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Earlier this year, the Sixth Circuit affirmed a decision finding that the University of Kentucky was not required to add additional women’s Division I sports.  While the circuit court’s decision applied the Department of Education's Title IX guidance regarding equivalent athletic opportunities, the most consequential aspect of the case may lie in the concurrence. Two out of three judges on the panel explicitly questioned the validity of the Department of Education’s long‑standing Title IX athletic regulations and interpretive guidance in light of the recent Supreme Court decisions curtailing judicial deference to federal agencies.

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As colleges and universities continue to litigate Title IX cases, arguments challenging the weight historically afforded to Title IX guidance are likely to gain traction. Niblock offers an early glimpse into how courts may begin revisiting these frameworks and tees up a potential challenge to the Department of Education’s guidance and regulations governing the application of Title IX to intercollegiate athletics.

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In Niblock, several female students sued the University of Kentucky, alleging a Title IX violation for failing to sponsor Division I varsity teams in equestrian, field hockey, and lacrosse.<a href="#_ftn1" id="_ftnref1">[1]</a> The school did not have equivalent teams for male students.<a href="#_ftn2" id="_ftnref2">[2]</a> Rather, the plaintiffs argued that because women comprised a greater percentage of the undergraduate student body than their percentage of varsity athletes, the university was required to add women’s teams in those sports.<a href="#_ftn3" id="_ftnref3">[3]</a>

Both the district court and the Sixth Circuit rejected that claim, holding that the university satisfied the Department of Education’s 1979 Title IX guidance, which provides three “safe harbors” by which institutions can demonstrate they have provided equal athletic opportunity in their athletic programs (also known as the three-prong test).<a href="#_ftn4" id="_ftnref4">[4]</a> Although Title IX itself does not require proportional representation on sports teams, Title IX athletic regulations require that schools must provide “equal athletic opportunity for members of both sexes.”<a href="#_ftn5" id="_ftnref5">[5]</a>

Both courts found the university’s program was compliant under the standards set forth in the Department of Education’s guidance because the university had shown its program fully and effectively accommodated the interests and abilities of female students under prong three of the test.<a href="#_ftn6" id="_ftnref6">[6]</a> This holding was based on an extensive factual record that demonstrated a lack of sufficient Division I skill and interest in the general student body for the sports in question.<a href="#_ftn7" id="_ftnref7">[7]</a>

The Broader Questioning of Title IX Regulations and Guidance

In holding that the university complied with the prong-three safe harbor, the court sidestepped a larger question. The majority declined to resolve the case based on the university’s argument that the 1979 guidance and underlying rule are invalid in light of Loper Bright and Kisor, two recent administrative law Supreme Court cases.<a href="#_ftn8" id="_ftnref8">[8]</a> Loper Bright abrogated Chevron deference to agencies’ reasonable interpretations of federal statutes, while Kisor curtailed deference to an agency’s reasonable interpretation of its own regulations.<a href="#_ftn9" id="_ftnref9">[9]</a>

However, the court seemed to indicate some approval for the stance: “We appreciate the University’s argument in view of the many developments in administrative law since 1979.”<a href="#_ftn10" id="_ftnref10">[10]</a> The court, however, declined to address the broader issue, because it could hold for the university on the narrower ground that it complied with the safe harbor.

The concurrence, joined by two of the three judges, including Chief Judge Sutton, expressed direct skepticism of the 1979 guidance and a willingness to review it based on the Supreme Court’s current approach to administrative law.<a href="#_ftn11" id="_ftnref11">[11]</a>

The concurrence would have decided the case based on the “ordinary meaning” of Title IX, which bars certain actions taken “on the basis of sex.”<a href="#_ftn12" id="_ftnref12">[12]</a> The plaintiffs showed no evidence of intentional discrimination—there was no men’s equivalent for the teams that the plaintiffs wanted, and they did not show any other evidence that the university chose not to create teams due to sex.<a href="#_ftn13" id="_ftnref13">[13]</a> Rather, the university declined to create the teams due to the neutral and nondiscriminatory reasons that there was not sufficient interest or ability.

The judges expressed significant skepticism toward the ongoing validity of the Title IX athletic regulation and guidance altogether after Loper Bright and Kisor. The concurrence argued that Title IX bars only intentional discrimination, which is at odds with the guidance’s equal opportunity mandate.<a href="#_ftn14" id="_ftnref14">[14]</a> Moreover, the concurrence recognized that the implied private right of action under Title IX extends only to intentional discrimination and “likely does not provide a private cause of action for conduct proscribed only by the Department's regulations and interpretive guidance.”<a href="#_ftn15" id="_ftnref15">[15]</a>

The judges recommended revisiting the guidance “in an appropriate case” and acknowledged that the case at hand was not the right case in which to do so: “the University’s briefing ignores the complexity that would arise from replacing the 1979 guidance with an intentional-discrimination approach.”<a href="#_ftn16" id="_ftnref16">[16]</a> Alternatively, the concurrence noted that the Department of Education may no longer even support the 1979 guidance, and that the federal government could also amend the Title IX athletic regulations.<a href="#_ftn17" id="_ftnref17">[17]</a>

The concurrence also added the reminder “that the Supreme Court has never evaluated the validity of the 1979 guidance or the regulation that it interprets” and would “likely feel free to give fresh review” under Loper Bright and Kisor.<a href="#_ftn18" id="_ftnref18">[18]</a> The concurrence further recommended that the Sixth Circuit reevaluate its own cases decided based on the 1979 guidance.<a href="#_ftn19" id="_ftnref19">[19]</a>

Niblock v. University of Kentucky signals potential challenges to Title IX athletic regulations and guidance, and a possible return to a focus on intentional discrimination and the text of Title IX itself. While the majority opinion resolved the case on familiar grounds, the concurrence invites future litigants to question whether decades-old guidance and regulations remain valid after Loper Bright and Kisor.

Niblock suggests that the regulatory landscape governing collegiate athletics might be in flux. We will continue to monitor these developments closely, as challenges to the Title IX athletics framework may move from concurring opinions to dispositive holdings. Please contact one of the authors or another Michael Best attorney if you have any questions or would like to discuss the potential implications of this decision.&nbsp;

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<a href="#_ftnref1" id="_ftn1">[1]</a> Niblock v. Univ. of Ky., 165 F.4th 460, 461 (6th Cir. 2026).

<a href="#_ftnref2" id="_ftn2">[2]</a> Id. at 470.

<a href="#_ftnref3" id="_ftn3">[3]</a> Id. at 462.

<a href="#_ftnref4" id="_ftn4">[4]</a> Id. at 474 (citing Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979)).

<a href="#_ftnref5" id="_ftn5">[5]</a> 34 C.F.R. § 106.41(c)

<a href="#_ftnref6" id="_ftn6">[6]</a> Niblock, 165 F.4th at 466.

<a href="#_ftnref7" id="_ftn7">[7]</a> Id. at 463.

<a href="#_ftnref8" id="_ftn8">[8]</a> Id. at 464.

<a href="#_ftnref9" id="_ftn9">[9]</a> Loper Bright Enter. v. Raimondo, 603 U.S. 369 (2024); Kisor v. Wilkie, 588 U.S. 558 (2019)/

<a href="#_ftnref10" id="_ftn10">[10]</a> Niblock, 165 F.4th at 464.

<a href="#_ftnref11" id="_ftn11">[11]</a> See id. at 470.

<a href="#_ftnref12" id="_ftn12">[12]</a> Id.

<a href="#_ftnref13" id="_ftn13">[13]</a> Id.

<a href="#_ftnref14" id="_ftn14">[14]</a> Id. at 472.

<a href="#_ftnref15" id="_ftn15">[15]</a> Id. at 474 (citing Alexander v. Sandoval, 532 U.S. 275, 280 (2001)).

<a href="#_ftnref16" id="_ftn16">[16]</a> Id. at 471.

<a href="#_ftnref17" id="_ftn17">[17]</a> Id. at 473.

<a href="#_ftnref18" id="_ftn18">[18]</a> Id. at 472.

<a href="#_ftnref19" id="_ftn19">[19]</a> Id. at 473.

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Niblock v. University of Kentucky and the Future of Title IX: Sixth Circuit Concurrence Tees Up Challenge to Title IX Regulations and Guidance

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