A New Approach to Title IX Athletic Compliance?

Berndsen v. North Dakota University System, No. 19-2517 (8th Cir. 2021)

By Alisha Carter Harris, M.S., Consultant, TNG Consulting

Historically, colleges and universities have complied with Title IX in athletic programs by using the “Three-Part Test,” which has been heavily interpreted by the Department of Education’s Office for Civil Rights and case law. The plaintiffs/appellants in Berndsen v. North Dakota University argued that schools have Title IX compliance requirements outside the Three-Part Test with respect to single-sex contact sports. Title IX practitioners should monitor this case, as it may expand Title IX athletic compliance beyond the Three-Part Test.

PROCEDURAL HISTORY:

Breanna Berndsen (“Berndsen”), et al. filed suit against the North Dakota University System (“the System”), alleging the System violated Title IX when it eliminated the women’s ice hockey program but not the men’s.^[1] The U.S. District Court for the District of North Dakota (“District Court”) granted the System’s motion to dismiss for failure to state a claim. Berndsen appealed to the U.S. Court of Appeals for the Eighth Circuit (“the Court”) which reversed and remanded the case to the District Court for further consideration.

SUMMARY OF FACTS:

• The System established the women’s ice hockey team seventy-three years after the men’s hockey team. Prior to its elimination, the women’s ice hockey team ranked sixth nationally, was the most “prominent and popular” sport on campus for women, and at one point had eight Olympians on the team. Women’s ice hockey athletes competed against seven other teams in the “strongest and most competitive women’s ice hockey league in the country” at the “most competitive” collegiate level (National Collegiate Athletic Association Division I).^[2]

RELEVANT HISTORY OF TITLE IX ATHLETIC COMPLIANCE:

• In 1975, the Department of Health, Education, and Welfare’s Office for Civil Rights (OCR) published a Title IX regulation that required institutions sponsoring athletic programs to provide equal athletic opportunities for students by accommodating both sexes’ athletic interests and abilities.^[3]

• In 1979, OCR issued a final policy interpretation that focused institutional obligations on providing equity in sport by outlining the factors to be considered in assessing compliance. Title IX of the Education Amendments of 1972: A Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979), (“1979 Interpretation”) provided, in part, an explanation of the agency’s approach to determining compliance in athletics (including the Three-Part Test).^[4]

• In 1996, OCR published a Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Testthat confirmed institutions need to comply with only one part of the Three-Part Test to provide nondiscriminatory participation opportunities for individuals of both sexes [emphasis added].^[5] This clarification was followed by additional guidance in 2003 and 2010 (which rescinded a 2005 clarification) with the publication of the Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance: The Three Part Test and the Intercollegiate Athletics Policy Clarification: The Three-Part Test – Part Three, respectively.

FINDINGS AND SIGNIFICANT ISSUES:

• The Court found that (1) appellants’ legal theory clashed with the District Court’s understanding of how a Title IX claim should be pled and (2) the District Court’s analysis was flawed because it only focused on the Three-Part Test and not the entire 1979 Interpretation [emphasis added].

• More specifically, the Court found the District Court erred in its analysis of the 1979 Interpretation by improperly relying on the Three-Part Test as the only way to analyze a claim [emphasis added]. Because OCR provided differentways to comply with complianceobligations, the Court gave controlling deference to the entire 1979 Interpretation, not just the Three-Part Test.^[6] The Court held (1) that none of OCR’s subsequent clarifications (1996, 2003, or 2010) have addressed any part of the 1979 Interpretation beyond the Three-Part Test and (2) that this appeal argued compliance issues of single-sex contact sports (or separate teams), which is covered by a different section from the one that governs the Three-Part Test.^[7]

• In its holding, the Court cited Mercer v. Duke University, 190 F.3d 643 (4^th Cir. 1999), which concluded that the plain text of the 1979 Interpretation requires institutions to operate single-sex contact sports equally and Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir. 2002), which held that OCR’s 1979 Interpretation deserves controlling deference. Relevant to this case, the 1979 Interpretation requires that institutions sponsor separate teams if both of the following conditions are met: (1) opportunities for members of the excluded sex have historically been limited and (2) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.^[8]

• Based on this analysis, the Court held the District Court erred by disregarding the plain text of the 1979 Interpretation. In its opinion, the Court concluded, “[N]o set of facts could have convinced the district court to give the athletes a second look. But given a level playing field, or in the case, a properly smoothed ice rink, the athletes may be able to state an actionable Title IX claim.”^[9] The Court remanded the case to the District Court for further consideration.

• There were two separate concurring opinions filed in the Berndsen decision that opined that OCR has created a precarious situation for institutions which sponsor athletic programs to comply with Title IX. The first reasoned, “the agency’s repeated efforts at clarity in this case have only given way to a fine mess. . .we are now swimming in a sea of deference. . .we have to read the policy interpretation as a whole, not just zero in on one part of it. . .We can only assume, in other words, the agency did not go to the trouble of constructing a ten-page document only to have a few lines of it – those devoted to the three-part test – mean anything.”^[10] The second explained, “This 1979 separate teams mandate has largely disappeared from public view since it was issued. . . By contrast, the Department repeatedly has addressed how an institution may comply with obligations under Title IX by meeting the Department’s three-part test. . .The regulation is not clear enough to say that the separate teams mandate is invalid, and the record is not developed enough to conclude that the Department has abandoned the separate teams mandate as a matter of regulatory interpretation. . .the failure of the plaintiffs to plead a shortcoming by the University under the three-part test or on quality of competitive opportunities is insufficient reason. . .to dismiss the complaint.”^[11]

KEY TAKE-AWAYS:

• If Berndsen’s Title IX claim prevails when the District Court ultimately applies the Eighth Circuit’s analysis of the 1979 Interpretation, it could change the landscape of Title IX collegiate athletic compliance. The District Court’s decision could require schools to comply with the entire 1979 Interpretation, not just the Three-Part Test, which has become industry standard for athletic compliance with Title IX [emphasis added].
• It is important to note in the most recent OCR publication regarding Title IX athletic compliance, Intercollegiate Athletics Policy Clarification: The Three-Part Test – Part Three, OCR responded to the question, “What is the three-part test” by stating, “The Department’s 1979 ‘Intercollegiate Athletics Policy Interpretation’. . . sets out a three-part test that OCR uses as part of determining whether an institution is meeting its Title IX obligations.” [emphasis added]^[12] Berndsen’s case could require schools to reacquaint themselves with the entire 1979 Interpretation and adjust their compliance efforts accordingly.
• More specifically, when eliminating single-sex teams, schools may need to comply with the Selection of Sports section of the 1979 Interpretation, which provides, “[I]f an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: (1) opportunities for members of the excluded sex have historically been limited and (2) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.”^[13]
• Lastly, as an overarching best practice, institutions should always conduct a risk analysis to review any potential harm the elimination of an athletic team may cause. As with the case of Berndsen, institutions may become embroiled in years-long costly litigation and find themselves portrayed negatively in the press—damage that cannot be quantified monetarily.

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[1] Berndsen v. North Dakota University System, 395 F. Supp.3d 1194 (2019).

[2] Berndsen v. North Dakota University System, No. 19-2517 (8th Cir. 2021).

[3] The Department of Health, Education, and Welfare has since split into two departments, the Department of Education and the Department of Health and Human Services. References to “OCR” in this article means the Department of Education (ED) and ED’s Office for Civil Rights.

[4] U.S. Department of Education. Title IX 1979 Policy Interpretation on Intercollegiate Athletics (1979), available at: https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html.

[5] U.S. Department of Education. Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996), available at: https://www2.ed.gov/about/offices/list/ocr/docs/clarific.html#two. 

[6] The Department of Education’s Office for Civil Rights’ Three-Part Test provides that institutions comply with Title IX if they meet any one of the following parts of the test: (1) the number of male and female athletes is substantially proportionate to their respective enrollments; (2) the institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or (3) the institution is fully and effectively accommodating the interests and abilities of the underrepresented sex.

[7] The Three-Part Test is outlined in Levels of Competition while Single-Sex Contact Sports is outlined in Selection of Sports. U.S. Department of Education. Title IX 1979 Policy Interpretation on Intercollegiate Athletics (1979), available at: https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html.

[8] Berndsen v. North Dakota University System, No. 19-2517 (8th Cir. 2021).

[9] Id.

[10] Id.

[11] Id.

[12] U.S. Department of Education. 2010. Intercollegiate Athletics Policy: Three-Part Test — Part Three Q’s & A’s. Available at: https://www2.ed.gov/about/offices/list/ocr/docs/title9-qa-20100420.html. 

[13] U.S. Department of Education. Title IX 1979 Policy Interpretation on Intercollegiate Athletics (1979), available at: https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html.