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What Student Athletes Need to Know to Bring a Title IX Lawsuit Against Their School

Recent lawsuits have called attention to the high number of colleges and universities that are out of compliance with Title IX in their athletic programs. Figures from the U.S. Department of Education show that over 30% of Division I schools failed to meet financial aid requirements for female athletes and the percentage of schools violating the equal opportunity provisions in athletics may be as high as 90%.

In addition, many students believe that they are facing illegal discrimination in athletic programs due to their gender identity. But before hiring an attorney to file a Title IX lawsuit against a school, student athletes need to be aware of what’s involved, what they will need to prove, and what they can expect from the process.

The Right Grounds, Standing, and Goals for a Title IX Claim

To succeed with a Title IX case, a student athlete will need valid grounds for a legal challenge, showing how the school’s actions violated their specific Title IX rights. In addition, the student will need legal standing in order for a court to review the claim and will need to seek relief that is appropriate under the law. 

Student athletes who succeed with Title IX claims can literally make the world a better place for the athletes who come after them. But success may come at a cost.

Equality in Financial Aid, Opportunities, and Benefits

Of the three general requirements for school athletic programs to comply with Title IX, the requirement that the schools provide equal financial aid is the least complicated. Essentially, a school is supposed to distribute athletic scholarship money to athletes based on the proportion of each gender participating in athletic programs. If 55% of the athletes at a school are female, for instance, then 55% of athletic scholarship money should be awarded to female athletes. 

One of the key allegations in an ongoing lawsuit involves an alleged disproportionate award of funding, with female athletes claiming that they should be entitled to money from their school to make up for scholarship funding that they should have received but did not. Title IX lawsuits generally do not seek monetary compensation as part of the relief, so if this claim succeeds, it will break new ground in Title IX claims.

Student athletes can also base a Title IX claim on a school’s failure to provide equal opportunities for athletes of their gender. If females make up 60% of the student body, then ideally 60% of the spots on school sports teams should go to female athletes. Most schools fail to meet this standard, but they can also demonstrate that they are offering equal opportunities by showing how they are working to expand female athletic programs or that they are meeting levels of interest from the underrepresented gender. Showing that a school has failed to comply with all three measures can be a substantial burden.

A Title IX athletic claim could also be based on failure to provide equal benefits for athletes of both genders. Programs do not have to be identical to comply and athletes do not need to receive the exact same services, but they should get the same level of service, supplies, facilities and other resources. If a school can justify its reasoning for providing different services to teams of one gender, then the variation is permissible under current Title IX interpretations.

Standing to File a Lawsuit

Before a court will agree to hear a case, the judge must be satisfied that the person or people filing the claim have legal standing to bring the lawsuit. The law must allow a claim from an individual in this particular position.

One problem some student athletes have is that by the time their case gets to court, they have graduated. If their claim is designed to benefit current and future students, the former students lack legal standing to pursue the case. Title IX lawyers have managed this challenge in the past by adding new students to a group of plaintiffs so that the group includes current student athletes.

Claims of Discrimination Based on Gender Identity

The U.S. Department of Education has proposed new Title IX regulations that provide certain protections to students based on gender identity and sexual orientation. However, the proposed rules do not make any changes to current rules regarding eligibility for “male or female” athletic teams. The Department will address those issues in a separate rulemaking proceeding.

That means that any student athletes who want to force a school to allow them to participate on a particular team based on their gender identity will not have regulatory guidance to back up their demands, so the claim will be much more difficult to pursue. They might have more success with a claim seeking access to a preferred locker room, but even these claims would best be held until after the new rules become final later in the year.  

Harassment Standards are Likely to Change

While most people think of student athlete claims under Title IX as those involving inequality in opportunities for women athletes, these athletes can also bring a claim under Title IX if they are subjected to sexual harassment. The current standard for proving that a student is suffering from illegal sexual harassment requires a showing that unwelcomed conduct is severe, pervasive, and objectively offensive. This can be a difficult standard to meet.

The proposed new regulations return to the previous definition of sexual harassment. Students will only need to show that they were subjected to unwelcomed conduct that was either severe or pervasive. This will make it easier to seek relief for sexual harassment claims in the near future.

Students Need to Be Prepared for Potentially Awkward Situations

Because a lawsuit must involve some current or future students with standing, those students need to be ready to deal with some awkward moments on campus when they join a lawsuit against their school. Officially, the school is not allowed to retaliate in any way when students exercise their right to file a Title IX action. However, unofficial consequences can be harsh, including social exclusion from teammates and coaches and a general sense of unease due to fame on campus.

Students bringing a Title IX lawsuit also need to be clear about their goals. Depending on the amount of time it takes to resolve the case, they may not see any direct benefit during their student career. The potential to receive money through a Title IX inequality in athletics scholarship claim is untested, so pursuing a Title IX claim to obtain lost scholarship money may be a losing proposition. That said, student athletes suing their schools need to understand their goals and motivation to find satisfaction and the drive to succeed.

The Logistics of Bringing a Title IX Lawsuit Against a School

Once a student athlete believes they have grounds and standing to file a Title IX claim and they are ready to move forward, they have a few options.

Three Paths Forward

Students who object to their treatment in the school’s athletic programs generally have three theoretical options for seeking relief under Title IX. First, they can file a complaint through the school’s Title IX grievance process. While this might prove effective if a student is alleging harassment and school officials are willing to admit a problem in the athletic department, in most Title IX cases involving athletics, filing a complaint directly with the school will be of little or no help.

The second and more feasible option is to file a complaint with the Department of Education’s Office for Civil Rights (OCR), which bears responsibility for enforcing Title IX regulations. The complaint would be filed with the OCR enforcement office serving the state where the school is located, and it should be filed within six months of the discriminatory action. If the OCR investigates and finds a Title IX violation, the agency may try to negotiate a remedy, and if that fails, the agency may refer the case to the Department of Justice for enforcement or hold proceedings with an administrative law judge.

The third option is to file a private lawsuit in federal court. Student athletes may file a claim in court regardless of whether they have filed a complaint with the OCR.

Filing a Title IX Lawsuit

Federal court proceedings are very formal at every stage. Student athletes who want to file a claim in court should either have an experienced attorney prepare the complaints and file on their behalf or receive extensive assistance.  

Prior to meeting with an attorney, the student should have specific detailed information about alleged Title IX violations. It is important to collect copies of correspondence, communications with school officials, and other vital evidence. For instance, if a student met with an administrator to discuss facilities, opportunities, or financial aid, it is useful to memorialize the conversation in an email to that official. An attorney can investigate to uncover additional evidence, but it is important to give the attorney an understanding of what has happened and what may be available to back up violation claims.

Talk to an Attorney if You Believe You Have Grounds to File a Title IX Lawsuit Against Your School

After more than 50 years, lawyers who bring Title IX cases are still working to level the playing field for student athletes. While female athletes have enjoyed some benefits, equal opportunities are still an elusive dream for many. LGBTQIA+ athletes are still in the process of finding the right means to assert their rights in school settings.

The team at Duffy Law, LLC is committed to justice and ensuring equal opportunities through Title IX enforcement. For a confidential consultation to learn more about how we could help you reach your objectives, contact us now

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.