Since the passage of Title IX of the Educational Amendment Act of 1972, schools have worked to eliminate gender discrimination in educational programs. While the language in Title IX does not mention equity in athletics, the United States Department of Health, Education and Welfare (now the U.S. Department of Education) in 1979 issued a Policy Interpretation to provide additional guidance on what constitutes “equal opportunity” in intercollegiate athletics.
The document included a three-prong test to gauge compliance that courts still use today. The first prong, known as the proportionality test, examines whether intercollegiate participation opportunities for male and female students on any given campus are provided in numbers substantially proportionate to their respective enrollments. The second prong, known as the history of continuing program expansion test, examines whether the institution can show a history and continuing practice of program expansion for members of the underrepresented sex. The third prong, known as the interests and abilities test, examines whether it can be demonstrated that the interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated by present-day programming.
Although schools need to meet only one part of the three-prong test to satisfy Title IX’s requirements, the vast majority of cases use the proportionality test. This makes sense, because it has been 44 years since Title IX’s passage — schools should have come into compliance by now, and the history of expansion test should no longer apply. As for the third prong, the interests and abilities test, most figured that if a women’s club sport existed on campus with participants wishing to be elevated to varsity level, the school could not find safe harbor from a Title IX action using this prong. A recent example of how the courts apply the interests and abilities prong, and how one school’s proactive measures helped its defense, is Elizabeth Niblock and Ala Hassan v. University of Kentucky, 2026 U.S. App. LEXIS 1356 (6th Cir.).
Shifting demographics
Elizabeth Niblock, who competed on the varsity lacrosse team at Furman University before transferring to the University of Kentucky, sued Kentucky to try to create a varsity women’s lacrosse team on the Lexington campus. In addition, she filed a class action on behalf of all female students at the university who wanted increased sports opportunities. Niblock alleged that the university failed to provide substantially proportionate opportunities for women to play varsity sports in violation of Title IX. In particular, Niblock argued that the university needed to offer three additional women’s sports — equestrian, field hockey and lacrosse — to achieve Title IX compliance.
As a member of the Southeastern Conference, Kentucky sponsors 25 varsity teams — 13 women’s teams, 10 men’s teams and two co-ed teams. The university also offers men and women the opportunity to participate on non-scholarship club teams at a lower level of competition. Those teams include women’s equestrian, field hockey and lacrosse.
The district court noted that as recently as 13 years ago, women made up less than 38% of varsity student-athletes at Kentucky. By the 2022-23 academic year, women made up a slight majority of varsity athletes. The percentage of women in the university’s student body also grew during that period. In 2012-13, women made up about half of the student body, and by 2022-23 they made up 57.8%. That means that, despite the increased opportunities for female students to compete in varsity sports, Kentucky would have still failed the proportionality test because females still made up a smaller share of varsity team rosters than their share of the student body.
The district court also noted that the number of men’s and women’s varsity sports teams is not static. The university regularly reviews whether its student body has demand for — and can supply players to compete on — new sports teams. The university has a Sports Review Committee designed to “understand whether the interests and abilities of women at Kentucky are being met athletically.” The committee regularly reviews statistics and other information to determine whether to add more women’s varsity teams.
Annual sports intertest survey
As part of this review process, the university sends out a mandatory student survey each year to stay up to date on the sports its students want to participate in, as well as their ability to compete at the club or Division I level. To ensure full participation, all undergraduate students (other than seniors) must fill out the survey before registering for classes.
The survey asks students whether they have a “serious interest in competing in any” Division I sport regardless of whether the university currently offers it. If so, students may report any relevant credentials or experiences that would qualify them to compete in their chosen sport and disclose whether they were recruited by other Division I programs. The survey further asks students who meet the relevant talent and ability benchmarks if they would be willing to comply with regulations for athletes outlined by the UK athletics department, the SEC and the NCAA.
In recent years, the Sports Review Committee considered elevating some women’s club teams to varsity status. Committee members met with students on the field hockey club team in 2017 and with the equestrian team in 2023, neither of which had enough interested students to field a varsity team.
After a three-day bench trial, the district court agreed with Niblock that the university failed to provide “substantially proportionate” athletics spots for women. In addition, it agreed that the university failed to meet the history of expansion test. Even though the court found that the university failed two prongs of the test, it still found that Kentucky met the interests and abilities prong by meeting all the demands for varsity athletics spots made by female students who expressed an interest in — and the skills required for — competing at a Division I level. In particular, the court found that since there were not enough female students who wanted to and could compete at the varsity level in equestrian, field hockey or lacrosse, the university was not in violation of Title IX.
Squaring with the standard
Having lost at the district court level, Niblock appealed to the Sixth Circuit claiming that the district court erred in finding that the university met the interests and abilities prong since the district court’s approach did not square with the exacting standard that the interests and abilities test places on schools.
In reviewing whether Kentucky satisfied the interests and abilities prong, the Sixth Circuit held that the third prong states that a university satisfies Title IX when its athletics programs fully and effectively accommodate the athletic interests and abilities of both sexes.
In looking at whether Kentucky fully and effectively accommodated the athletic interests and abilities of both sexes, the court held that to overcome Kentucky’s safe harbor, Niblock needed to prove that sufficient numbers of individuals with interest and ability exist at the university to form teams to compete. The Sixth Circuit court agreed with the district court that Niblock had not carried that burden with respect to the three proposed sports teams: equestrian, field hockey and lacrosse.
The district court found that only one female student wanted to and could compete in equestrian, a team that requires approximately 40 members. Field hockey, which requires around 25 members, could muster only nine varsity-caliber students. As for lacrosse, Niblock acknowledged the team seemed very lackadaisical, its commitment was at a middle school level and only two athletes exhibited sufficient interest and ability to compete at the Division I level.
The Sixth Circuit found these numbers to be well short of those needed to field any of the three teams in question. The Sixth Circuit also found that the annual student survey failed to show that there was enough interest or ability by the university’s students to assemble a varsity team beyond the existing club team.
In conclusion, the Sixth Circuit held that equal sports opportunities are an essential and valuable component of higher education, and that the University of Kentucky had taken significant steps to ensure that it meets that standard, as shown by the addition of several women’s club and varsity sports teams over the past 29 years. However, the Sixth Circuit held that Title IX does not require schools to manufacture interest in a team or field teams unable to compete at a meaningful level, nor is it the role of the federal courts to make a university create varsity teams when the evidence fails to show that its student body currently can fill their ranks.
Three takeaways
Having found that the University of Kentucky satisfied Title IX’s requirements, what can school administrators and athletics directors learn from the Sixth Circuit’s decision in Niblock?
First, as both the district court and the Sixth Circuit found, schools only need to satisfy one of the three prongs to reach Title IX’s safe harbor. Therefore, even though the vast majority of Title IX cases involving athletics opportunities are decided on the proportionality test, Niblock makes it clear that the history of expansion test and the interests and abilities test can also provide schools a safe harbor in Title IX cases.
Second, and more important for future cases, the Sixth Circuit refused to reject the Department of Education’s regulations and guidance, including the three-prong test. In 2024, the United States Supreme Court in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority and must not defer to an agency interpretation of the law.
The University of Kentucky argued that the three-prong test was no longer entitled to deference and should be disregarded. The Sixth Circuit refused to consider the issue since it was found that the university was able to satisfy the third prong, which was sufficient to resolve the current case. However, the issue remains open and could have a significant impact on Title IX cases in the future.
Finally, Niblock shows the importance of schools routinely collecting and assessing information regarding student athletics interests and abilities. Kentucky was able to show, via the school’s annual survey assessment of the interests and abilities of its students, that women already attending Kentucky had neither the interest nor abilities to field a Division I team in three separate sports. Kentucky’s survey was clearly a significant factor in the Sixth Circuit’s decision in favor of the university.
