Title IX: The Technical Knockout For Men's Non-Revenue Sports

Journal of Law and Education, Apr 2004 by Bentley, Eric

A. Failure of the Equal Protection Argument

Individuals, coaches, and clubs who have had their teams dropped from a public institution's athletic department have brought equal protection claims against the institution, but courts have been reluctant to accept the equal protection argument. For a valid equal protection claim, "a plaintiff must allege in the pleadings that the government intentionally discriminated against [them] by classifying him or her for different treatment under the law than one similarly situated."62 The government also must have made this classification such that it treated similarly situated individuals differently "on the basis of an impermissible characteristic, such as race, national origin, or gender."63 The equal protection claim boils down to a claim that the institution's decision to eliminate a men's team, but not a women's team was an illegal gender classification.64 As part of the plaintiff's equal protection claim, it must also be shown that either the government or a state actor was involved in making the alleged classification.65 In a situation where a men's team was dropped from a public institution, the public institution has been considered to be a state actor for equal protection purposes,66 however, private institutions that have dropped men's programs have not been considered state actors.67 Therefore, one requirement of an equal protection claim where the plaintiff is a participant on a men's team that was dropped, is that the team must have been part of a public institution's athletic department.

Because the classification that a public institution makes when it drops a men's team instead of a women's team is a gender classification, this classification is subject to an "intermediate standard of scrutiny" by the court.68 Under this "intermediate standard of scrutiny," the classification based on gender "must serve important governmental objectives and must be substantially related to achievement of those objectives," in order for the classification to be constitutional.69 Therefore, a public institution must prove that it had an important governmental objective for dropping a men's team instead of a women's team, and the institution must also prove that dropping its men's team instead of a women's team was substantially related to achieving its important governmental objective. If an institution's classification cannot survive this intermediate level of scrutiny, the plaintiff's equal protection claim will prevail, and the classification by the institution will be found to be unconstitutional.70

Equal protection arguments have not prevailed when a men's team has been dropped because the institutions have been able to pass the "intermediate standard of scrutiny" applied by the court.71 In Kelley v. Board of Trustees, where the members of the men's swimming team brought an equal protection claim because their sport was dropped the court ruled,

[a]lthough the University's decision to eliminate the men's swimming team rather than the women's swimming team classifies men for different treatment than women on the basis of gender, this action was taken in compliance with Title IX. Compliance with Title IX serves a remedial purpose which qualifies as an important state interest which is substantially related to eradicating historical discrimination against women in athletics at the University of Illinois. Accordingly, the Court finds that the Defendants have not violated the equal protection clause of the Fourteenth Amendment.72