New OCR Resource Documents on Supporting Equal Opportunity in Athletic Programs Under Title IX

By March 10, 2023April 30th, 2023News, The Extra Mile Newsletter

On February 17, 2023, the U.S. Department of Education Office for Civil Rights (“OCR”) released three new resource documents to support equal opportunity in athletic programs consistent with Title IX of the Education Amendments of 1972. These resources include: Supporting Equal Opportunity in School Athletic Programs: A Resource for Students and Families; Title IX and Athletic Opportunities in K-12 Schools: A Resource for Students, Parents, Coaches, Athletic Directors, and School Communities; and Title IX and Athletic Opportunities in Colleges and Universities: A Resource for Students, Coaches, Athletic Directors, and School Communities. While these OCR resource documents are new, the information contained therein is not; the documents set forth the requirements for athletic programs under Title IX and OCR’s longstanding approach for evaluating athletic program compliance with Title IX.

Title IX is a federal civil rights law that prohibits schools that receive federal funding from discriminating based on sex in their programs or activities. This includes athletic programs, including club, intramural, and interscholastic teams. With regard to K-12 school athletic programs, equal opportunity based on sex 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.

The resource document for K-12 schools provides information on the above two points and questions to consider when evaluating a school’s athletic program to determine if it offers equivalent benefits, opportunities, and treatment to its boys and girls teams overall. The K-12 resource document identifies the following areas to look at: equipment and supplies; scheduling games and practice time; travel and daily allowance; coaching; locker rooms and fields, courts, or other facilities for practice and competition; medical and training facilities and services; and publicity. Answering “no” to any of the questions could indicate a Title IX violation. However, as noted, OCR considers many factors, including but limited to the sample questions in the resource document. OCR also considers whether a school has a non-discriminatory reason for any difference in the benefits, opportunities, and treatment in boys’ and girls’ teams (e.g., differences based on unique aspects of a particular sport).

Additionally, the K-12 resource document emphasizes that while a school can accept voluntary support for athletic teams from booster clubs, parents, and others, such support cannot justify discrimination under Title IX. That is, if a booster club provides more support for boys’ teams than girls teams, or vice versa, the school must take steps to ensure that the benefits, opportunities, and treatment are equivalent for boys and girls within its athletic program.

The K-12 resource document also outlines OCR’s longstanding approach to evaluating whether a school’s athletic program complies with Title IX. A school may choose one of three ways to demonstrate it is fulfilling its legal duty to meet the athletics interests and abilities of boys and girls in its student body. If a school fails to satisfy any of the three options, it could indicate a Title IX violation.

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

Option 2: History and Continuing Practice. This option looks at whether a school can demonstrate that 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. (Note: A school may not use this option if girls are under-represented and the school has not added or expanded teams for girls or added girls to existing teams since the early years of its girls athletic program. It also is not available to a school that cut or capped boys’ teams without adding or expanding teams for girls.)

Option 3: Interests and Abilities of Students. This option looks at whether a school can show, despite disproportionality, that it otherwise meets the interests and abilities of the underrepresented sex.

Finally, the resource documents provide information on how to file a complaint with OCR regarding concerns about a school’s unequal athletic opportunities based on sex. A complaint can be filed by a student, parent/guardian, employee, or member of the school community. Remember that schools must provide notice of the Title IX Coordinator’s contact information via student and employee handbooks and on the school’s website.

For questions concerning Title IX, including the new OCR athletic program resource documents, please contact Jennifer Rosenberg or any attorney in the Students & Special Education Practice Group.

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