suffered cardiac death during a pickup basketball game
•
Knapp has an internal cardioverterdefibrillator in his abdomen so if his heart
stops again, the device can restart it
•
Northwestern informed Knapp that
whatever his family decided, they would
honor its commitment for a scholarship
•
Knapp signed a national letter of intent to
attend Northwestern
•
Northwestern’s head team physician
declared Knapp ineligible to participate on
the men’s basketball team
Knapp v. Northwestern
University
•
To prevail on his claim for discrimination under the Rehabilitation Act, Knapp
must prove that: (1) he is disabled as defined by the Act; (2) he is otherwise
qualified for the position sought; (3) he has been excluded from the position
solely because of his disability; and (4) the position exists as part of a
program or activity receiving federal financial assistance
•
The Act requires only that an “otherwise qualitified” disabled person not be
excluded from participation in federally funded program solely because of the
disability
•
A significant risk of personal physical injury can disqualify a person from a
position if the risk cannot be eliminated
•
In order to exclude individual, there must be a showing of reasonable
probability of substantial harm
Knapp v. Northwestern
University
•
The Internal defibrillator had never been
tested under conditions like intercollegiate
basketball game or practice so unclear
whether the device would work under stress
and physical conditions of a high-intensity
sport
•
Medical determinations of this sort are best
left to team doctors and universities as long
as they are made with reason and
rationality and with full regard to possible
and reasonable accommodations
•
If there is conflicting expert testimony
regarding the degree of serious risk of harm
or death, the court must determine whether
the exclusion of an individual was
individualized, reasonably made, and based
upon competent medical evidence
Knapp v. Northwestern
University
The court held that Northwestern must be allowed to make its own determinations of
substantial risk and severity of injury if they are based on reliable evidence
Ganden v. National Collegiate
Athletic Association
Facts:
•
Ganden was diagnosed with a learning disability
and received an Individualized Education Plan
(IEP) in high school to help him prepare for
college
•
IEP includes remedial courses and usually not the
core courses required to be NCAA eligible for
Division I competition
•
Ganden was one of the nation’s fastest swimmers
•
Michigan State University offered Ganden a
swimming scholarship on condition of receiving a
waiver from NCAA modifying its core course
requirement
•
NCAA refused to grant waiver
Claim:
•
NCAA’s denial of Ganden’s waiver application
violated Title III of the Americans with Disabilities
Act
Ganden v. National Collegiate
Athletic Association
Substantive Claim
1. Discrimination on the Basis of
Disability
•
Congress recognized that discrimination
on basis of disability is most often the
product, not of invidious animus, but
rather thoughtlessness and indifference
of benign neglect
•
Ganden failed to take requisite core
courses or satisfy remaining eligibility
criteria because of his disability
•
Ganden presented strong prima facie
case that there is a causal link between
NCAA refusal to certify Ganden a qualifier
and his learning disability
Ganden v. National Collegiate
Athletic Association
2. Reasonable Modifications
•
•
•
•
•
•
•
•
Whether Ganden’s requested modifications are reasonable or would fundamentally alter the nature
of the privilege or accommodation to which he has been denied access
The NCAA was created to promote the concept of student-athlete through both athletic excellence
and academic development
The eligibility requirements (1) insure that student-athletes are representative of the college
community and not recruited solely for athletics (2) insure that a student-athlete is academically
prepared to succeed at college; and (3) preserve amateurism in intercollegiate sports
Title III requires the NCAA to consider a student’s progress in his or her IEP courses and overall
high school career
Many of courses Ganden took are not even close to subject matter of the core courses
Lowering the minimum GPA for Ganden would fundamentally alter the nature of the privilege
NCAA considered Ganden's disability, his efforts to overcome it, and his impressive academic
gains during his final two years of high school
Title III does not require the NCAA to simply abandon its eligibility requirements, but only to make
reasonable modifications to them
Ganden v. National Collegiate
Athletic Association
3. Necessity of Eligibility Criteria
•
Whether the modifications to
the eligibility criteria are
reasonable or would require a
modification of the essential
nature of the program
•
The core courses definition is
necessary to the provision of
the privilege to the extent that
it excludes Ganden’s courses
•
NCAA GPA minimum is also
necessary
Ganden v. National Collegiate
Athletic Association
Ganden has not shown a reasonable likelihood of success on the critical allegation that
NCAA’s denial of his waiver application constituted “discrimination” under Title III
PGA Tour v. Martin
Facts:
•
Martin is a talented golfer who has qualified for the
NIKE TOUR and PGA TOUR
•
Martin has Klippel-Trenaunay-Weber Syndrome, a
degenerative circulatory disorder that obstructs the
flow of blood from his right leg back to his heart
•
Martin could no longer walk an 18-hole golf course
•
NCAA waived for Martin their rules requiring players to
walk and carry their own clubs
•
There are three-stages in order to qualify for the PGA
TOUR or NIKE TOUR
•
The first two stages permitted Martin to use a cart
•
The PGA TOUR refused to allow Martin to use a cart
for the third stage
Issue:
•
Whether allowing Martin to use a golf cart, despite the
walking requirement that applies to the PGA TOUR,
the NIKE TOUR, and the third stage of the Q–School,
is a modification that would “fundamentally alter the
nature” of those events
PGA Tour v. Martin
•
PGA asserts that the condition of walking is a substantive rule of competition, and that waiving it
as to any individual for any reason would fundamentally alter the nature of the competition
•
Discrimination is defined by Title III to include:
•
a failure to make reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the entity can demonstrate that making
such modifications would fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations
•
The goal of the highest-level competitive athletics is to assess and compare the performance of
different competitors, a task that is meaningful only if the competitors are subject to identical
substantive rules
•
Expert testimony concluded golf is a low intensity activity and that fatigue from the game is
primarily a psychological phenomenon in which stress and motivation are the key ingredients
rather than exercise from walking and that most golfers walk to relieve stress of the game
PGA Tour v. Martin
•
If the purpose of walking the course is
to impose fatigue on players, Martin
easily endures greater fatigue even
with a cart than his able-bodied
competitors do by walking
•
Congress intended that an entity like
the PGA not only give individualized
attention to the handful of requests that
it might receive from talented but
disabled athletes for a modification or
waiver of a rule to allow them access
to the competition, but also carefully
weigh the purpose, as well as the
letter, of the rule before determining
that no accommodation would be
tolerable
PGA Tour v. Martin
As a public accommodation during its tours and qualifying rounds, petitioner may not
discriminate against either spectators or competitors on the basis of disability