By Ellen J. Staurowsky, Ed.D., Senior Contributor and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College
In a case involving a question of whether the University of Kentucky (UK) provided women athletes with equal access to varsity athletic opportunities compared to men athletes under Title IX of the Education Amendments of 1972, U.S. District Judge Karen Caldwell, of the Eastern District of Kentucky, ruled in favor of the University of Kentucky on October 28, 2024. According to Judge Caldwell, while UK did not offer proportional athletic opportunities for women athletes and has not had a history and continuing practice of expanding athletic opportunities for women athletes, the Plaintiffs were not able to prove that UK failed to effectively accommodate the interests and abilities of women athletes on the campus warranting expansion of the women’s athletic program.
Background
As articulated in a policy interpretation addressing Title IX’s application to athletic departments issued in 1979, the gender balance within varsity athletic opportunities sponsored by athletic departments is assessed using a three-part test with a provision that a school need meet only one part of the test to comply. The first part of the test, substantial proportionality, considers whether the proportion of athletic participation opportunities broken down by gender reflects the proportion of men and women within the undergraduate student population. In effect, if 50% of the undergraduate population is comprised of women and 50% of athletic opportunities are available to women, an athletic program meets the substantial proportionality standard. If a school offers women athletes disproportionally fewer athletic opportunities, the analysis turns to the second part, that being a history and continuing practice of program expansion. This effectively acknowledges that women athletes have disproportionally fewer opportunities, but the school can demonstrate that it has been working to remedy that gap by adding new women’s teams and continually updating its program. Failing that, a school then must explain in response to the third part of the test that it has fully and effectively accommodated the interests and abilities of women athletes on its campus.
The Plaintiffs in this case, Elizabeth Niblock and Ala Hassan, on behalf of themselves individually and others similarly situated, argued that UK was not in compliance with any part of the three-part test. During the bench trial, UK’s executive associate athletic director and legal counsel both conceded that the athletic program at Kentucky was not in compliance with the substantial proportionality standard. In point of fact, UK has always offered substantially fewer athletic opportunities to women than to men. Although the parties disputed what should be included in the analysis, with UK trying to reduce the proportionality gap by arguing that the sports of cheer, junior varsity soccer, and dance be included in the calculation, the shortfall in opportunities for women was still large and would have required adding, conservatively, 59 more opportunities for women athletes. Removing those three sports would have required as many as 116 additional opportunities for women athletes.
The University of Kentucky was unsuccessful in putting forward a record of actions to support a determination that it had a history and continuing practice of expanding opportunities for women athletes. Over the span of 10 years between 2012-2013 and 2022-2023, athletic opportunities for women fluctuated up and down. Further, at times when growth was recorded it was attributed to two things – the addition of women athletes to existing rosters and the decision to count women athletes in the sports of cheer and dance.
As noted in the ruling, counting junior varsity players was inappropriate because they do not have access to athletic scholarships, do not receive coaching from the head coach, and are not in a position to have a comparable experience compared to varsity athletes. Further, in the case of cheer and dance, Judge Caldwell noted that neither are sponsored by the NCAA; that cheer has failed to be recognized by the U.S. Department of Education; and that the Court could not find one case where cheer or dance were found to be recognized as varsity sports under Title IX. The Judge further considered the process UK used to add sports, noting inconsistencies in the deliberations done by UK’s Sports Review Committee (SRC), and the narrow way in which the Committee used survey information to determine developing interests and abilities among women athletes. The Judge took issue with the fact that the Committee relied solely on the number of students who included contact information in their responses rather than taking into consideration women athletes who reported that they had been recruited by other Division I institutions. In the case of the sport of equestrian, between 2019 and 2023 46 students expressed an interest with 28 of them having been recruited by a Division I program.
Having failed the first two parts of the test, the final consideration was whether UK was fully and effectively accommodating the interests and abilities of women athletes in a way that would warrant the addition of one or more sports. The Plaintiffs had sought consideration for at least one of three sports – equestrian, field hockey, or lacrosse – to be elevated to varsity status. The Plaintiffs were able to demonstrate that there was ample interest among women athletes on the UK campus in these sports based on the survey data. Between 2019 and 2023, women athletes expressing interest in equestrian (195 to 244); field hockey (44 to 72); and lacrosse (111 to 146).
However, when it came to proving that these women athletes could compete at a Division I varsity level, the finding went against the athletes for several reasons. First, while women athletes expressed their interest in these sports through the university’s administered survey, many failed to leave contact information. UK administrators claimed that in the absence of being able to contact the athletes they were unable to assess their ability to compete at a Division I level. The records of the existing women’s clubs in each of these sports were also used to undermine the Plaintiffs arguments. Judge Caldwell found that the Plaintiffs were tasked with demonstrating that the women athletes had “actual” interests and abilities to field a Division I varsity team, not a club team. As a result, they were not able to meet the standard of the third part of the test.
Conclusion
This ruling potentially puts women athletes in a difficult position to successfully argue that there is actual interest and ability to support a viable varsity team. The finding in favor of UK in this case ignores the structural impediments built into the club sport system that make it difficult to prove that women athletes in those circumstances can compete at the varsity level. It becomes a catch-22. There is no varsity option so interested women compete on the next best thing, a club team. However, when they seek varsity status, their club sport efforts are viewed as being diminished precisely because they are only competing on a club team. The circularity of that logic is problematic.
At a practical level, club teams do not have resources for recruiting, often club sport coaches are not full-time. Club teams are typically run by the athletes themselves, thus there is an additional burden of having to manage the team while competing and dealing with funding issues ordinarily handled by full time athletics administrators in a varsity program. There is also something about this finding in terms of UK being able to passively claim that the failure on the part of the women athletes responding to the survey to share contact information prevented administrators from assessing their credentials seems disingenuous. UK claimed that it took several measures to make sure that students responded to the survey, putting holds on the ability of students to register for classes and sending out reminders to academic advisors to encourage students to complete the survey. The very fact that UK used its email system to contact students and impose those holds demonstrates there was capacity to contact the women athletes who may not have listed their contact information.
As discouraging as the ruling was for the Plaintiffs, in the case of the sport of equestrian, there were some glimmers of hope. First, the club equestrian team had a record of competing favorably at the national level. And Judge Caldwell wrote, “…the survey numbers indicating significant interest and self-reported ability to compete at the varsity level in the sport should motivate the committee (Sports Review Committee) to research the viability of a varsity hunt seat equestrian team…and should include measures of interest and ability beyond the survey” (p. 30).
References
Black, R., & Berkowitz, S. (2024, October 28). U.S. District Court ruling finds University of Kentucky in compliance with Title IX. Courier Journal.
Niblock et al., v. University of Kentucky, Mitch Barnhart, and Eli Capilouto (2024). Findings of Fact and Conclusions of Law. United States District Court Eastern District of Kentucky Central Division Lexington. Civil Action No. 5:19-394-KKC.
