[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Con. Res. 54 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. CON. RES. 54
Expressing the sense of Congress that title IX of the Education
Amendments of 1972 applies to the National Collegiate Athletics
Association (NCAA), and the National Collegiate Athletics Association
(NCAA) should work to prevent discrimination on the basis of sex in its
programs and activities.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 23, 2023
Ms. Sherrill submitted the following concurrent resolution; which was
referred to the Committee on Education and the Workforce
_______________________________________________________________________
CONCURRENT RESOLUTION
Expressing the sense of Congress that title IX of the Education
Amendments of 1972 applies to the National Collegiate Athletics
Association (NCAA), and the National Collegiate Athletics Association
(NCAA) should work to prevent discrimination on the basis of sex in its
programs and activities.
Whereas title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)
prohibits sex discrimination in all educational programs and activities
that receive Federal assistance, including athletics programs;
Whereas title IX was intended to avoid the use of Federal resources to support
discriminatory practices and to provide individuals effective protection
against such practices;
Whereas title IX does not, on its face, confine the list of those liable under
the statute to ``recipients'' of Federal funds, but simply prohibits
discrimination ``under any education program or activity receiving
Federal financial assistance'';
Whereas, in the applicable implementing regulations for the Department of
Education, the Department of Education requires educational programs to
offer students of all sexes equal opportunities to play sports, to
allocate athletic scholarships equitably, and to treat athletes of all
sexes equally with respect to other benefits and services. (Benefits and
services include equipment and supplies, scheduling of games and
practice times, travel and daily allowance, locker rooms, practice and
competitive facilities, medical and training facilities and services,
housing and dining facilities and services, publicity and promotions,
support services, and recruitment of student athletes.);
Whereas the section 908 of the Education Amendments of 1972 (20 U.S.C. 1687)
broadly defines a ``program or activity'' that receives Federal funds to
mean all of the operations of a list of entities, including colleges and
universities, private organizations principally engaged in education,
and any other entity established by 2 or more of the listed entities--or
what Congress termed the ``catch-all'' provision;
Whereas, in interpreting title IX, Federal courts have correctly held that any
entity that exercises controlling authority over a federally funded
program is subject to title IX, regardless of whether that entity is
itself a recipient of Federal aid;
Whereas Federal courts have held that State athletic associations exercise
controlling authority over interscholastic athletics programs and are
therefore subject to title IX (Among other things, State athletic
associations set sports seasons, sponsor State championship tournaments,
and set eligibility requirements for student participation in sports.
Their membership is comprised primarily of educational institutions that
receive Federal funds and must comply with title IX. In order for State
athletic associations to control and regulate athletics, member
institutions must cede their own ability to control many aspects of
their athletics programs to the athletic association.);
Whereas Federal courts have correctly reasoned that not subjecting athletic
associations to title IX would encourage Federal recipients to empower
someone else to promulgate discriminatory policies to avoid title IX
liability. Such an interpretation would allow Federal funds to promote
sex discrimination and would therefore run afoul of the plain language,
meaning, and purpose of title IX;
Whereas, like State athletic associations, the NCAA exercises controlling
authority over its federally funded member institutions' athletics
programs;
Whereas the NCAA is subject to title IX because, pursuant to section 908 of such
Act, it is an organization established by two or more colleges or
universities that receive Federal funds;
Whereas the NCAA is subject to title IX because, pursuant to section 908 of such
Act, it is an operation of its federally funded member schools;
Whereas, while the Supreme Court ruled in NCAA v. Smith, 525 US 459 (1999), that
the NCAA is not subject to title IX by virtue of the dues it receives
from its federally funded member schools, the Supreme Court left open
the question of whether the NCAA is subject to title IX on alternative
grounds, including based on its controlling authority over member
schools' federally funded athletics programs or pursuant to the
definition of ``program or activity'' in section 908 of such Act;
Whereas the NCAA is an unincorporated association of approximately 1,200
members, including virtually all public and private universities and 4-
year colleges conducting major athletics programs in the United States.
Members of the NCAA that receive Federal funds are subject to title IX;
Whereas member schools cede control to the NCAA by allowing it to host 90
intercollegiate championship tournaments in 24 sports across 3 divisions
(During championship tournaments, the NCAA controls the medical,
training, housing, dining, and competition facilities, and dictates the
tournament schedule and the publicity and promotion of the teams.);
Whereas, because the NCAA is subject to title IX, it must address documented
discrimination against women's teams in the benefits and services
provided during championship tournaments so that student athletes who
experience sex discrimination during the regular season who are able to
seek remedies under title IX have the same remedies when they experience
inequitable access to benefits or services during intercollegiate
championship tournaments and other barriers to exercising their rights;
Whereas, despite being subject to title IX, the NCAA provided inequitable
benefits and services to women's basketball teams in its 2021 Division I
Tournaments, including inferior publicity, promotions, equipment,
supplies, food, facilities, travel accommodations, and health care
protocols and resources;
Whereas these disparities are contrary to the letter and spirit of title IX,
undermine efforts to ensure gender equity in sports and society writ
large, and hold women and girls back from reaching their full potential;
Whereas, on March 25, 2021, the NCAA announced the commissioning of a
comprehensive review of gender equity issues in NCAA sports that was
completed by the independent law firm Kaplan Hecker & Fink (Kaplan), and
the results of their independent review were released in two separate
reports on August 2, 2021, and October 25, 2021, which found that gender
inequities at the NCAA stem from the structure and systems of the NCAA
itself and provided an extensive list of recommended actions the NCAA
should take to address these inequities;
Whereas more than a year after the release of those reports, the NCAA has made
progress on some of Kaplan's recommendations, but has either not yet
begun consideration or declined to implement others, including
restructuring NCAA leadership so that the Vice President of Women's
Basketball reports directly to the President; and
Whereas the NCAA leadership should make it a top priority to expeditiously and
thoroughly consider all recommendations from the Kaplan report to ensure
meaningful change: Now, therefore, be it
Resolved by the House of Representatives (the Senate concurring),
That it is the sense of Congress that the National Collegiate Athletics
Association (NCAA) is subject to title IX of the Education Amendments
of 1972 (20 U.S.C. 1681 et seq.) and should work to prevent
discrimination on the basis of sex in its programs and activities.
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