## Facts

- The University of Illinois athletic department faced an approximately $600,000 budget deficit in early 1993.
- The University decided to eliminate four varsity programs effective July 1, 1993: men’s swimming, men’s fencing, and men’s and women’s diving.
- The University retained women’s swimming and acknowledged that cutting women’s swimming could increase Title IX risk given existing sex disparities in athletic participation.
- Criteria for the eliminations included program costs, competitive success, spectator interest, and Title IX compliance considerations.
- At the time, male athletes were overrepresented in varsity participation compared to their proportion of the undergraduate student body.
- Members of the men’s swimming team sued the Board of Trustees and university officials seeking damages and injunctive relief, alleging Title IX and Equal Protection violations.
- The district court treated defendants’ motion to dismiss as a motion for summary judgment, granted summary judgment for defendants, and denied a preliminary injunction as moot.
- The plaintiffs appealed.

## Issues

1. Whether eliminating men’s swimming while retaining women’s swimming, in part to improve sex proportionality in athletics, violated Title IX.
2. Whether using sex-conscious criteria in deciding which teams to cut denied male athletes equal protection under the Fourteenth Amendment.

## Decision

- The Seventh Circuit affirmed summary judgment for the University.
- The court held the elimination of men’s swimming did not violate Title IX because Title IX compliance is evaluated by the overall athletic program and the University’s approach was consistent with federal regulations and agency guidance.
- The court rejected the claim that Title IX required only expansion of women’s opportunities, holding that reducing opportunities for one sex may be permissible if the resulting program provides equal opportunity overall.
- Applying intermediate scrutiny, the court held the University’s limited sex-conscious decisionmaking served an important governmental objective (remedying sex disparities and complying with federal law) and was substantially related to that objective.
- Plaintiffs received no damages or injunctive relief.

## Legal Principles

- Title IX requires equal athletic opportunity overall; the legality of an athletics program is assessed program-wide rather than by the fate of any single team.
- Federal regulations permit sex-separate teams while requiring equal opportunity for both sexes across relevant factors (including selection of sports and levels of competition).
- Agency guidance recognizing “substantial proportionality” between enrollment and athletic participation may be used as a measure of effective accommodation of interests and abilities.
- Title IX does not categorically forbid reducing participation opportunities for one sex as a method of achieving overall compliance, particularly under resource constraints.
- Sex-based classifications by a public university are reviewed under intermediate scrutiny: they must further an important governmental objective and be substantially related to achieving it.
- A public institution may take limited sex-conscious steps to comply with a valid federal antidiscrimination statute where the measure addresses existing underrepresentation and does not impose an overall disadvantage on the historically overrepresented group.

## Conclusion

The Seventh Circuit held that the University could eliminate men’s swimming while retaining women’s swimming as part of a budget-driven plan aimed at improving Title IX compliance, and that the resulting sex-conscious decisionmaking satisfied equal protection because it was substantially related to the important objective of remedying sex disparities in athletic opportunity.


Kelley v. Bd. of Trs. of Univ. of Ill., 35 F.3d 265 (7th Cir. 1994)