A recent case signals threat to protections for women in intercollegiate sports.
In its 2024 Loper Bright Enterprises v. Raimondo decision, the U.S. Supreme Court ruled that courts should not defer to an agency’s interpretation of an ambiguous statute that the agency administers. The decision overruled the “Chevron deference” doctrine established in in the Court’s 1984 decision in Chevron v. Natural Resources Defense Council. A recent decision by the U.S. Court of Appeals for the Sixth Circuit reveals the potential implications of Loper Bright for Title IX of the Education Amendments of 1972—which prohibits discrimination based on sex in educational programs that receive federal funding—in the intercollegiate athletics context.
Loper Bright marks a significant shift in how courts evaluate agency interpretations of ambiguous statutes. Although courts may consider agency interpretations, they must “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Courts must also respect the U.S. Congress’s delegation of discretionary policymaking authority but cannot defer to an agency interpretations of ambiguous statutes. Chief Justice John Roberts reasoned that courts, unlike agencies, are particularly equipped to understand ambiguous statutes. In a dissenting opinion, Justice Elena Kagan wrote that “in one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”
Justice Kagan was referring to the Chevron doctrine, overturned in Loper Bright, under which courts deferred to agency policy makers and experts, who have specific technical knowledge about a legal issue being examined. Now, complex interpretations of ambiguous statutes fall upon judges who may not have expertise on a given issue. Loper Bright ultimately shifts power from the executive branch to the judiciary.
In the past, one critique of deferring to agency interpretation was that interpretations would often change between administrations. For example, the Obama Administration interpreted Title IX regulations much differently than the Trump Administration. Although these interpretations are still likely to change across administrations, inconsistencies may additionally arise from differing judicial interpretations across lower federal appellate courts—for example one circuit of the court of appeals might interpret Title IX’s “on the basis of sex” to include sexual orientation while another circuit court may not. This could result in a patchwork of regulations of higher education, as Title IX policies could vary depending on the circuit in which a particular state sits.
Title IX passed quietly in 1972 with little expectation that it would drastically change athletics for women. Only one question during the congressional hearings on Title IX addressed athletics at all, inquiring if the law would require women on football teams. The answer was a resounding “no.” Immediately after Title IX’s passage, however, women working in physical education began using Title IX to campaign for inclusion and equal treatment in athletic opportunities at the K-12 and collegiate level. To clarify the reach of the law, in 1975 the Department of Health, Education, and Welfare—the precursor to the Department of Education—proposed regulations confirming that Title IX required equal participation, equitable financial aid distribution, and equitable treatment between men and women in all aspects of athletics.
Federal law offered Congress a 45-day period to pass a resolution rejecting, in whole or in part, these regulations. During this period of debate, various amendments and resolutions sought to limit Title IX’s application, including several that attempted to exempt revenue sports, denounce Title IX in its entirety, or disprove any application to athletics. Only one correction prevailed, which directed the regulations to account for the “reasonable provisions concerning the nature of particular sports.”
In 1979, the Education Department released a policy interpretation that would be used to determine whether schools were complying with the equal participation mandate of the 1975 regulations. This guidance, known as the three-part test, asks whether a school satisfies at least one of three prongs: first, whether varsity athletics participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; second, whether the institution can show a history and continuing practice of program expansion that is responsive to the developing interest and abilities of the members of any underrepresented sex; or finally, whether the institution can demonstrate that the interests and abilities of the members of any underrepresented sex have been fully and effectively accommodated by its present program.
The implementation of these regulations has successfully raised women’s share of college athletes from 15 percent in the 1971-72 academic year to 44 percent in the 2020-21 academic year. A 2024 report by the Government Accountability Office, however, reveals that women athletes participate in college athletics at rates 14 percent below their enrollment nationwide. This is not necessarily evidence of noncompliance under the three-part test, but it highlights disparities in participation opportunities.
In a recent case, the U.S. Court of Appeals for the Sixth Circuit had the opportunity to provide guidance on Title IX regulations under Loper Bright but avoided the issue.
In Niblock v. University of Kentucky, two students alleged that the University of Kentucky discriminated against women athletes. Using the three-part test, the plaintiffs argued that the university was not providing proportional opportunities (prong one), that it failed to show a history of continuing practice responsive to the interests of underrepresented students (prong two), and did not satisfy the interests and abilities of the women at the university (prong three). Rather than merely defend themselves using one of the three “safe harbors” of the test, the university argued that Loper Bright invalidated the three-part test altogether. The university appeared to contend that, with no Chevron deference, courts should independently interpret Title IX’s text and that such interpretation may not support the Education Department’s three-part test at all.
Both the federal district court and the Sixth Circuit sided with the university but concluded that it had accommodated the athletic abilities of its women students—prong three of the test—rather than holding the three-part test invalid.
The district court, in upholding the three-part test, relied on courts’ longstanding use of the test for interpreting ambiguous terms in Title IX, particularly in athletics. On appeal, the university again argued that the test was no longer valid in light of Loper Bright. In January 2026, the Sixth Circuit affirmed the district court’s decision. The Sixth Circuit acknowledged the university’s Loper Bright argument but declined to resolve this particular issue.
A concurring opinion, however, addressed the university’s Loper Bright-related arguments more directly. The concurrence recommended revisiting the Education Department’s 1979 policy interpretation and suggested that Title IX likely only prohibits “intentional discrimination.” Specifically, if Title IX is ultimately interpreted to prohibit only intentional discrimination, the legal foundation of the three-part test could be called into question, since the test measures participation disparities and accommodation of athletic interests rather than requiring proof of intentional discrimination. At odds with the district court’s analysis of Loper Bright, the concurrence suggested that precedent made with “outdated deference regimes” does not govern future decisions and questioned whether the Education Department in 2026 would defend the 1979 regulations at all. The concurrence suggested a willingness by some judges to rethink existing Title IX rules in light of Loper Bright even in athletics contexts, where settled rules have governed for decades.
The Loper Bright decision does not specifically create new Title IX law; the case will instead impact how courts view the various the Education Department’s interpretation of the law when examining Title IX challenges. Although overturning the Chevron doctrine certainly complicates an agency’s ability to regulate, schools are still required to follow federal regulations until they are overturned by a court, amended by Congress, or rescinded by the agency.
But the university’s arguments and the concurrence signal a potentially shifting Title IX regulatory environment as applied to athletics more generally. For example, as the National Collegiate Athletic Association continues to evolve in the era of name-image-likeness rights for student athletes, unresolved questions remain about whether benefits provided by schools related to a student’s name, image, or likeness may be classified as financial aid and subject to Title IX’s proportionality requirements. Federal regulators have not yet issued clear and binding rules governing this area. Indeed, absent uniform agency guidance, these emerging issues in college athletics are likely to be resolved inconsistently across jurisdictions, further entrenching a fragmented Title IX regime.
