Title IX’s prohibition on sex discrimination in education; 20 USC § 1681(a); 45 CFR § 86.41(c); 34 CFR § 106.41(c); The district court’s finding that defendant could not form new Division I teams from the female students interested in & able to compete in the sports at issue; The three “safe harbors” for colleges & universities provided in the Department of Education’s interpretive guidance (1979 Policy Interpretation, 44 Fed. Reg. at 71,418); Exclusion of an expert witness; FRE 702

The court affirmed judgment for defendant-University of Kentucky in this Title IX case, holding that the University was protected under a “safe harbor” provision in the statute’s interpretive guidance because plaintiffs failed to show that there were sufficient numbers of female students interested and able to compete in the sports in question to form teams at the Division I level. Plaintiffs sued the University under Title IX for failing to provide Division I sports teams for women in equestrian, field hockey, and lacrosse. After a bench trial, the district court ruled that plaintiffs had failed to show that there was a sufficient number of students who wanted to and could compete in these sports at the Division I level. As an initial matter, the court considered “what to do about the rules promulgated under the statute and the interpretive guidance offered with respect to those rules.” While the University urged it to invalidate the guidance, the court determined that plaintiffs could not “satisfy the third prong of the interpretive guidance, as the district court correctly concluded,” and this sufficed to resolve the dispute in this case. This prong provides that “a university satisfies Title IX by providing athletics programs that ‘fully and effectively accommodate[]’ the athletic ‘interests and abilities’ of both sexes.” The court held that plaintiffs failed to overcome this “safe harbor” where they could not “prove that ‘sufficient numbers of individuals’ with ‘interest and ability’ exist at the University ‘to form teams to compete.’” It found that “the conditions of the existing equestrian, field hockey, and lacrosse club teams do not show that the University could ‘sustain a viable team’ for varsity competitions in these women’s sports.” As to the student surveys cited by plaintiffs, by themselves they could not “make up for the absence of evidence of individuals who want to play these varsity sports and have shown an ability to do so.” The court also rejected plaintiffs’ claim that the district court erred by excluding their expert’s testimony where the witness “acknowledged that Title IX survey design falls outside the ambit of her expertise.”