Title IX Compliance – Part IV: Frequently Asked Questions

Preface
Throughout the spring of 2022, as High School Today celebrates the upcoming 50th anniversary on June 23rd of the enactment of Title IX, each monthly sports law article in the magazine will address a component of Title IX compliance for high school athletic programs with respect to the legally-mandated equal treatment of female and male student-athletes. Title IX is, of course, a broad-based statute prohibiting gender discrimination in all aspects of educational programs and activities, not merely a law governing athletics. However – for want of the space for a booklength treatment to discuss Title IX’s full application to other topics such as academic curriculum, fine arts programs, school clubs and activities, sexual harassment, hazing, bullying, and LGBTQ rights – this series of articles will address only the law’s impact on school sports programs, specifically the development and implementation of compliance strategies to avoid gender-based inequities between girls and boys teams: Part I (February) – Title IX’s Three-Prong Test; Part II (March) – Title IX’s 11 Areas of Athletics Benefits & Opportunities; Part III (April) – Title IX’s Definition of a Sport; and Part IV (May) – Frequently Asked Questions About Title IX Law. Following the conclusion of the four-part series, compile a comprehensive guide to compliance for your athletic program here.

The Title IX Compliance Framework
In the HST February 2022 issue’s sports law article, the following Title IX Compliance Framework providing an overview of all of the sources of Title IX law was set forth as a tool that could be used by school and athletic administrators as the infrastructure to conduct a self-audit to determine whether school’s sports programs were in compliance with the law:

TITLE IX COMPLIANCE FRAMEWORK

COMPONENT I: SPORTS PARTICIPATION OFFERINGS
A. Participation Opportunities – The Three-Prong Test

• Substantial Proportionality or

• History & Continuing Practice of Program Expansion or

• Full & Effective Accommodation of Athletic Interests

B. Levels of Competition – The Two-Prong Test

• Equivalently Advanced Competitive Opportunities or

• History & Continuing Practice of Improvement

COMPONENT II: FINANCIAL AID FLOWING TO ATHLETES

COMPONENT III: OTHER ATHLETICS BENEFITS/ OPPORTUNITIES

P - L - A - Y - I - N - G - F - A - I - R

The February article explained the nuances of Component I of the Framework and the application of both the Participation Offerings “three-prong test” and the Levels of Competition “two-prong test.” Component II of the framework, the analysis of whether any financial aid related to athletics is being distributed on an equitable basis, typically is relevant only in college-level Title IX disputes and is rarely an issue in high school cases. The March article addressed the Component III and the issue of whether the “amenities” tied to sports participation are being allocated fairly, specifically the 11 categories referred to by the OCR and federal courts as the “laundry list” (the benefits represented by the acronym PLAYING FAIR). The April article dealt with the definition of a sport – the types of interscholastic activities that may be classified as a sport and the specific criteria used by the OCR and federal courts to assess whether an activity qualifies as a sport for purposes of Title IX compliance.

This article addresses 15 of the most Frequently Asked Questions (with answers) posed by school and athletics administrators regarding the Title IX Compliance Framework.

Frequently Asked Questions
FAQ: Who enforces Title IX?
Answer: The United States Department of Education’s Office for Civil Rights is the Federal agency empowered to enforce Title IX. The Federal courts also play a significant role in enforcing Title IX. States often have gender equity laws of their own which are enforced by state departments of education, state human rights agencies and state courts.

FAQ: How do we know if our school is presently in compliance with Title IX?
Answer: It is essential that schools perform their own internal assessments to evaluate whether they conform to the Title IX standards which are set forth in the 2022 HST February, March, April and May articles on Title IX compliance. It would also be useful to have school and athletics administrators complete both the NFHS Learn Title IX course (www.nfhslearn.com) and the NIAAA Legal Issues course LTC 506 which covers Title IX (www.niaaa.org).

FAQ: Our school sponsors an equal number of sports for girls and boys. Does this mean that we are automatically in compliance with Title IX?
Answer: No. Title IX requires an analysis of overall equivalence of opportunity to participate in sports that is much more complex than mere equality in the number of sports offered.

FAQ: How do we determine if our school is “fully” and “effectively” accommodating the athletics interests and abilities of our female students?
Answer: One option is to use a written survey, completed by the girls enrolled at your school, to identify any areas of unmet athletics interests. A second possibility is to review non-scholastic sports programs, including intramurals, club sports, physical education course activity areas, community sports programs and other area recreational sports programs to assess any trends in girls sports interests. A third option might be to review what other schools, leagues and state associations in your school’s geographic area are doing to meet the growth and trends in athletics interests of their female students.

FAQ: Can we call the OCR to ask questions regarding whether our school is in compliance with Title IX?
Answer: Yes. Part of the OCR’s mission is to provide technical assistance to educational institutions and the OCR encourages schools to contact their regional offices to ask questions or to receive assistance regarding Title IX compliance (visit www.ed.gov/OCR to find the location of and contact information for the closest regional office). OCR also provides extensive support materials on the website.

FAQ: Does Title IX require that 50 percent of our athletic budget be spent on girls programs and 50 percent be spent on our boys programs?
Answer: No. The key to allocating financial resources under Title IX is the overall impact of expenditures – does your school’s allocation of financial resources provide equivalence of athletics opportunities and benefits to boys and girls. Although this will result, in most cases, in an approximate 50-50 budgetary allocation, Title IX does not require a strictly proportional division of dollars.

FAQ: Our school’s athletic budget is divided equally between boys and girls programs, but booster clubs for boys teams often provide extra benefits that are not provided to girls teams. Is this a violation of Title IX?
Answer: Maybe. Schools must ensure that, in an overall sense, considering all athletic programs as a whole, that comparable benefits are provided to boys and girls. Financial resources from outside sources such as booster clubs, donors, fundraising activities and corporate sponsors must be included in this evaluation, therefore, the school must take care to monitor and ensure that the outside funds do not create an imbalance between boys and girls teams.

FAQ: Can a coach file a Title IX complaint with the OCR?
Answer: Yes. Coaches, players, parents and other third parties (e.g., advocacy groups) may file a Title IX complaint with the OCR.

FAQ: Does Title IX require that we hire women to be the coaches for our girls teams?
Answer: No. Despite the desire by schools for purposes of mentorship, role modeling and diversity to have women coach girls sports teams, the Title IX mandate is for female student-athletes to have access to a quality of coaching comparable to that provided to male players. The relevant criteria are the expertise, experience and success of coaches, not their gender. It is also important to note that a variety of Federal and state employment laws exist that are separate and distinct from Title IX and which make it clear that schools may not discriminate on the basis of gender in the recruitment and hiring of coaches.

FAQ: Our school has one coach of a girls team who has filed several complaints with the OCR because of frustration with his team’s budget and the belief that his team was not receiving its fair share of financial resources in comparison to boys teams. Can we fire him for filing the complaints with the OCR?
Answer: No. Retaliation by a school against a coach, administrator or any employee for filing a Title IX complaint is unlawful based on Supreme Court precedent, federal law and numerous state “whistle-blowing” statutes.

FAQ: Our school provides cheerleaders, a pep band, a drill team and other entertainment activities at all home boys basketball games, but only for three or four girls home basketball games each year. Is this a Title IX violation?
Answer: Probably. This would be evaluated by the OCR as part of the “Other Benefits” category dealing with marketing and publicity. Unless some counterbalancing extra benefits are being provided to the girls team (e.g., some other forms of marketing and publicity), then a violation is probably occurring, and corrective action needs to be taken.

FAQ: Our school offers soccer for boys, but not for girls. Does Title IX require that we allow girls to play on the boys team?
Answer: Title IX requires that in sports where a girls team is not offered, girls must be allowed to try out for the boys team and participate on the same basis as boys. This does not mean that a girl automatically gets to be on the team. She has to try out and make the team on the same basis as any boy would have to try out and make the team. She can also be cut from the team, but only on the same basis as a boy could be cut from the team – for an objectively verifiable lack of ability or a lack of size, strength, skill and experience making participation unsafe.

FAQ: Our school offers volleyball for girls, but not for boys. Does Title IX require that we allow boys to play on the girls team?
Answer: No. Although there have been a few, isolated lawsuits where boys have obtained injunctions to allow them to participate on a girls team for which their schools offered no same-sport equivalent for boys, the courts generally rule that the purpose of Title IX is to remedy past inequities of athletics opportunity for the historically under-represented gender – females – and that if boys are allowed to participate on girls teams, they will because of height, weight and strength advantages come to dominate the membership of those teams, and thereby decrease the competitive opportunities for women. Therefore, in the vast majority of cases, the courts have not permitted boys to play on girls teams, even if there is not a same-sport boys team.

FAQ: Our school offers a boys varsity soccer team, but only a girls club soccer team. The school’s justification is that there is not enough money in its athletic budget to upgrade the girls team to varsity status. Is this a Title IX violation?
Answer: It depends. Assuming that there has been a request for the girls club team to be upgraded to varsity level, that adequate competition for a varsity girls team exists, and that girls are unlikely to be able to successfully try out and play for the boys team, a violation may exist. If participation rates at the school are not already “substantially proportional,” then failure to upgrade the club sport may constitute a failure to “fully and effectively accommodate women’s athletics interests and abilities.” Furthermore, budget constraints are not a valid excuse which will justify a lack of equivalent participation opportunities for female students.

FAQ: Our high school varsity basketball games are scheduled as doubleheaders with the girls games always played first and the boys games in prime time. Is this a Title IX violation?
Answer: Most likely yes. Many schools are resistant to switching to a format where the boys team and girls team each play the first game of the doubleheader one-half of the time, arguing coaches’ preferences or that the girls enjoy playing their second half before an expanding crowd as it arrives for the boys game. Schools that have made the change have generally discovered that as fans adjust to the “alternating” format, most of the crowd from an earlier-played boys game stays to watch the girls game. Furthermore, the implicit message communicated by this scheduling arrangement is that the school considers its girls sports teams to be just as important as its boys teams. In numerous OCR complaints and federal lawsuits, the agency and courts have ruled that schools must allow girls teams to play in the “primetime” slot on a basis equivalent to boys teams and that if doubleheaders are not played, girls teams must be permitted to play on “prime nights” (Fridays and Saturdays) on a basis equivalent to boys.