Elizabeth Niblock, individually v. University of Kentucky

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0015p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELIZABETH NIBLOCK, individually and on behalf of all
similarly situated; ALA HASSAN, Class Representative,
Plaintiffs-Appellants,
v.
UNIVERSITY OF KENTUCKY,
Defendant-Appellee.
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No. 24-6060
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:19-cv-00394—Karen K. Caldwell, District Judge.
Argued: December 10, 2025
Decided and Filed: January 20, 2026
Before: SUTTON, Chief Judge; MURPHY and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Lori Bullock, BULLOCK LAW PLLC, Des Moines, Iowa, for Appellants. Bryan
H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky,
for Appellee. ON BRIEF: Lori Bullock, BULLOCK LAW PLLC, Des Moines, Iowa, Joshua I.
Hammack, BAILEY & GLASSER, LLP, Washington, D.C., Jill Zwagerman, NEWKIRK
ZWAGERMAN, PLC, Des Moines, Iowa, for Appellants. Bryan H. Beauman, Carmine G.
Iaccarino, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky,
William E. Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Appellee. Caleb
R. Trotter, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amici Curiae.
SUTTON, C.J., delivered the opinion of the court in which MURPHY and
BLOOMEKATZ, JJ., concurred. SUTTON, C.J. and MURPHY, J. (pp. 15–22), delivered a
separate concurring opinion.
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_________________
OPINION
_________________
SUTTON, Chief Judge. Several students sued the University of Kentucky under Title IX,
arguing that it failed to provide Division I sports teams for women in three sports: equestrian,
field hockey, and lacrosse. After a bench trial, the district court found that the plaintiffs had not
shown that enough female students at the University wanted to and had the ability to compete in
these sports at the Division I level, as opposed to the existing club team level. Because the
district court did not clearly err in making these findings and because the plaintiffs accept the
validity of the interpretive guidance on which those findings are premised, we affirm.
I.
The Wildcats represent the University of Kentucky on the basketball court, the running
track, the softball diamond, and the soccer field, among many other sports. The University’s
varsity teams compete at the highest level of college athletics, Division I of the National
Collegiate Athletic Association. They vie for championships with fellow members of the
Southeastern Conference (better known as the SEC), one of the most competitive and prestigious
college athletics leagues in the country.
The University sponsors 25 varsity teams in total. Of these, 13 are women’s teams, 10
are men’s teams, and 2 are co-ed teams. The University also offers men and women the
opportunity to participate on club teams that compete in a lower level of competition and whose
members do not receive scholarships. Those teams include women’s equestrian, field hockey,
and lacrosse.
As recently as thirteen years ago, women made up less than 38% of varsity student-
athletes at the University. The number rose steadily after that. By the 2022–23 academic year,
women made up a slight majority of varsity athletes.
The percentage of women in the University’s student body also grew during that period.
In 2012–13, women made up about half of the student body, and by 2022–23 they made up

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57.76% of the student body. That means that, despite the increased opportunities for female
students to compete in varsity sports, they still made up a smaller share of the varsity team
rosters than they do of the student body.
The number of men’s and women’s varsity sports teams is not static. The University
regularly reviews whether its student body has demand for, and can supply players to compete
in, new sports teams. The University has a Sports Review Committee designed to “understand
whether the interests and abilities of women at Kentucky are being met athletically.” R.149 at
155. The Committee regularly reviews statistics and other information to determine whether to
add more women’s varsity teams. It then passes along recommendations to University
leadership.
As part of this review process, the University sends out a mandatory student survey each
year to stay up to date on the sports its students want to participate in as well as their ability to
compete at the club or Division I level. To ensure full participation, all undergraduate students
(other than seniors) must fill out the survey before registering for classes. The survey asks
students whether they have a “serious interest in competing in any” Division I sports regardless
of whether the University currently offers them. Jt. Ex. 80 at 1. If so, students may report any
relevant credentials or experiences that would qualify them to compete in their chosen sport and
disclose whether they were recruited by other Division I programs. The survey asks students
who meet the relevant talent and ability benchmarks if they would comply with the athletic
department’s, SEC’s, and NCAA’s regulations for student-athletes. Students may share their
name, University email address, and answers about athletic credentials and experiences with the
athletic department.
In recent years, the Committee considered elevating some women’s club teams to varsity
status. Committee members met with students on the field hockey club team in 2017 and with
equestrian team representatives in 2023. The University’s student body did not have enough
interested students who could compete at the Division I level in those disciplines to field a team,
the Committee determined. For field hockey, for example, only 13 students had the requisite
skills and interest to play at a Division I level. Of these, only three of them provided a way for
the University to contact them about trying out for a potential team.

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Other club teams had more interest and more success. After discussions with members of
the club stunt team, research into the requirements to field a viable team, and review of the
annual survey results, the University formed a women’s varsity stunt team in 2021. The team
provided a varsity athletics experience for 56 female students the next year. Before that, the
University added two other varsity sports teams—women’s soccer and softball—over the prior
29 years.
The varsity sports offered by the University did not satisfy all of its students. One
student, Elizabeth Niblock, competed on the varsity lacrosse team at Furman University before
transferring to the University of Kentucky. Disappointed that the club team at Kentucky was
“student-led” and offered “less of a commitment than [her] high school” team, she decided not to
join it. R.149 at 12.
Niblock sued the University to try to create a varsity women’s lacrosse team. She filed a
class action on behalf of all female students at the University who wanted increased sports
opportunities. Under Civil Rule 23, the district court certified a class of “[a]ll present and future
female students at the University . . . who are harmed by and seek change of [its] allocation of
athletic participation opportunities for female students.” R.77 at 11. Niblock alleged that the
University failed to provide substantially proportionate opportunities for women to play varsity
sports, and violated Title IX’s prohibition on sex discrimination in education, see 20 U.S.C.
§ 1681(a). Niblock argued that the University needed to offer three additional women’s sports—
equestrian, field hockey, and lacrosse—to comply with Title IX.
The district court held a three-day bench trial that included nine witnesses, over 72
exhibits, and more than 600 pages of testimony. The court accepted several premises of
Niblock’s claim but ultimately ruled for the University. It accepted the validity of interpretative
guidance with respect to the meaning of a regulation promulgated by the Department of
Education under Title IX. It agreed with Niblock that, under that guidance, the University did
not provide “substantially proportionate” athletics spots for women because they constituted
between 3.21 percentage-points and 7.38 percentage-points more of the student body than of the
varsity roster spots. R.170 at 10, 14. And it agreed with Niblock that the University’s efforts to
increase participation opportunities for female students had not made up as much ground as they

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should have. Even so, the court found that the University had fulfilled the demand for varsity
athletics spots by female students who had an interest in, and the skills required for, competing at
a Division I level. Because the University did not have enough female students who wanted to
and could compete on varsity teams in equestrian, field hockey, or lacrosse, the court concluded
that the University did not violate Title IX.
II.
On appeal, Niblock maintains that the district court erred in finding that the University
could not form a new varsity team from the female students interested in and able to compete in
these sports. We give clear-error review to the district court’s fact findings and fresh review to
its legal conclusions. DAGS II, LLC v. Huntington Nat’l Bank, 865 F.3d 384, 388 (6th Cir.
2017).
A.
Title IX of the Education Amendments of 1972 is “spending clause” legislation that
requires the state recipients of federal funding to comply with its mandates. Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998). “No person in the United States,” the key
mandate says, “shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). At the same time, the law does not require
proportional representation of students on sports teams. It adds: “Nothing [in this mandate]
shall be interpreted to require any educational institution to grant preferential or disparate
treatment to the members of one sex on account of an imbalance which may exist with respect to
the total number or percentage of persons of that sex participating in or receiving the benefits of
any federally supported program or activity, in comparison with the total number or percentage
of persons of that sex in any community, State, section, or other area.” Id. § 1681(b).
The law was “patterned after Title VI of the Civil Rights Act of 1964.” Alexander v.
Sandoval, 532 U.S. 275, 280 (2001) (quotation omitted). Title VI parallels the meaning of the
Equal Protection Clause. Id. at 280–81.

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A threshold question in this case is what to do about the rules promulgated under the
statute and the interpretive guidance offered with respect to those rules. In 1975, the Department
of Health, Education, and Welfare promulgated a rule under the statute that provided as follows:
Schools that receive federal benefits “shall provide equal athletic opportunity for members of
both sexes.” 45 C.F.R. § 86.41(c); see also 34 C.F.R. § 106.41(c) (reissuance by the Department
of Education in 1980).
In 1979, the Department interpreted this rule to create three safe harbors for colleges and
universities trying to comply with Title IX. Here is how the interpretive guidance described each
safe harbor:
(1) Whether intercollegiate level participation opportunities for male and female
students are provided in numbers substantially proportionate to their respective
enrollments; or
(2) Where the members of one sex have been and are underrepresented among
intercollegiate athletes, whether the institution can show a history and continuing
practice of program expansion which is demonstrably responsive to the
developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate
athletes, and the institution cannot show a continuing practice of program
expansion such as that cited above, whether it can be demonstrated that the
interests and abilities of the members of that sex have been fully and effectively
accommodated by the present program.
1979 Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979).
Niblock accepts the validity of this rule and the interpretive guidance provided under it.
The University of Kentucky, in marked contrast, thinks that this guidance does not survive Loper
Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), or Kisor v. Wilkie, 588 U.S. 558 (2019).
Its briefing below and on appeal leads with the claim that we must invalidate the guidance and
assess Niblock’s claim based on the statute and the equal protection principles it embraces. See
20 U.S.C. § 1681(a); United States v. Virginia, 518 U.S. 515, 532–33 (1996).
We appreciate the University’s argument in view of the many developments in
administrative law since 1979. This court, notably, has not looked at the validity of the guidance
since Loper Bright and Kisor. But the reality that Niblock and her fellow claimants cannot

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satisfy the third prong of the interpretive guidance, as the district court correctly concluded,
suffices to resolve today’s dispute. We will resolve the appeal on that ground alone.
The third prong, to repeat in material part, says that a university satisfies Title IX by
providing athletics programs that “fully and effectively accommodate[]” the athletic “interests
and abilities” of both sexes. 1979 Policy Interpretation, 44 Fed. Reg. at 71,418; see Balow v.
Mich. State Univ., 24 F.4th 1051, 1054 (6th Cir. 2022); Horner ex rel. Horner v. Ky. High Sch.
Athletic Ass’n (Horner I), 43 F.3d 265, 274–75 & n.9 (6th Cir. 1994); Horner ex rel. Horner v.
Ky. High Sch. Athletic Ass’n (Horner II), 206 F.3d 685, 695–96 (6th Cir. 2000). This “safe
harbor” provides a “high” but “not absolute” standard for schools to meet. Cohen v. Brown
Univ. (Cohen I), 991 F.2d 888, 898 (1st Cir. 1993); see Horner I, 43 F.3d at 275 n.9; Portz v. St.
Cloud State Univ., 16 F.4th 577, 581 (8th Cir. 2021). A school is eligible for this safe harbor
unless a claimant carries its burden of demonstrating “sufficient interest and ability among
members of the statistically underrepresented gender, not slaked by existing programs.”
Horner I, 43 F.3d at 275 (quotation omitted); see id. at 277 (Batchelder, J., dissenting in part);
Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 831 (10th Cir. 1993).
To overcome the safe harbor, plaintiffs must prove that “sufficient numbers of
individuals” with “interest and ability” exist at the University “to form teams to compete.”
Horner I, 43 F.3d at 275 & n.9 (quotation omitted); see Cohen I, 991 F.2d at 898; cf. Balow, 24
F.4th at 1060–61 & n.6 (average team size is one factor in determining what is a viable team).
Those “levels of interest and ability” must be “extant in the student body.” Cohen I, 991 F.2d at
900; see also Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 858 (9th Cir. 2014).
Whether enough interest and ability existed to form a new team is a question of fact that
we disturb only if clearly erroneous. See Pederson v. La. State Univ., 213 F.3d 858, 878 (5th
Cir. 2000). That is because it involves weighing the evidence to find whether students want to
and can compete at a Division I varsity level, and determining from those facts whether the
students can form a team.
Niblock has not carried that burden with respect to the three proposed sports teams:
equestrian, field hockey, and lacrosse. The district court found that she did not prove “there are

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female students actually able to compete at a varsity level in [those sports] and that there are
enough of them to form a team” in those sports. R.170 at 30. We find no clear error in that fact
finding.
Start with the trial testimony from student athletes. It showed that one female student
wanted to and could compete in equestrian and two in lacrosse. That by itself falls well short of
the numbers needed to field each team. See Horner I, 43 F.3d at 275. Title IX does not require a
school to attempt to form a new team in response to “the pleas of one talented softball player,”
for example, “if sufficient numbers of individuals to form teams to compete do not exist.” Id. at
275 n.9 (quotation omitted).
Move to another type of probative evidence—the status and nature of the club teams in
each sport and whether the members of those teams showed the requisite interest and talent to
create a Division I varsity sport. The conditions of the existing equestrian, field hockey, and
lacrosse club teams do not show that the University could “sustain a viable team” for varsity
competitions in these women’s sports. See Cohen I, 991 F.2d at 898 (quoting 1979 Policy
Interpretation, 44 Fed. Reg. at 71,418).
Consider the club equestrian team. Its president thought that “maybe” five of its
members could compete at a Division I level. R.149 at 219. Its coach made a more conservative
estimate. She thought that only three of them could do it. Such teams require approximately 40
members. Thus, even if varsity-level coaching could enable several more students to compete at
that level, the gap is sufficiently large to establish that, on this record, there are not enough
students to field a viable team. This is not a sport by the way that a student could pick up
overnight without taking on considerable physical risk. The national governing body for
equestrian sets “a high level of success jumping fences over [three-and-a-half feet tall]” as one of
several benchmarks for being able to compete at the varsity level. R.149 at 245–46.
The same holds true for field hockey. The official in charge of club sports described the
field hockey team as not “particularly well-organized.” R.150 at 98. And as of 2023, only nine
students at the University reported Division I recruitment for field hockey. An average team, by
contrast, requires around 25 members.

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So also for lacrosse. As Niblock acknowledged, the club lacrosse team “seemed very
lackadaisical” and its “commitment is a middle school level.” R.149 at 23, 36. In 2020–21, the
women’s lacrosse club team had 20 members and 16 students reported Division I recruiting
interest. Those numbers again fall short of the 34 players needed to field a typical team.
The only other piece of evidence—the annual student survey—cuts in the same direction
when it comes to interest and ability. In 2023, the survey showed that 244 female students
expressed interest in an equestrian team. Of those students, 122 believed that they could
compete at a high-enough level, 34 reported that schools had recruited them for Division I teams,
and 10 more reported credentials or skills needed to compete. Eleven passed all of the
University’s athletics requirements and agreed to abide by its student-athlete rules. Only nine
individuals left contact information for the University to use in trying to assemble a varsity team
beyond the existing club team. That falls far below the average team size of 40 student-athletes.
The survey results for field hockey tell a weaker story. While 60 female students
expressed interest in field hockey, only 13 of them reported being recruited by a Division I
program or claimed to have the requisite skills to play Division I varsity field hockey. Just three
of the students gave contact information to confirm their interest. Roughly 25 students are
needed to create a field hockey team.
The survey results for lacrosse are of a piece. One hundred and thirty-six students
expressed interest in lacrosse. But only 19 of them reported being recruited by a Division I
lacrosse program or claimed to have the requisite skills to play Division I lacrosse. None of the
students provided contact information. A lacrosse team requires 34 students.
Equal sports opportunities are an essential and valuable component of higher education.
And the University has taken significant steps to ensure that it meets that standard, as shown by
the addition of several women’s club and varsity sports teams over the last 29 years. But Title
IX does not require schools to manufacture interest in a team or field teams unable to compete at
a meaningful level. The claimants have not shown that such an unmet demand exists, at least not
on this record. It is not the role of the federal courts to make a university create varsity teams

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when the evidence fails to show that its student body currently can fill their ranks. No clear error
occurred.
B.
Niblock objects to this conclusion along several lines. She claims that the surveys prove
her point. As acknowledged above, the surveys by themselves permit the conclusion that
sufficient interest exists for each of the three sports and, if self-reported talent suffices, it’s
possible that the University has enough students with the requisite ability to field each of these
teams. But as the district court found, and as we agree, self-reported ability on a largely
anonymous survey does not make up for a lack of actual evidence of demonstrated capacity to
field a Division I team. That explains why the survey includes objective measures of ability—
recruitment by other Division I schools, success on high school and other teams, or other
measurable achievements. The surveys by themselves cannot make up for the absence of
evidence of individuals who want to play these varsity sports and have shown an ability to do so.
Most glaringly absent on this front is any evidence that the three club teams in these sports have
a sufficient number of athletes who can, and want to, compete on a Division I level. The survey
provides at best a “snapshot of students’ self-reported interest and ability.” R.170 at 28. The
district court reasonably found that “responses to a written survey” do not demonstrate “actual
physical ability to be placed on a varsity team.” R.170 at 28. Surveys are not tryouts, and a
student’s self-reported assessment of ability lacks independent and objective evaluation.
Niblock insists that the district court’s conclusions about whether enough interested and
able students exist to form a viable new team answers a question of law that we review with
fresh eyes. Not so. The “district court’s finding” about whether “the requisite level of interest
existed is a finding of fact subject to review for clear error.” Pederson, 213 F.3d at 878; cf.
Balow, 24 F.4th at 1056–57 (reviewing for clear error the district court’s finding that a university
did not inflate its female athlete numbers or mischaracterize participation opportunities). The
same is true of findings about ability. Pederson, 213 F.3d at 879 (findings “regarding the
interests and abilities of its student body” are disturbed only if “clearly erroneous”).
Determining whether students want to join a varsity team and have the skills to compete at a

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Division I level requires a close examination of the evidence, credibility assessments, and
weighing of conflicting testimony—all classic hallmarks of a question of fact.
Niblock argues that, at all events, the role of survey results in this analysis presents a
question of law. We agree. Challenges to how the survey was conducted and whether it presents
useful evidence raise legal questions that we review with fresh eyes. But that does not change
our analysis. The district court considered the survey; it simply did not find it persuasive when it
came to the plaintiff’s burden to establish unmet interests and the existing ability of its students
in these sports.
Niblock’s challenges to how the University conducted the survey get her no further.
Noting that the University administers the survey, Niblock faults the University for perceived
inadequacies in its methodology and claims that the University does not show that it has met the
needs of all interested and able students. But Niblock, not the University, bears the burden of
showing unmet interest and ability, Horner I, 43 F.3d at 275; Roberts, 998 F.2d at 831, and it
was Niblock, not the University, who introduced the survey to meet her burden.
Niblock objects that “[r]equiring contact information for [an] anonymous survey . . .
creates a ‘false measure’ of both interest and ability.” Reply Br. 8. But surely one way to
identify interest and ability in a team is to have the students let the university know who they are.
The survey’s final question asked students whether they “[w]ould [] like the UK Athletics
Department to consider your information?” Jt. Ex. 80 at 21. If a student answered yes, the
survey said that “your name,” “UK email address,” and “answers about your credentials and
experience in the sport(s) in which you qualified to compete will be shared with the UK Athletics
department,” while the remainder of the survey remained “confidential.” Jt. Ex. 80 at 21. The
University could reasonably doubt that it could form viable teams from students who answered
“no” to this question.
Niblock persists that Title IX does not require a claimant to point to the exact students
who could join a new team or prohibit anonymous evidence of students’ ability. We again agree.
The existing legal standard simply asks plaintiffs to persuade the finder of fact that enough
students have the interest and ability to field a viable team that can compete at a varsity level.

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Testimony about three students’ abilities and interests, descriptions of club teams whose own
members did not think they could compete at a varsity level, and largely anonymous self-
reported survey results did not suffice here, as the fact finder permissibly found. We do not in
the process create a blanket rule against anonymous accounts of ability or a prohibition on
survey results in Title IX cases. In a different case with a different record, this kind of evidence
could play a part in persuading the fact finder that a school did not satisfy its Title IX
obligations. They just do not show that the district court committed clear error here.
Niblock maintains that this survey data should have persuaded the district court. She
proposes a hypothetical tryout, after which a coach would act irrationally to discount
demonstrated ability just because an athlete did not leave names and numbers. But this example
illustrates the problem with her survey evidence. Unlike the real-world skill shown at an in-
person tryout, the online survey shows, at best, only what students believe about themselves.
Without the requested contact information, the University cannot follow up to assess their ability
for itself.
The district court contradicted itself, Niblock says, by concluding that the survey could
show interest but not ability. We do not see any tension. A fact finder could rationally credit
subjective interest while requiring a student to demonstrate skill and ability in objective ways.
Invoking an out-of-circuit district court opinion, Niblock argues that she had to show
only a “foundation upon which to build a varsity program.” Cook v. Colgate Univ., 802 F. Supp.
737, 748 (N.D.N.Y. 1992), vacated on other grounds, 992 F.2d 17 (2d Cir. 1993). Recruiting
high school players could build upon that foundation to create a viable team, she says. The
pertinent question, however, “focuses on the levels of interest and ability extant in the student
body.” Cohen I, 991 F.2d at 900; see also Horner I, 43 F.3d at 275. That makes sense because
Title IX does not require a school to attempt to form a new team unless the student body can
field “teams to compete.” See Horner I, 43 F.3d at 275 n.9.
Niblock alternatively argues that the district court should not have required her to
demonstrate that the existing students could form a viable team. That, she says, conflates a
question of liability about whether the University violated Title IX with a question of remedy

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about what a court should do about it. But the district court applied Title IX and its regulations
as understood by our existing precedent. We have said that plaintiffs must show “sufficient
interest and ability.” Id. at 275. That means “sufficient numbers of individuals to form teams to
compete.” Id. at 275 n.9; accord Cohen I, 991 F.2d at 898. Although this question may also
prove relevant at the remedy stage, it remains independently salient at the liability stage.
Niblock raises the general point that the district court’s approach does not square with the
“exacting” standard that the interest-and-ability test places on schools. Horner I, 43 F.3d at 275
n.9. But the district court correctly applied our cases. And this approach sets an appropriately
“high” standard for schools, Cohen I, 991 F.2d at 898—“full[] and effective[] accomodat[ion].”
1979 Policy Interpretation, 44 Fed. Reg. at 71,418.
At oral argument, Niblock questioned the estimated size of a viable equestrian team.
Forty student-athletes, she said, could comprise a combined hunt-seat and western team. The
district court found, thrice over, that the average equestrian team has 40 members, without
distinguishing hunt-seat from western. And it grounded this finding on the National Collegiate
Equestrian Association’s report that 40 athletes make up the “average varsity equestrian roster
size.” Pl. Ex. 27 at 8. Niblock’s principal brief not only failed to challenge that factual finding,
but it also agreed that “the average varsity NCAA equestrian team has only forty participants.”
Appellants’ Br. 49; see also id. at 36.
III.
Niblock separately challenges the district court’s decision to exclude an expert witness, a
decision that receives abuse-of-discretion review. United States v. Sammons, 55 F.4th 1062,
1072 (6th Cir. 2022). Evidence Rule 702 requires would-be expert witnesses to “qualif[y] as an
expert by knowledge, skill, experience, training, or education.” Fed. R. Evid. 702.
Niblock sought to introduce expert testimony to undermine the methodology of
Kentucky’s survey. The district court found that the witness lacked expertise on Title IX survey
methodology and excluded the witness’s testimony. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993).

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The district court permissibly excluded the expert. The witness acknowledged that Title
IX survey design falls outside the ambit of her expertise. She explained that she also “run[s]
[her] questions and surveys by a number of experts.” R.119 at 66. Those “experts” include ones
who specialize in “survey design.” R.119 at 66. The witness contrasted that label with a
description of her own expertise, which does not include being “a specialist in survey design.”
R.119 at 66. No abuse of discretion occurred in excluding this witness.
We affirm.

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__________________
CONCURRENCE
__________________
SUTTON, Chief Judge, and MURPHY, Circuit Judge, concurring. This case could have
been far simpler under Title IX’s ordinary meaning. With certain exceptions, that title’s main
provision bars universities from taking certain harmful actions “on the basis of sex”: “No person
in the United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity receiving
Federal financial assistance[.]” 20 U.S.C. § 1681(a). Title IX thus requires a plaintiff’s “sex” to
be the “basis” for the “exclu[sion],” “deni[al],” or “discrimination” challenged in litigation. Id.
(emphasis added). That is, the plaintiff’s sex must be the “main constituent” or “fundamental
ingredient” of a university’s decision to engage in the exclusion, denial, or discrimination.
I Oxford English Dictionary 985 (2d ed. 1989); see American Heritage Dictionary of the English
Language 111 (New Coll. Ed. 1975); Webster’s Third New Int’l Dictionary 182 (3d ed. 1966).
So at a minimum, the plaintiff’s sex must qualify as the but-for cause of the harmful action—
meaning that the school would not have taken the action if the plaintiff had been of the opposite
sex. See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013); Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 176 (2009). And if anything, this language might convey that the
plaintiff’s sex must be the “core” reason for that harmful action—not just a peripheral one.
EPA v. Calumet Shreveport Refining, L.L.C., 145 S. Ct. 1735, 1750–51 (2025) (emphasis added).
Either way, the plaintiffs in this case—female students at the University of Kentucky—
did not even try to prove this intentional sex discrimination. They allege that the University
violated Title IX because it refused to create a women’s lacrosse team, field-hockey team, and
equestrian team. But no evidence suggests that their sex was the but-for reason—let alone the
core reason—for the refusal to create these teams. In fact, the University does not have a men’s
lacrosse team, field-hockey team, or equestrian team either. Even if the plaintiffs had been male
students, then, they would still have been “excluded from participation in” and “denied the
benefits of” these sports. 20 U.S.C. § 1681(a). And the district court found as a fact that the
University refrained from creating the three teams for a neutral reason unrelated to sex: it lacked

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enough “female students actually able to compete at a varsity level” in any of the sports. R.170
at 30. That type of neutral, nondiscriminatory reason—the lack of sufficient ability within the
student body—should doom claims of sex discrimination no matter the sex of the students suing.
How do the plaintiffs attempt to show a Title IX violation instead? They point to a
regulation that requires universities to “provide equal athletic opportunity for members of both
sexes.” 34 C.F.R. § 106.41(c); see 45 C.F.R. § 86.41(c). They then rely on agency guidance
interpreting this regulation issued by the Department of Health, Education, and Welfare in 1979.
This guidance has long told universities that they can comply with the regulation’s equal-
opportunity mandate in three ways. Universities may first strive for a quota: the athletic
“participation opportunities” for each sex must be “substantially proportionate to their respective
enrollments” at the university. 1979 Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (Dec. 11,
1979). If universities do not satisfy this quota, they may alternatively show that they have tried
to expand the athletic opportunities for the underrepresented sex in a way that “is demonstrably
responsive to the developing interest and abilities of the members of that sex.” Id. And if
universities cannot satisfy this second factor, the guidance lastly asks whether the university has
intentionally designed its current athletic “program” in a way that has “fully and effectively
accommodated” “the interests and abilities of the members of” the underrepresented sex. Id.
According to the plaintiffs, the University has violated Title IX because it cannot satisfy
any of the three factors. The University allegedly cannot satisfy the guidance’s first (quota)
factor because women made up 57% of its student body but only 50% of its student athletes
during the last year in the record. And the University allegedly cannot satisfy the guidance’s
second factor because it has not done enough to intentionally create athletic opportunities for
women. Lastly, the University allegedly cannot satisfy the guidance’s third factor because the
plaintiffs believe enough female students have the interest and ability to play on one of the three
sports teams.
Suffice to say, we are skeptical of this guidance’s validity. The Department of Health,
Education, and Welfare adopted the guidance in a different world, one where the modern
Department of Education did not yet exist and one where courts routinely deferred to agency
interpretations of statutes and regulations. That explains why our circuit upheld the 1979

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guidance in the past. See Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 615 (6th
Cir. 2002); Horner v. Ky. High Sch. Athletic Ass’n (Horner I), 43 F.3d 265, 273 & n.6 (6th Cir.
1994).
But a lot has changed since 1979. We no longer defer to agency interpretations of the
statutes they administer. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024)
(overturning Chevron U.S.A. Inc., v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). We now
treat all laws alike, “independently interpret[ing] the statute and effectuat[ing] the will of
Congress subject to constitutional limits,” without abdicating that responsibility to executive
agencies. See id. at 395; Pickens v. Hamilton-Ryker IT Sols., LLC, 133 F.4th 575, 587 (6th Cir.
2025).
And we no longer lightly defer to agency interpretations of their own regulations. See
Kisor v. Wilkie, 588 U.S. 558, 573–80 (2019) (narrowing Auer v. Robbins, 519 U.S. 452 (1997),
and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)); id. at 632 (Kavanaugh, J.,
concurring in the judgment) (Kisor “clarif[ies] and narrow[s]” Auer) (quotation omitted); see
also Christopher J. Walker, What Kisor Means for the Future of Auer Deference: The New Five-
Step Kisor Deference Doctrine, Yale J. On Regul.: Notice & Comment (June 26, 2019). We
must interpret a regulation according to our best lights unless the regulation remains “genuinely
ambiguous” after “exhaust[ing] all the traditional tools of construction.” Kisor, 588 U.S. at 574–
75 (quotation omitted). Potential deference to an agency’s interpretations of its own rules comes
into play relatively infrequently these days, because we usually can identify “the best
interpretation of the regulation” and thus “have no need to adopt or defer to an agency’s contrary
interpretation.” Id. at 632 (Kavanaugh, J., concurring in the judgment).
The fate of these erstwhile deference-to-agency regimes remains linked. One reason that
an agency’s interpretations of its own rules received deference under Auer was that its views of
the relevant statute also received deference under Chevron. Knock out Chevron, and the scope
of Auer deference narrows considerably, if indeed it remains meaningful at all.
Loper Bright and Kisor should prompt us to revisit the 1979 guidance in an appropriate
case. Of most note, many indicators show that Title IX likely “prohibits only intentional

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discrimination.” Alexander v. Sandoval, 532 U.S. 275, 280 (2001); see Jackson v. Birmingham
Bd. of Educ., 544 U.S. 167, 173–74 (2005); Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d
235, 240 (6th Cir. 2019). As we have explained, the “on the basis of sex” text points that way.
20 U.S.C. § 1681(a). So does Congress’s decision to borrow from Title VI’s ban on race
discrimination when drafting Title IX’s ban on sex discrimination. Compare id., with 42 U.S.C.
§ 2000d. The Supreme Court has read Title VI to bar only intentional discrimination—not
neutral policies that have a disparate impact on one race. See Sandoval, 532 U.S. at 280–81. It
thus would make little sense to interpret Title IX’s nearly identical language as permitting such
disparate-impact claims. See Poloceno v. Dallas Indep. Sch. Dist., 826 F. App’x 359, 362 (5th
Cir. 2020) (per curiam); see also Horner ex rel. Horner v. Ky. High Sch. Athletic Ass’n
(Horner II), 206 F.3d 685, 692 (6th Cir. 2000). If anything, Title IX provides the easier case for
this conclusion. Congress expressly said not to interpret its ban on sex discrimination as
requiring universities “to grant preferential or disparate treatment to the members of one sex on
account of an imbalance which may exist with respect to the total number or percentage of
persons of that sex participating” in an educational program or activity such as athletics.
20 U.S.C. § 1681(b).
Under this interpretation, though, the 1979 guidance puts the regulation’s “equal
opportunity” mandate on a collision course with the statute’s intentional-discrimination ban.
Consider the guidance’s first factor. It encourages universities to “evaluate the [sex-based]
outcomes of their [athletic] policies, and to make decisions based on . . . those [sex-based]
outcomes.” Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J., concurring). How else
could universities ensure that the number of varsity athletic spots they offer to both sexes remain
“substantially proportionate to their respective enrollments”? 44 Fed. Reg. at 71,418. And to
achieve this proportionality, universities might not have the budgets to increase the number of
opportunities available for women. They might instead achieve compliance by reducing the
number of opportunities available for men—such as by cutting varsity teams. See Miami Univ.,
302 F.3d at 611, 615–16; Neal v. Bd. of Trs. of Cal. State Univ., 198 F.3d 763, 769–70 (9th Cir.
1999). Yet one might view this decision to “den[y]” males the “benefits of” the eliminated
teams “on the basis of [their] sex” as the very discrimination that Title IX prohibits. 20 U.S.C.
§ 1681(a); cf. Ricci, 557 U.S. at 594 (Scalia, J., concurring). And how is this quota consistent

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with the statutory ban on requiring universities “to grant preferential or disparate treatment” to
one sex because of a disparate impact? 20 U.S.C. § 1681(b). In short, the guidance appears to
create a safe harbor contrary to the safe harbor provided by the statute itself, incentivizing
universities to adopt a proportionality requirement that Congress explicitly rejected.
The second and third safe harbors create the same tension with Title IX’s text. These
factors ask schools to (1) “show a history and continuing practice of program expansion which is
demonstrably responsive to the developing interest and abilities of the members of that sex” or
(2) show “that the interests and abilities of the members of that sex have been fully and
effectively accommodated by the present program.” 44 Fed. Reg. at 71,418. Both safe harbors
thus seem to eliminate liability so long as a school’s athletics program intentionally strives to
avoid a disparate impact for one sex or the other. That approach does not match the one
Congress took in the statute.
Recall too that the Supreme Court has never evaluated the validity of the 1979 guidance
or the regulation that it interprets. Lacking any precedent upholding these sources under
Chevron or Auer, the Court would likely feel free to give fresh review to them using the “change
in interpretive methodology” that Loper Bright and Kisor adopted. Loper Bright, 603 U.S. at
412. And it would likely give no “statutory stare decisis” effect to the circuit decisions that have
upheld the guidance under the now-outdated deference regimes. Id.; see Miami Univ., 302 F.3d
at 615. If so, circuit courts likely should reevaluate their own precedent using the changed
approaches. After all, we will reevaluate our own precedent even based on Supreme Court dicta.
See United States v. Fields, 53 F.4th 1027, 1048 n.13 (6th Cir. 2022). And the refusal to
reevaluate our precedent under the new interpretive approaches would set us up for reversal at
the Supreme Court—which would undoubtedly apply those approaches when it considers these
issues.
Nor, for what it is worth, does the 1979 disparate-impact guidance inevitably arise from
the relevant regulation that the Department of Education issued under Title IX. One might
interpret that regulation—which requires schools to “provide equal athletic opportunity for
members of both sexes,” 34 C.F.R. § 106.41(c)—to comport with the statute by prohibiting only
intentional discrimination. And the factors that the regulation lists—such as an athletics

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department’s “provision of equipment and supplies” or its “[p]rovision of locker rooms, practice
and competitive facilities”—might represent evidence about whether a university has engaged in
this prohibited discrimination. Id.; cf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 266–67 (1977). Likewise, the statutory text permits courts to “consider[]” an alleged
“imbalance” between male and female athletic opportunities as further evidence of that
discrimination in a “proceeding” under Title IX. 20 U.S.C. § 1681(b); cf. Vill. of Arlington
Heights, 429 U.S. at 266.
All this said, we are content to resolve this case narrowly because the University’s
briefing ignores the complexity that would arise from replacing the 1979 guidance with an
intentional-discrimination approach. A few questions that the University did not even
confront—let alone try to answer—prove this point. How, for example, should courts address
the reality that schools have long separated the sexes into distinct men’s and women’s sports
teams? Nobody would suggest that Title VI would permit similar racial classifications. See
Brown v. Bd. of Educ., 347 U.S. 483, 493–95 (1954). Yet a few clues in the Title IX context
suggest that this longstanding practice comports with the statute’s commands. See 34 C.F.R.
§ 106.41(b). In particular, the statute tells courts that “nothing contained herein shall be
construed to prohibit” universities “from maintaining separate living facilities for the different
sexes.” 20 U.S.C. § 1686. This section shows that courts cannot “construe[]” Title IX’s ban on
sex “discrimination” as barring all sex-based classifications. So if a university separates the
sexes into comparable men’s and women’s teams for a specific sport based on their biological
differences, one might say that neither males nor females have been “excluded from participation
in, . . . denied the benefits of, or . . . subjected to discrimination” in the sport “on the basis of
[their] sex.” 20 U.S.C. § 1681(a); see O’Connor v. Bd. of Educ. of Sch. Dist. 23, 449 U.S. 1301,
1306–07 (1980) (Stevens, J., in chambers).
But what happens if a university offers a sport (say, football for men or field hockey for
women) to members of one sex and does not have an equivalent team for the opposite sex? Must
members of the opposite sex “be allowed to try-out for the team” in some circumstances—as the
regulation suggests? 34 C.F.R. § 106.41(b). Might universities have an exception to this “try-
out” requirement for “contact” sports? Id. Might universities justify this differential treatment

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based on a neutral factor: the lack of interest and ability to field a competing team made up of
members of the opposite sex? Or might universities respond that their overall athletics
department should qualify as the relevant “education program” for Title IX purposes and that the
department offers a comparable number of one-sex-only teams for both sexes? 20 U.S.C.
§ 1681(b). All told, difficult questions may well exist under an intentional-discrimination
approach—which makes caution the order of the day in a case in which the parties have not
briefed the questions.
Also calling for caution, we do not know whether the Department of Education even
stands by its 1979 guidance today. It would be strange to “defer” to agency guidance that the
agency itself has disavowed. So when the time comes to assess the validity of this guidance,
courts would do well to call for the views of that department. Or the federal government might
try to clarify its own views by amending its Title IX regulations. Cf. Rescinding Portions of
Department of Justice Title VI Regulations, 90 Fed. Reg. 57,141, 57,141 (Dec. 10, 2025).
The federal government, notably, now appears to embrace an intentional-discrimination
reading of Title IX. In a recent brief to the Supreme Court, the Solicitor General argued that
Title IX’s ban on “discrimination” prohibits schools only from treating “similarly situated
[individuals] differently without sufficient justification for the difference in treatment” or
subjecting students “to less favorable treatment than similarly situated members of the other
sex.” Brief for the United States as Amicus Curiae Supporting Petitioners at 12, Little v. Hecox,
No. 24-38 (U.S. Sept. 19, 2025) (quotations omitted). In another brief last term, it put the point
concretely: “[The Supreme] Court’s decisions interpreting Title IX” impose “[a] discriminatory-
intent requirement for damages claims.” Brief for the United States as Amicus Curiae
Supporting Petitioner at 15‒16, A.J.T. ex rel. A.T. v. Osseo Area Schs., 605 U.S. 335 (2025).
One last uncertainty. The plaintiffs sued the University for “violation[s] of Title IX and
34 C.F.R. § 106.41(c)(1).” R.72 at 20. Title IX, the Supreme Court has held, creates an implied
private right of action for violations of the statute itself—and the equal protection principles it
adopts. Cannon v. Univ. of Chi., 441 U.S. 677, 690–93 (1979). That implied right of action,
however, would not seem to extend to violations of regulations (and still less to guidance) issued
under it, just as the Supreme Court found in the related Title VI context. See Alexander, 532

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U.S. at 285–87. Because “plaintiffs may not assert claims under Title IX for conduct not
prohibited by that statute,” Jackson, 544 U.S. at 178 & n.2, Title IX likely does not provide a
private cause of action for conduct proscribed only by the Department’s regulations and
interpretive guidance. That is because the private right of action under Title IX extends only to
“intentional sex discrimination.” Id. at 173; see also Horner II, 206 F.3d at 692. As under Title
VI, we should be careful not to revise Congress’s work by extending a right of action to
nonintentional disparate-impact claims. See Alexander, 532 U.S. at 285–86. That care is
particularly necessary here because Congress must give states clear notice when it exercises its
spending power. See Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 374 (2025).
* * *
At day’s end, the current caselaw applying Title IX in the athletic context does not appear
to comport with the statute’s text and instead rests on now-outdated views of agency deference.
But much about the proper approach to Title IX in this sensitive area remains open to debate.
With these observations, we concur in the majority decision resolving this case on narrow
grounds.

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