Title IX Athletics (Third Prong): “Interest and Ability” Must Be Demonstrated by Extant, Objective Evidence—Anonymous Self-Reports Alone Do Not Show a Viable Division I Team

1. Introduction

This Title IX athletics class action challenged the University of Kentucky’s decision not to sponsor three additional women’s Division I varsity teams—equestrian, field hockey, and lacrosse—beyond existing women’s club teams in those sports. Plaintiffs alleged that women remained underrepresented in varsity roster spots relative to their share of undergraduate enrollment and that Title IX therefore required additional varsity opportunities.

After a bench trial, the district court held that—even accepting the operative administrative framework commonly used in Title IX athletics participation cases—plaintiffs failed on the “interests and abilities” inquiry: they did not prove the University had enough women with both interest and ability to field viable Division I teams in the three requested sports. On appeal, the Sixth Circuit affirmed under clear-error review, emphasizing that largely anonymous survey responses and self-reported ability did not compel a finding of unmet Division I interest-and-ability sufficient to form teams.

The opinion also includes a separate concurrence (SUTTON, C.J., joined by MURPHY, J.) signaling serious doubts about the continuing validity of the 1979 Policy Interpretation and its “three-part test” in light of modern administrative-law doctrine (notably Loper Bright and Kisor) and Title IX’s text-focused, intent-centered reading.

2. Summary of the Opinion

The Sixth Circuit affirmed. It assumed, because plaintiffs accepted it and because the appeal could be resolved on narrow grounds, that the 1979 Policy Interpretation’s framework applied. The court focused on the third safe harbor: whether the University “fully and effectively accommodate[d]” the “interests and abilities” of the underrepresented sex.

Applying Sixth Circuit and other circuit precedent, the court held plaintiffs bore the burden to demonstrate “sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs” and, specifically, “sufficient numbers of individuals” with “interest and ability” to “form teams to compete.” The court treated the district court’s “interest and ability” determinations as fact findings reviewed for clear error, and found none.

On the evidence, the court concluded: (1) trial testimony identified too few women ready and willing to compete at Division I in the three sports; (2) club-team conditions and leadership testimony did not show a pipeline of Division I-ready athletes; and (3) the University’s annual survey, while probative of interest, did not establish Division I ability—particularly where few students provided contact information enabling verification and follow-up. The court also upheld exclusion of plaintiffs’ proposed expert under Rule 702 and Daubert because she conceded survey-design expertise was not her specialty.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

Standards of review and trial deference

• DAGS II, LLC v. Huntington Nat'l Bank (865 F.3d 384 (6th Cir. 2017)) supplied the baseline: factual findings are reviewed for clear error; legal conclusions de novo. This framing mattered because plaintiffs attempted to recharacterize the “team viability / sufficient interest and ability” determination as legal rather than factual.
• Pederson v. La. State Univ. (213 F.3d 858 (5th Cir. 2000)) was central to categorization: whether enough interest and ability exists to field a new team is a question of fact subject to clear-error review. The Sixth Circuit used Pederson to reject plaintiffs’ attempt to obtain fresh appellate reconsideration of the record.
• Balow v. Mich. State Univ. (24 F.4th 1051 (6th Cir. 2022)) reinforced the fact-intensive nature of participation-opportunity disputes (including roster/participation accounting) and informed the court’s recognition that “average team size” can bear on whether a proposed team is “viable.”

The Title IX athletics “three-part test” and the third-prong burden

• Horner ex rel. Horner v. Ky. High Sch. Athletic Ass'n (Horner I) (43 F.3d 265 (6th Cir. 1994)) was the key Sixth Circuit authority for third-prong doctrine: plaintiffs must show “sufficient interest and ability” not already met by existing programs, and must show “sufficient numbers of individuals to form teams to compete.” The panel repeatedly quoted Horner I to ground both the burden allocation and the “viable team” requirement.
• Horner ex rel. Horner v. Ky. High Sch. Athletic Ass'n (Horner II) (206 F.3d 685 (6th Cir. 2000)) appeared both in the majority (as a prior application of the framework) and in the concurrence (as part of the broader debate whether Title IX is limited to intentional discrimination and the disparate-impact tension).
• Cohen v. Brown Univ. (Cohen I) (991 F.2d 888 (1st Cir. 1993)) helped supply the “high but not absolute” nature of the third-prong safe harbor and underscored that the inquiry focuses on “levels of interest and ability extant in the student body.” The Sixth Circuit used Cohen I to rebut the idea that a mere “foundation” plus future recruiting suffices.
• Roberts v. Colo. State Bd. of Agric. (998 F.2d 824 (10th Cir. 1993)) supported the proposition that plaintiffs carry the burden to show unmet interest and ability.
• Portz v. St. Cloud State Univ. (16 F.4th 577 (8th Cir. 2021)) was cited alongside Cohen I and Horner I for the “high but not absolute” understanding of the third prong.
• Ollier v. Sweetwater Union High Sch. Dist. (768 F.3d 843 (9th Cir. 2014)) reinforced that interest/ability must be “extant” among current students, not hypothetical future interest.

Administrative-law backdrop (not decided, but positioned for future litigation)

• Loper Bright Enterprises v. Raimondo (144 S. Ct. 2244 (2024)) and Kisor v. Wilkie (588 U.S. 558 (2019)) are pivotal to the concurrence’s warning shot: modern doctrine no longer reflexively defers to agency statutory or regulatory interpretations. Although the majority declined to reach validity of the 1979 Policy Interpretation, the concurrence placed its continued force in doubt and invited reconsideration “in an appropriate case.”
• Pickens v. Hamilton-Ryker IT Sols., LLC (133 F.4th 575 (6th Cir. 2025)) is used in the concurrence to illustrate the Sixth Circuit’s post-Loper Bright approach: courts “independently interpret” statutes without delegation to agencies.

Title IX statutory construction and intent/disparate-impact fault line

• Gebser v. Lago Vista Indep. Sch. Dist. (524 U.S. 274 (1998)) framed Title IX as Spending Clause legislation, relevant to clear-notice and remedial constraints.
• Alexander v. Sandoval (532 U.S. 275 (2001)) anchored two themes: Title IX’s lineage from Title VI, and the inference that private actions generally target intentional discrimination rather than disparate impact. The concurrence leaned heavily on Sandoval to question whether a private right can enforce regulations/guidance beyond the statute’s own prohibitions.
• United States v. Virginia (518 U.S. 515 (1996)) was cited as a comparator for sex-equality principles should the case be analyzed through constitutional equal protection norms rather than agency guidance.
• Jackson v. Birmingham Bd. of Educ. (544 U.S. 167 (2005)) was invoked in the concurrence for the proposition that Title IX’s private right of action targets the statute’s prohibitions and is commonly tied to intentional discrimination.
• Doe v. BlueCross BlueShield of Tenn., Inc. (926 F.3d 235 (6th Cir. 2019)) appeared in the concurrence as additional support for the “intentional discrimination” reading in some Title IX contexts.

Evidence and expert testimony

• United States v. Sammons (55 F.4th 1062 (6th Cir. 2022)) supplied the abuse-of-discretion standard for evidentiary rulings, including expert exclusion.
• Daubert v. Merrell Dow Pharm., Inc. (509 U.S. 579 (1993)) supplied the gatekeeping framework applied to the proposed survey-methodology expert.

Concurrence’s additional cross-currents (not controlling, but influential)

• Univ. of Tex. Sw. Med. Ctr. v. Nassar (570 U.S. 338 (2013)) and Gross v. FBL Fin. Servs., Inc. (557 U.S. 167 (2009)) were used to explain “but-for” causation embedded in “on the basis of” language.
• EPA v. Calumet Shreveport Refining, L.L.C. (145 S. Ct. 1735 (2025)) was used for “core reason” language (suggesting potentially even more than but-for causation).
• Ricci v. DeStefano (557 U.S. 557 (2009)) (Scalia, J., concurring) was invoked to illustrate tensions created when legal regimes pressure decisionmakers to adjust outcomes by race/sex to satisfy proportionality targets.
• Miami Univ. Wrestling Club v. Miami Univ. (302 F.3d 608 (6th Cir. 2002)) and Neal v. Bd. of Trs. of Cal. State Univ. (198 F.3d 763 (9th Cir. 1999)) were cited as examples of how proportionality incentives can lead to cutting men’s teams—raising the concurrence’s concern about “reverse” sex discrimination risk.
• Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. (429 U.S. 252 (1977)) was used for the concept that outcome disparities may serve as evidence of intent (rather than liability per se).
• Brown v. Bd. of Educ. (347 U.S. 483 (1954)) appeared as an analogy to underscore the oddity (in strict anti-classification terms) of sex-segregated teams, contrasting with race segregation.
• O'Connor v. Bd. of Educ. of Sch. Dist. 23 (449 U.S. 1301 (1980)) (Stevens, J., in chambers) was cited to suggest some sex-separated athletic arrangements may be consistent with Title IX.
• Cannon v. Univ. of Chi. (441 U.S. 677 (1979)) was cited for the implied private right of action under Title IX, with the concurrence questioning whether that right reaches regulations/guidance as opposed to the statute itself.
• Medina v. Planned Parenthood S. Atl. (606 U.S. 357 (2025)) was cited for Spending Clause “clear notice” principles—an important constraint if liability is expanded via nonstatutory guidance.

3.2 Legal Reasoning

(a) A deliberately narrow holding: the court decides only the third prong

The majority acknowledged a “threshold question” about what to do with the 1979 Policy Interpretation after Loper Bright Enterprises v. Raimondo and Kisor v. Wilkie. Yet it declined to reach that issue because plaintiffs “accept the validity” of the guidance and because, even under it, plaintiffs could not prevail on the third prong. This narrowness is a classic judicial minimalism move: resolve the case on the ground that is (1) sufficient and (2) least disruptive to broader doctrine.

(b) The third-prong test as applied: “interest and ability” must support a team “to compete”

The operative standard, drawn from Horner I, required plaintiffs to prove (i) sufficient interest and ability among women, (ii) not already “slaked by existing programs,” and (iii) sufficient numbers to “form teams to compete.” The Sixth Circuit treated “to compete” as meaningful—implying Division I-ready athletes in adequate numbers, not aspirational interest that would require the school to “manufacture interest” or field noncompetitive rosters.

(c) Evidence hierarchy: objective indicators and demonstrated capacity matter

The court did not declare surveys irrelevant; it held that, on this record, the survey was a “snapshot” of self-reported interest/ability and could not substitute for evidence of demonstrated Division I capacity. Several doctrinal moves are embedded here:

• Interest vs. ability distinction: A factfinder may credit subjective interest (students can reliably report what they want) while requiring more objective corroboration of ability (because Division I competition turns on measurable athletic skill and compliance readiness).
• “Extant in the student body” requirement: The Sixth Circuit adopted Cohen I’s framing that the relevant capacity must exist among current students, not future recruits. That foreclosed plaintiffs’ theory that a mere “foundation upon which to build a varsity program” plus recruiting would satisfy liability.
• Operational feasibility: The survey’s contact-information feature mattered not as a categorical legal requirement, but as a practical evidentiary indicator. A university cannot verify or organize tryouts (or eligibility compliance) for interested students who do not identify themselves. The court treated refusal to share contact info as permissible grounds to discount the strength of “interest and ability” evidence.

(d) Factfinding and appellate posture: clear-error review did most of the work

Plaintiffs’ central appellate problem was the standard of review. By classifying “sufficient interest and ability to field a team” as fact, the court required plaintiffs to show not merely that the record could support their preferred finding, but that the district court’s contrary finding was clearly erroneous. The opinion repeatedly returned to the idea that trial courts weigh testimony, evaluate credibility, and synthesize mixed evidence (club-team conditions, recruitment indicators, survey responses, and roster-size needs).

(e) Expert exclusion: a straightforward Rule 702 application

The court affirmed exclusion of plaintiffs’ expert who sought to critique survey methodology. The witness conceded survey-design specialization was outside her expertise and that she relies on other “experts” in “survey design.” Under Rule 702 and Daubert, the district court was within its discretion to exclude testimony where qualifications did not match the technical critique offered.

3.3 Impact

Immediate, doctrinal impact within the Sixth Circuit

• Reinforced burden on plaintiffs under the third prong: Plaintiffs must show enough current students with both interest and objectively supportable Division I ability to form “teams to compete,” not merely to express demand for upgraded status.
• Survey evidence is not self-proving on “ability”: The decision signals that self-reported ability—especially when anonymous—may be treated as weak proof absent objective markers (recruitment, competitive credentials, club-team readiness, or other demonstrated skill evidence).
• Roster-size realities matter: The opinion treated typical roster size (e.g., ~40 for equestrian, ~25 for field hockey, ~34 for lacrosse) as integral to “viability,” anchoring the “numbers” requirement in concrete team-building constraints rather than abstract proportionality gaps.

Strategic impact on Title IX athletics litigation

• Evidence development will likely shift toward verification: Plaintiffs will have incentives to gather named declarations, recruiting records, competitive histories, coach evaluations, and tryout-style assessments rather than rely heavily on anonymous surveys.
• Universities may formalize documentation: Schools may view this opinion as validating systematic interest/ability tracking (including objective follow-ups), and as permitting discounting of unverifiable interest.

Longer-term doctrinal pressure: the concurrence’s invitation

Although not controlling, the concurrence is consequential. It places the Sixth Circuit on notice that the 1979 Policy Interpretation may be vulnerable in future cases after Loper Bright Enters. v. Raimondo and Kisor v. Wilkie, and it highlights potential statutory conflicts (Title IX as intent-based, anti-quota, Spending Clause statute; private right limits under Alexander v. Sandoval). Litigants defending universities may use this concurrence to tee up direct challenges to the guidance’s validity and to the availability of private enforcement of regulation-only theories.

4. Complex Concepts Simplified

• “Three-part test” / “safe harbors” (1979 Policy Interpretation): An agency document that describes three ways a school can show it is providing nondiscriminatory athletic participation opportunities: (1) proportionality, (2) expansion history, or (3) full accommodation of interest and ability. In this case, only the third was dispositive.
• Third prong (“full and effective accommodation”): A school is compliant if it is already meeting the underrepresented sex’s actual interest and Division I-level ability. Plaintiffs must show there is still unmet interest-and-ability sufficient to field a real team.
• “Extant in the student body”: The relevant athletes must already be at the school (current students), not hypothetical future recruits who might be attracted if the sport becomes varsity.
• Clear-error review: An appellate court will not reweigh evidence. It will reverse factual findings only if left with a firm conviction a mistake was made. If the trial judge’s view of the evidence is plausible, it stands.
• Loper Bright and the end of Chevron deference: Courts no longer defer to agencies’ reasonable interpretations of ambiguous statutes as a default. Courts interpret statutes independently.
• Kisor and narrowed Auer deference: Courts defer to an agency’s interpretation of its own regulation only under strict conditions, typically after finding genuine ambiguity and other prerequisites.
• Implied private right of action vs. enforcing regulations/guidance: The concurrence suggests a private lawsuit under Title IX may reach only what the statute itself forbids (often framed as intentional discrimination), not additional obligations created solely by regulations or guidance—an argument inspired by Alexander v. Sandoval.

5. Conclusion

Elizabeth Niblock v. Univ. of Ky. reinforces a practical, evidence-centered application of Title IX’s third-prong athletics framework in the Sixth Circuit: plaintiffs must prove that enough current students have both the interest and demonstrable Division I ability to field viable teams “to compete,” and anonymous or self-reported survey responses—without objective corroboration or identifiable follow-up—may be insufficient to meet that burden. The decision also underscores the deference appellate courts give to trial-level factfinding in these disputes.

At the same time, the concurrence signals a major doctrinal fault line for future cases: whether the 1979 Policy Interpretation (and perhaps regulation-driven disparate-impact-style theories) can persist after modern administrative-law developments and a text-based reading of Title IX that emphasizes intentional discrimination and statutory anti-quota language. The majority avoided that confrontation here, but the opinion positions the Sixth Circuit for it in the next appropriately presented case.