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Student-Athletes’ Title IX Claims

A court’s analysis will also depend on whether the plaintiff is a disgruntled student-athlete or a disgruntled employee. For disgruntled student-athletes, Title IX does not compel federally funded educational institutions to sponsor one program for each gender in every sport the institution sponsors. However, if a school sponsors only one program for a sport, then that school must allow members of both sexes to try out for the team, unless the sport is a contact sport, in which case the school may limit participation to one gender. Conversely, if a school sponsors only one program for a contact sport and then allows members of both sexes to compete for the team, the school may not exclude an athlete from the team on account of his or her gender. “Contact” sports include boxing, wrestling, rugby, ice hockey, football, and basketball. 45 C.F.R. § 86.41.

Disgruntled students may also allege that they have been victims of sexual harassment in violation of Title IX. Sexual harassment typically consists of receiving unwanted sexually oriented comments, receiving unwanted sexually oriented physical contact, or working in a sexually charged environment. The threshold of liability is higher for sexual harassment than it is for sex discrimination. To prevail on a Title IX sexual harassment claim, a plaintiff must show that the institution was aware of the harassment, exercised control over both the harassed and the environment in which the harassment occurred, and that harassment was serious enough to have the systemic effect of denying the victim equal access to participate in an athletic program. Mere name-calling or teasing will not give rise to a Title IX harassment claim, even when the offensive comments single out differences in gender.

Courts are more inclined to find that offensive comments give rise to Title IX liability when they are made by a coach or a person acting in an official capacity for the academic institution. Plaintiffs are less likely to prevail when the offensive behavior takes the form of student-on-student or athlete-on-athlete harassment. In such instances, the plaintiff must not only prove that the academic institution was aware of the harassment and had authority to stop the harassment, but also that the harassment was “so severe, pervasive, and objectively offensive” that it amounted to “deliberate indifference” by the institution in failing to stop it. Davis Next Friend LaShonda D. v. Monroe County Board of Education (U.S. 1999). Thus, sexual harassment by fans, athletes, or coaches from opposing schools is generally not actionable.

Inside Student-Athletes’ Title IX Claims