Judge Issues Critical Ruling in the University of Kentucky Title IX Athletics Case
(Editor’s note: The following excerpt was authored by Ellen J. Staurowsky, Ed.D., Professor, Sports Media, Roy H. Park School of Communications at Ithaca College. Ellen is also a senior writer for Hackney Publications and Editor-in-Chief of Title IX Alert. The article will appear in its complete form in Title IX Alert, which can be subscribed to for free at www.titleIXalert.com)
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.