Schools around the country are facing increasing demands that they fully comply with Title IX’s obligation that they offer equal athletic opportunities for girls and boys. A district in Utah has been sued by a group of girls seeking to force the high school to add a girls’ football team. A school in Alabama recently settled a lawsuit claiming that the district treated male athletes better than females. Chicago Public Schools is still struggling to comply with a 2015 settlement with the Office of Civil Rights that required the district to add 12 girls’ sports. For administrators and board members, the echoes of some Title IX presentations should start to rattle around your thoughts.
School leaders know they should take Title IX into consideration when they make decisions about school sports, t, but don’t feel confident that their schools are (or are not) complying with Title IX. But, it doesn’t have to be this way! Schools can take advantage of the safe harbors that are available and analyze their Title IX compliance in offering equal athletic opportunities.
Knowing where you stand—and making informed decisions—is always more prudent than guessing on your compliance. Even if your district is not currently considering program changes, expansions, or co-ops, your Title IX compliance obligation is ongoing. Assessing your compliance on a routine basis is not only a good idea, it’s legally required. As you’ll see below, even if things have been going well, factors outside of your control like enrollment demographic shifts and changes in students’ interests affect your compliance in real time.
Title IX prohibits education institutions that receive federal financial assistance from discrimination “on the basis of sex.” . One consequence of Title IX is that public schools must provide equal athletic opportunities for both boys and girls in interscholastic, club, or intramural activities. 34 C.F.R. § 106.41(c). The federal government has articulated three separate “safe harbors” that schools can use to demonstrate that they are effectively accommodating the interests and abilities of both boys and girls. A school can demonstrate compliance by showing:
The athletic participation opportunities for boys and girls are provided in numbers substantially proportionate to their respective enrollments; OR
The school’s history and continuing practice of program expansion is demonstrably responsive to the developing interest and abilities of the underrepresented sex; OR
The interests and abilities of the underrepresented sex have been fully and effectively accommodated by the present program.
By satisfying just one of these independent tests, schools can show that they are compliant. There is no priority for one factor over another, but most often the analysis in court cases and OCR investigations focuses on the proportionality prong. In our experience, analyzing whether your school is providing substantially proportionate athletic opportunities to both boys and girls is a good, objective place to start. However, if that analysis reveals that one sex is underrepresented, we recommend next examining whether a school’s sports programs are effectively accommodating the interests and abilities of the underrepresented sex.
We have assisted many school districts in analyzing their Title IX compliance in athletic opportunities under these tests.. We can help you identify the relevant information, analyze your current proportionality, and provide advice on your Title IX compliance. We can also help you anticipate how a certain decision that you may be considering (e.g., whether to add or drop a team, change roster spots, co-op with a neighboring district, etc.) might affect your Title IX compliance. If you are interested in knowing where you stand—and gaining the ability to make informed decisions for your school sports—contact the attorneys at KSB School Law at (402) 804-8000 or ksb@ksbschoollaw.com