Attorney General Paxton has joined an Ohio-led cert-stage amicus brief in the U.S. Supreme Court, pushing back against the wrongly-decided Title IX ruling from the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit. The decision from the Sixth Circuit would transform long understood and respected requirements under Title IX into implausibly high standards that threaten both male and female collegiate athletics.  

Title IX requires colleges and universities to strive for equality between sexes in their athletic departments. Along with this requirement, there has been a judicially recognized possibility that perfect equality may not practicably be achievable. Take, for example, a situation where 53% of students at a college are female but only 51% of the student athletes are female. The courts have long recognized that, in such a situation, a participation gap of 2% is a safe harbor for colleges and does not violate Title IX.  

But the recent decision by the Sixth Circuit in Michigan State University, et al. v. Sophia Balow, et al. has removed that safe harbor and would hold colleges and universities liable for any situation where a participation gap exists. Factors largely out of their control—enrollment percentages, unexpectedly high dropout rates, differing levels of student athlete participation, a global pandemic—could spell disaster for athletic programs when the margin of error is zero.  

“The Sixth Circuit’s ruling . . . transforms Title IX’s equal-opportunity guarantee into something approximating an almost-impossible-to-satisfy guarantee of equal outcomes. Laws that cannot command compliance will not command respect. And laws that command no respect are not likely to retain their vigor,” the brief states.  

To read the full brief, click here.