[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Con. Res. 54 Introduced in House (IH)]

<DOC>






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.
                                 <all>