Is The OSAA Subject To Title IX? Supreme Court Precedent Says No

I had a question posed to me by a parent that fueled a discovery and verification of a very good question: Does the OSAA have to abide by Title IX laws? Well, the quick answer is no. However, I truly wanted to discover why that is and how the OSAA can take monies from school districts that benefit from federal assistance, yet don’t have to play by the same rules as a tax-exempt organization. So, I asked the same question about another organization similarly structured to the OSAA: The NCAA, the governing body of major collegiate athletics in the United States. This opened up the opportunity to read from the Supreme Court of the United States about what the answer is, and the reasoning handed out would be directly applicable to the OSAA.

The Triggering Lawsuit

Back in 1999, the NCAA found themselves before the Supreme Court after a lawsuit was filed by a female athlete from St. Bonaventure University. The athlete had graduated from St. Bonaventure in two years, transferring to Hostfra and Pittsburgh University to enroll in postgraduate programs, while also seeking to play volleyball at those schools. However, NCAA denied her eligibility on the basis of a Postbaccalaureate Bylaw, which allows a postgraduate student-athlete to participate in intercollegiate athletics only at the institution that awarded her undergraduate degree. In other words, their Bylaws restricted her to only playing for St. Bonaventure.

The volleyball player filed suit against the NCAA, alleging that among other things, that the organization was in violation of federal Title IX law that proscribes sex discrimination in “any education program or activity receiving Federal financial assistance.” The athlete argued that the NCAA governs the federally funded intercollegiate athletics programs of its members, that these programs are educational, and that the NCAA benefited economically from its members’ receipt of federal funds. The District Court dismissed the lawsuit, saying that, “alleged connections between the NCAA and federal financial assistance to member institutions were too attenuated to sustain a Title IX claim.” In a reversal on appeal, the Third Circuit held that the NCAA’s receipt of dues from federally funded member institutions would suffice to bring the NCAA within the scope of Title IX.

Supreme Court Decision National Collegiate Athletic Association v. Smith

In a unanimous decision delivered by late Justice Ruth Bader Ginsburg, the Supreme Court held that receiving dues payments from recipients of federal funds do not suffice to subject the NCAA to suit under Title IX. However, they did clarify that if any part of the NCAA received federal financial assistance, all NCAA operations would be subject to Title IX. The Supreme Court then laid out another significant decision that lay in line of the logic presented in this case:

  • Department of Transp. v. Paralyzed Veterans of America

The Supreme Court held that the Rehabilitation Act of 1973, which prohibits discrimination based on disability, does not apply to commercial airlines via the Government’s program of financial assistance to airports. The Court concluded that the Act covers those who receive the aid, not those who simply benefit from it.

Title IX defines “recipient” to include any entity “to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance.” The first part makes it clear that Title IX coverage is not triggered when an entity merely benefits from federal funding, which in this case is through the dues paid by the member schools.

How It Applies To The OSAA

The OSAA is similarly structured to that of the NCAA: A non-profit organization that governs high school athletics in Oregon. The OSAA lays out their three pillars of revenue generation: Interscholastic championship events, membership fees, and corporate sponsorship. None of these things involve direct financial assistance from the federal government, thus Title IX isn’t applicable to the OSAA in the same fashion in which the NCAA is also exempt.

Further, the grants that are awarded by the OSAA Foundation do not subject the OSAA to Title IX laws, as they are funded through methods that don’t directly involve the receipt of federal assistance. We can freely debate whether the OSAA provides equitable opportunities, equal treatment, and other things to female athletes, just like we do to the NCAA on a regular basis. However, if we were to ever pursue changes on the perception of sex discrimination, it wouldn’t be able to be done through federal enforcement of Title IX laws.

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