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Discrimination in College: Title IX, At 40, Levels The Playing Field For Student-Employees As Well As Athletes

Students who played athletics in college within the last 40 years have some experience of the impact of Title IX on college athletics.  By all accounts, as far as reducing gender discrimination in college athletics, Title IX has been a resounding success since its early days when women’s athletics were underfunded, women coaches were paid far less than women, and those women who eventually turned pro were paid far less.  Not only do we have Title IX to thank for these changes, but also the pioneering women in athletics – particularly the coaches – who took on college administrators in their fight for more resources for women’s programs.  Nobody is a better example of this leadership than Pat Summitt, the most successful college coach in the history of sports and the head basketball coach for the University of Tennessee for the last 40 years.  When she started, at the time of passage of Title IX but well before its impact was felt, Coach Summitt earned $250 a month as coach at Tennessee, washed the team uniforms, and drove the team bus while male counterparts coaching in comparable college programs were paid handsomely and fully staffed with assistant coaches, trainers, undergraduate assistants, and facilities mangers.

The vividness of this contrast – the most talented coach in the history of college sports *period* having to do the jobs of 4 people while male coaches were given the red carpet – really drives home the importance of Title IX and the message a more level playing field sends to young women.  I was lucky enough to play college football  and watched as our program shrank, and heard the griping of my coach and certain players about perceived injustice with Title IX.  But Title IX has and always will be a win-win for those embraced it as such, and the modern history of my own alma mata suggests the same.

Strangely, Title IX has not made as much progress in defeating gender discrimination elsewhere on campus, as it was designed to do.  Many lawyers have argued, with limited success, that Title IX confers a private right of action for other types of discrimination on campus, including employment discrimination, on the basis of gender by educational institutions receiving federal funds.  Thus far, only the federal First and Fourth Circuits have recognized such a private action, but the tide appears to be turning, thanks to the new Title IX pioneers – student employees.  I was fortunate enough to assist in representing student employee Lauren Summa when she brought her seminal lawsuit Summa v.  Hofstra University against Hofstra University for employment discrimination.  After the trial court dismissed her case, the Second Circuit reinstated her Title VII employment-related retaliation claims, but punted on the question of a private right of action under Title IX.

As every other leader in Title IX’s gender equity battle can tell you, progress is incremental.  Notably, the Second Circuit dropped a footnote in its decision and, in dicta, indicated a future willingness to support a private right of action for employment discrimination on college campuses.  For now, Title VII confers protection from discrimination to student employees under many circumstances, as it did for Ms. Summa.  Still, acknowledging Title IX’s private right of action would provide a powerful tool for student employees on campus.  Hopefully, leaders like Lauren Summa will some day reach the top of the mountain and prevail on others the importance of Title IX’s private right of action.  We’ll call it the Summitt.



Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.