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Title IX Update: Office for Civil Rights Issues New Guidance on Interscholastic Athletics

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On Friday, February 17, 2023, likely in response to a plethora of class-based complaints relating to girls’ basketball, the Department of Education’s Office for Civil Rights (OCR) published three resources in support of equal opportunity related to athletic programming in accordance with Title IX. OCR released these resources to help parents, coaches, educators, and students assess whether schools are meeting their responsibility to provide equal athletic opportunities to all students regardless of sex. The documents can be directly accessed by clicking the links below:

Each document summarizes the background of Title IX and provides a playbook for what may be a violation of Title IX. As a general reminder, equal opportunity in K-12 school athletic programs, including club, intramural, and interscholastic teams, is measured by both the opportunities and treatment given to boys’ and girls’ teams and how a school is meeting the needs of students’ athletic talent, regardless of gender.

Equal opportunity in K-12 school athletic programs is measured by—1: The benefits, opportunities, and treatment given to boys’ and girls’ teams, and 2: How a school is meeting students’ athletic interests and abilities. When a school offers boys’ and girls’ athletic teams, the Title IX regulations require that the school offer equivalent benefits, opportunities, and treatment to its boys’ and girls’ teams overall.

Answering “no” to any of these questions may indicate a possible Title IX violation.

  • Equipment and Supplies: Does your school provide athletic gear of equivalent quality, quantity, suitability, condition, and availability for athletes on boys’ and girls’ teams? (For example, uniforms, apparel, sports equipment, general supplies)
  • Scheduling Games and Practice Time: Do boys’ and girls’ teams both have a reasonable opportunity to compete before an audience? (For example, Sunday morning games may be less likely to generate attendance and interest than Friday night games. So, scheduling all girls’ teams’ games for Sunday mornings and all boys’ teams’ games for Friday nights would likely not provide the girls’ teams the same opportunity to compete before an audience as the boys’ teams.)
  • Do the boys’ and girls’ teams play an adequate number of regular season games or other competitions for the team’s division level? Are scheduled practice times equally convenient for both boys’ and girls’ teams?
  • Are the number and length of practice sessions equivalent for girls’ and boys’ teams in the same or similar sports?
  • Travel and Daily Allowance: Do athletes on girls’ and boys’ teams use equivalent modes of transportation when traveling to away games or competitions?
  • Do boys’ and girls’ teams have coaches with equivalent qualifications?
  • Are coaches available to girl and boy athletes for equivalent amounts of time?
  • Do coaches of boys’ and girls’ teams receive equivalent compensation?
  • Do coaches of girls’ and boys’ teams have equivalent “other duties”?
  • Locker Rooms and Fields, Courts, or Other Facilities for Practice and Competition: Do athletes on boys’ and girls’ teams have locker rooms of equivalent quality and size? Are the conditions of playing fields, courts, pools, and other practice/game facilities for boys’ and girls’ teams equivalent?
  • Do members of boys’ and girls’ teams have equivalent access to training facilities? (For example, whether certain teams have priority or exclusive use of facilities while others must share facilities)
  • Publicity: Does your school provide equivalent coverage for boys’ and girls’ teams and athletes on its website, social media, or other publicity?
  • Are cheerleaders, pep bands, and drill teams provided equivalently for girls’ and boys’ teams?

Importantly, OCR saw fit to expressly note that your school can accept voluntary support for teams from booster clubs, parents, and others, BUT those donations cannot justify discrimination under Title IX in your school’s benefits, opportunities, and treatment offered to its boys’ and girls’ teams. Thus, for example, if booster clubs provide support for only boys’ teams, for example, your school must ensure that girls’ teams receive equivalent benefits, opportunities, and treatment. In addition, if booster clubs provide more support to boys and girls in your school’s athletic program or vice versa, then your school must ensure that the benefits, opportunities, and treatment are equivalent for both boys and girls in its athletic programs.

OCR also provided self-auditing methods to assess whether your school is fulfilling its legal duty to meet the athletic interests and abilities of boys and girls in its student body. These options are commonly referred to as the “three-part test.” Your school has flexibility in choosing one of these options based on the best fit for its community. However, if your school does not satisfy any of these three options, it may not be meeting this aspect of its legal duty under Title IX.

Option 1: Substantial Proportionality: This option looks to whether the percentage of girl and boy participants on athletic teams are about the same as—or “substantially proportionate” to—the percentage of girls and boys enrolled at your school.

Option 2: History and Continuing Practice: This option looks to whether your school can show it has a history and continuing (i.e., present) practice of expanding its athletic program to respond to the interests and abilities of girls, if girls have been underrepresented, or boys, if boys have been underrepresented.

Option 3: Asks whether your school can show that, despite the disproportionality, it is otherwise meeting the interests and abilities of the underrepresented sex. For example, if girls are underrepresented in the athletic program, this option asks if there is enough demand, skill, and talent at your school among girls to sustain a viable team or sport, and likewise for boys if boys are underrepresented in the athletic program.

These nuanced factors are best analyzed with the assistance of counsel and in accordance with your Title IX Policy.

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Weston Hurd LLP attorneys regularly assist school districts in all aspects of school law. For further information, please contact Kathy Perrico (kperrico@westonhurd.com) or any of the education law attorneys.