Whether, in determining compliance with Title IX and the substantial proportionality rule, the athletic participation gap between male and female students must be assessed in raw numerical terms, or, instead, may be assessed as a percentage figure

QUESTION PRESENTED Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any educational program or activity that receives federal financial assistance. 20 U.S.C. § 1681(a). Regulations implementing Title IX require that recipients of such assistance “shall provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c). An interpretative guidance issued in 1979, following notice and comment, clarifies this equal-opportunity mandate and establishes a safe harbor where “intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.” 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). Compliance with this safe harbor is critical to virtually every school that operates an intercollegiate athletics program. The question presented—on which there is an acknowledged circuit split—is whether, in determining compliance with Title IX and the substantial proportionality rule, the athletic participation gap between male and female students must be assessed in raw numerical terms, or, instead, may be assessed as a percentage figure.