by CUPA-HR | March 1, 2023
On February 17, the Department of Education’s Office for Civil Rights (OCR) issued three resource documents on Title IX compliance for school athletic programs. The first resource document covers support for equal opportunity in school athletic programs generally, while the other two cover Title IX and athletic opportunities at K-12 schools and colleges and universities separately.
According to the OCR, these documents were designed “to help students, parents, coaches, athletic directors and school officials evaluate whether a school is meeting its legal duty to provide equal athletic opportunity regardless of sex,” and they provide examples of situations that may mean a school is not complying with Title IX requirements. The guidance does not make any changes to existing enforcement procedures for the OCR, rather, it is intended to be used by institutions to ensure that their existing protocols and programs are compliant with Title IX.
Supporting Equal Opportunity in School Athletic Programs
The first resource document reiterates Title IX’s prohibition of discrimination on the basis of sex in education programs and activities, including athletic programs, that receive federal funds. It states that Title IX requires schools to effectively accommodate the athletic interests and abilities of their students regardless of sex, and provide equal opportunity in the benefits, opportunities and treatment provided for their athletic teams. It also clarifies that Title IX requires colleges and universities to not discriminate on the basis of sex in the provision of any athletic scholarships or financial assistance to students.
The resource document included four examples of situations that may surface Title IX concerns at colleges and universities, which are listed below:
- The men’s teams at a college receives new athletic apparel and gear each year, while the women’s teams must use old apparel and purchase some of their own equipment.
- Across its entire athletic program, a college awards disproportionately more athletic financial assistance to men than women.
- A university provides funds for its coaches to recruit athletes for its men’s football and basketball teams because it considers those teams to be “flagship sports.” It provides no funds for coaches to recruit women athletes. As a result, the school has difficulty attracting women to participate in its athletic program.
- Women are underrepresented in a university’s athletic program compared to their representation in the student body. The university would have to offer 54 additional spots for its women students on existing or new teams for women to have substantially proportionate athletic participation opportunities. Women have expressed an interest in having more teams, and there are women students participating in club sports for which there are no varsity teams. Those club sports include lacrosse, water polo, ice hockey and bowling — all of which have intercollegiate competitions available and are sanctioned by the athletic governing body the university belongs to. Yet, the university has not added a women’s team for many years.
Title IX and Athletic Opportunities in Colleges and Universities
The resource document designed specifically for institutions of higher education dives deeper into background information on Title IX, as well as ways that students, coaches, athletic directors and school officials can evaluate a school’s athletic program and whether it’s meeting its legal requirements to provide equal athletic opportunity. With respect to the evaluation, the document guides readers with questions and examples of Title IX compliance with respect to the benefits, opportunities and treatment for men’s and women’s teams; athletic scholarships and financial assistance, and meeting students’ athletics interests and abilities.
Benefits, Opportunities and Treatment for Men’s and Women’s Teams
With respect to equivalent benefits, opportunities and treatment for men’s and women’s teams, the resource document lists several questions about an institution’s attempts to provide equal opportunities to both men and women student-athletes. These questions surround the following topics:
- Equipment and supplies
- Scheduling games and practice time
- Travel and daily allowances
- Coaching
- Academic tutors
- Locker rooms, fields, courts and other facilities for practice and competition
- Medical and training facilities and services
- Housing and dining services
- Publicity
- Recruitment
The resource document explicitly states that if any of the questions listed under these topics is answered as a “no,” it may indicate a possible Title IX violation.
Athletic Scholarships and Financial Assistance
The document also creates questions that may be used to assess a school’s provision of scholarships and athletic financial assistance. The questions help guide users to measure the percentage of women and men participants at their institution and the percentage of scholarship awards provided to women and men, and it lists questions and examples to help compare these percentages. These questions may again point to disparities among programs that could be potential violations of Title IX, but the OCR states that it “will take into account all legitimate, non-discriminatory reasons for disparities provided by the school” if there are disparities present between percentages awarded to men’s and women’s programs.
Meeting Students’ Athletic Interests and Capabilities
The resource document refers to the “three-part test” that institutions may use to demonstrate that all Title IX legal requirements are being fulfilled. Schools are only required to use one of three options to show compliance with Title IX, which are detailed in the document and briefly listed below:
- Option 1: Substantial Proportionality — This option looks to whether the percentage of women and men participants on athletic teams are about the same as, or “substantially proportionate” to, the percentage of women and men enrolled as full-time undergraduates 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 women, if women have been underrepresented, or if men have been underrepresented.
- Option 3: Interests and Abilities of Students — This option asks whether your school can show that — despite the disproportionality — it is otherwise meeting the interests and abilities of the underrepresented sex.
The resource document states that following longstanding practice for showing Title IX compliance — if an institution is unable to use any of the three options to show compliance with Title IX — may not be meeting legal requirements to provide equal opportunity to participate in athletics based on sex under Title IX.
Options for Filing Complaints for Title IX Violations
Both the general support and higher education-specific documents end their guidance with ways in which students, parents, employees and others in the school community may file Title IX complaints through their school’s grievance procedures if they believe their institution is not providing equal athletic opportunity based on sex. The documents first turn readers to their institution’s Title IX coordinator, but also provides the option to file a complaint online with the OCR. It also clarifies that anyone is able to file complaints with the OCR, which may include individuals outside of the school community.
CUPA-HR will continue to monitor for any updates to Title IX compliance and will keep members apprised of any updates with respect to Title IX law and regulations.
