1. TITLE IX: WHAT IS IT?

Title IX is the portion of the Education Amendments of 1972 that prohibits gender discrimination in educational institutions that receive federal funds, either directly or indirectly. In brief, Title IX states that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

Title IX covers three major areas of high school and college athletics: athletic financial assistance, effective accommodation of student interests and abilities and other program components.

The statute itself does not expressly refer to athletic programs. However, the debates in the House of Representatives and in the Senate preceding passage of the bill, indicate that Title IX was intended to apply to intercollegiate and interscholastic athletic programs.

Congress enacted Title IX of the Education Amendments on June 23, 1972. The deadline for elementary schools to comply with the Title IX athletics regulations was July 1976. High schools and colleges had until July 1978 to come into compliance. Title IX Regulations were originally issued in June 1975 (see Appendix, #1). On December 11, 1979, the Department of Health, Education and Welfare issued its Title IX Policy Interpretation on intercollegiate athletics, which further outlined the manner which the federal government would enforce Title IX (see Appendix, #2).

In 1980, the Department of Education was established as part of the restructuring which followed the elimination of the Department of Health Education and Welfare. The Department of Education was assigned the responsibility for overseeing the enforcement of Title IX through the Office of Civil Rights ("OCR"). In 1990, OCR published an Athletics Investigator’s Manual which sets forth the compliance standards to be applied and procedures to be used when the OCR conducts an investigation of a school. The manual is very detailed and sets forth the precise format for an OCR audit.

In 1996, OCR issued its Title IX Policy Clarification which refines and explains the manner in which it will evaluate the Three-Prong-Test used in determining compliance. This test has created much confusion for schools and has been the subject of much of the litigation filed under Title IX. Likewise, the Equity In Athletics Disclosure Act was enacted in 1996. While this Act requires disclosure of gender equity information at the intercollegiate level, it does not apply to high schools.

In 1972, approximately 294,000 females participated in interscholastic athletics (approximately one out of every 27 high school girls). By 1995, this participation had increased to approximately 2,240,000 (approximately one out of every three high school girls). During this same period, boys’ participation in interscholastic athletics decreased by over 100,000. (see Appendix, #3)

As a general rule, Title IX applies to the overall athletic program of a school, not to specific teams. Title IX also applies to intramural sports, physical education courses and other school-sponsored athletic programs. For all of the program components (except financial aid), the basic test of compliance is equivalence. That is, the benefits, opportunities and treatment of each sex must be equal or equal in effect. To determine if differences are caused by discrimination, the OCR looks for a "disparity" between the men’s and women’s programs. A "disparity" is defined as a difference, on the basis of sex, in benefits or services, that has a negative impact on athletes of one sex when compared with benefits or services available to athletes of the other sex.

The OCR’s Title IX Athletics Investigator’s Manual instructs investigators to determine if there is a disparity in each area and to consider the significance of each disparity. The investigator compares the disparities favoring the entire men’s program with those favoring the entire women’s program. The manual states, "If the disparities are greater for one sex than the other and the difference results in lack of equal opportunity for one sex, then an overall finding of noncompliance is made.

The first component of Title IX is effective accommodation of athletics interests and abilities.

The three-pronged test provides alternative means of compliance with the participation opportunities requirement of Title IX. An institution subject to Title IX need satisfy only one of these prongs in order to comply.

First, a school may provide athletic participation opportunities for female students which are substantially proportional to the female percentage of enrollment at the school. This first prong of the three alternatives requires only "substantial proportionality," not strict proportionality. The law recognized that strict proportionality is not feasible standard by which to measure adequacy of participation opportunities. However, neither the regulations, the OCR nor any court has defined a clear rule setting a definitive percentage. (see Appendix, #4)

Alternatively, a school may demonstrate a history and continuing practice of expanding its sports offerings for women in the recent past. Even if a school is unable to establish substantial proportionality, it will be considered in compliance with Title IX if it can demonstrate a history and continuing practice of expanding its sports offerings for women. The factors considered in making this determination are:

A school’s recent history and continuing practice of adding women’s teams;

A school’s recent history and continuing practice of upgrading teams to varsity

status;

A school’s recent history and continuing practice of affirmatively responding to

requests for adding or upgrading teams; and

A school’s recent history and continuing practice of monitoring developing

interests of women by conducting surveys (see Appendix, #5)

Finally, a school may show that it is fully and effectively accommodating the athletic interest and abilities of the women in its student body.

"This interpretation does not require a school to provide a varsity team every time some female students are interested in a sport. It does mean, however, that opportunities must be provided when there is sufficient interest and ability among the underrepresented sex to sustain a viable team and a reasonable expectation of competition for that team."

(see Appendix, #6 & #7)

The key to compliance with this third prong of this test is establishing that participation is "full" and "effective." The burden is on the school and its athletic administrators to determine whether there is any unmet athletics interests on the part of the female enrollment. This involves developing some assessment tool to measure women’s athletics interests. One possibility is to use a written survey, completed by the school’s female students and evaluated by the school’s athletic administrators, to determine any areas of unmet athletics interest (see Self-Audit Materials). A second possibility is to review non-interscholastic sports programs, including intramural, club sports, physical education course activity areas, community sports programs, and other area recreational sports programs, to assess any unmet or growing areas of sports interests for women. A third possibility is to review what other schools, leagues, conference, districts, and state associations in the school’s normal geographic area of competition are doing to meet the growth and trends in athletics interests of their female students.

The OCR generally considers an athletic participant to be someone on a team as of the first date of competition. Unfilled roster spots do not count as athletic participants. The OCR also generally holds that an athlete who competes for more than one team should be counted for every team on which he or she competes. However, this issue is subject to some debate.

The school must also determine consider what is considered as a sport for Title IX purposes. Despite arguments to be contrary, current OCR policy is that cheerleading, dance line pom squads and drill teams are not considered sports. Likewise, equipment managers, student athletic trainers, scorekeepers and timekeepers are not counted as athletic participants.

The budgets provided for male and female sports do not have to be equal. The key to allocating financial resources under Title IX is the overall impact of expenditures. However, budgets can indicate where there might be a problem, especially in areas where things do cost the same. Budget levels are especially important where the dollar limits set by the school cause unequal services.

If the men’s athletic program receives greater benefits than the women’s, the institution has three choices to comply with the mandates of Title IX. It may:

increase the benefits for the women;

decrease the benefits for the men; or

some of both.

The ability or inability of a particular team or sport to generate revenue is not a legitimate reason for failing to comply with Title IX.

Booster clubs sometimes provide benefits or services to the men’s teams that the women’s teams do not receive. The OCR Investigator’s Manual notes that a school still must make sure that equivalent benefits and services are provided to members of both sexes. Evaluation of "other athletic benefits" is not limited to those benefits paid directly by the school itself. It includes those benefits paid by booster clubs, by team fund-raising activities and by any other source. If booster clubs provide benefits to male teams, the school must make sure that the female teams receive equal benefits. If booster clubs provide benefits and services to athletes of one sex that the school cannot provide to athletes of the other sex, then the school should take action to ensure that benefits and services are equivalent for both sexes. This requirement places an administrative burden on athletic directors and school administrators because of the need to monitor the distribution of all benefits to all teams, regardless of the source of those benefits.

Another area of compliance is the relevant comparison between overall benefits provided to all women’s teams and the overall benefits provided to all men’s teams. While discrepancies in specific same-sport benefits (i.e., men’s soccer vs. women’s soccer) may indicate potential compliance problems, Title IX is intended to ensure overall equivalence in athletic opportunities and benefits, not single sport equivalence. Evaluation in this area involves a subjective balancing test. Several of the program components listed and discussed below are applicable to intercollegiate, but not interscholastic, athletic programs.

A. Equipment and Supplies

B. Scheduling of Games and Practice Times

C. Travel and Daily Allowance

D. Access to Tutoring

E. Coaching

F. Locker Rooms, Practice and Competitive Facilities

G. Medical and Training Facilities and Services

H. Housing and Dining Facilities and Services

I. Publicity

J. Recruitment of Student Athletes

K. Support Services

A. Equipment and Supplies. Equipment and supplies include but are not limited to uniforms and apparel, sport-specific equipment and supplies, instructional devices, and conditioning and weight-training equipment. Title IX applies to practice and game uniforms, shoes, and warm-up suits. Equipment includes bats, sticks, rackets and equipment set up and taken down for practice. Conditioning and weight-training equipment includes weights, water bottles, sweat-bands, braces, etc.

Generally, there are five factors to examine when determining compliance with Title IX in this area:

Quality

Amount

Suitability

Maintenance & Replacements

Availability

Some questions to consider include:

What is the condition of the equipment?

Is the equipment durable?

Is the equipment well manufactured?

How much equipment and supplies are provided?

Are the materials officially sanctioned?

Do the equipment and supplies meet regulation requirements?

How is the upkeep and repair service for the equipment and supplies?

Are the supplies and equipment always available or only available sometimes?

In assessing Title IX compliance, a school should compare the findings with the situation faced by one gender’s entire athletic program with that of the other gender. A school should also determine whether any differences are significant. Nondiscriminatory differences based on a unique aspect of a particular sport are acceptable.

Some potential problem areas to consider when evaluating equipment and supplies include:

Are males provided more equipment by the school while female athletes are required to use their own equipment?

Are men’s teams provided an overall higher quality of equipment than the women’s teams?

Is men’s equipment replaced more frequently than women’s equipment?

Are men’s teams provided with laundry services while the women’s teams required to do their own laundry?

Do men’s teams have greater access to equipment than women’s teams or do men’s teams have a priority of access to shared equipment?

B. Locker Rooms, Practice and Competitive Facilities This is one of the most common program areas in which OCR finds significant differences between the benefits provided to women’s and men’s athletic programs. In determining compliance with Title IX consider:

The quality and availability of the facilities provided for practice and competitive events

The exclusivity of use of the facilities provided for practice and competitive events

The availability and exclusivity of locker rooms

The quality of the locker rooms

The maintenance of practice and competitive facilities

The preparation of facilities for practice and competitive events

Ask the following questions:

Do any of the policies, procedures, or criteria used for assigning locker rooms, practice and competitive facilities differ on the basis of sex?

Are the men’s locker room facilities, as well as men’s rights to use them, different from the women’s locker room facilities and women’s rights to them?

Are there differences in women’s and men’s rights to use the general facilities, including the fields and the gyms?

Do women have access to the weight room or other training facilities.

Is there a significant overall difference between the facilities or playing fields provided to the women’s program as compared to the men’s program?

Do men’s teams have exclusive locker rooms while women’s teams must share?

Do visiting teams displace women’s teams from locker rooms while men’s teams have exclusive use of their locker rooms?

Are the quality and size of the women’s locker rooms significantly different from the men’s locker rooms?

Are the quality and size of the shower rooms significantly less for the women’s programs?

Are women’s teams relegated to auxiliary gyms while men’s teams have priority of access to main gyms or prime playing fields?

C. Travel and Daily Allowance. There are five factors to consider when determining Title IX compliance in this area:

The method of transportation;

The housing furnished during travel;

The length of stay before and after competitive events;

Per diem allowance provided to the teams; and

The dining allowance and arrangements provided to the teams.

Are there significantly smaller travel budgets and expenditures for women’s programs?

Do men’s teams travel by bus while women’s teams are transported by parents?

Are men’s teams allocated money to travel to distant, out-of-state tournaments while women’s teams are restricted to travel in smaller geographic regions?

Do men’s teams stay overnight after events while women’s teams must return home immediately?

Are women’s teams assigned more students per room than men’s teams?

Do women’s teams consistently stay in significantly lower quality hotels than men’s teams?

Are women’s teams provided with pre or post game meals?

D. Scheduling of Games and Practice Times. When determining compliance with Title IX, consider:

1. The number of competitive events offered per sport;

2. The number and length or practices;

3. The time of day competitive events are scheduled;

4. The time of day practices are scheduled; and

5. The number of pre-season and post-season competitive opportunities.

(see Appendix, #8 & #9)

Men’s teams have priority of choice as to preferred practice/game times.

Men’s teams are scheduled to play an overall higher percentage of maximum allowable contests than women’s teams.

Men’s teams are given greater opportunities to play in pre-season competitions or elite tournaments than are women.

Men’s teams always play during "prime time" of same sport doubleheaders.

E. Coaching. (Years of Experience, Quality, Compensation and Assignment of Coaches.)

"The OCR has combined two of the areas which are defined in the Title IX Federal regulations - opportunity to receive coaching and the assignment and compensation of coaches - into one investigative category. The focus of the OCR inquiry in this area is whether, in an overall fashion, women athletes at a school have access to the same quality and expertise of coaching as do, in an overall manner, the male athletics participants at the school."

Some questions to consider:

What are the relative number of coaches between same sport teams?

How many years of experience does the coach have and how

successful have they been?

What is their educational background?

What is the rate of compensation for same sport coaches?

Women’s teams are assigned fewer assistant coaches than same-sport men’s teams.

Women’s team coaches, overall, have less coaching experience than men’s team coaches.

Women’s team coaches are not given the same benefits (e.g., final hour planning periods, office space, support services) as men’s team coaches.

Women’s team coaches are paid, overall, disparately small stipends.

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 are Title IX complaints filed?

Answer: Complaints to the OCR must be filed in writing, clearly stating that they are a complaint, no later than 180 days after the alleged discrimination, and submitted to the OCR’s regional office for the area.

FAQ: How do we know if our school is presently in compliance with Title IX?

Answer: Each school should perform its own internal assessments to evaluate whether it is in compliance with all of the Title IX standards.

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: Does Title IX apply to intramural sports?

Answer: Yes. Title IX applies to intercollegiate sports, interscholastic sports, club sports, intramural sports, physical education courses, recreational sports activities, and any other school-sponsored athletics programs.

FAQ: Does Title IX apply to the sports-related activities at an elementary school?

Answer: Yes. Title IX applies to all sports and athletics related programs at any educational institution receiving any form of direct or indirect financial assistance, including elementary schools. Therefore, the physical education instruction which is part of the curriculum and any other recreational athletics activities at an elementary school must comply with Title IX.

FAQ: Our school’s athletic budget is divided equally between boys’ and girls’ programs, but our booster clubs provide more extra benefits to boys’ football and boys’ basketball than to any other boys’ sports or to any girls’ sports. 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. Booster club support must be included in this evaluation, therefore the school must take care to monitor and ensure that the extra booster club support does not create an imbalance between the boys’ and girls’ athletic programs.

 

FAQ: Several of our coaches and teams work very hard carrying out fund-raising activities of their own to raise extra money to but new uniforms, pay for extra equipment and finance extra team trips. If our boys’ teams raise more money with such fund-raising activities, will this create a Title IX violation?

Answer: Probably not. It is important to remember that all athletics benefits and resources, whatever their source, must be considered in evaluating compliance with Title IX. Therefore, technically, even money from team fund-raising activities and the items purchased with that money, must be considered in assessing overall equivalence between programs. Assuming, however, that the amounts from such fund-raising are unlikely to create an overall imbalance, a Title IX violation will probably not be created.

FAQ: Boys’ football and boys’ basketball players receive letter jackets which are provided by their respective team booster clubs. Other boys’ teams may purchase letter jackets. Girls’ teams receive only letter certificates. Is this a Title IX violation?

Answer: Most likely yes. This falls into the other benefits category of athletic equipment and supplies. Unless the girls’ teams are receiving some counter-balancing benefit, then if the school is going to allow the booster clubs to purchase the letter jackets for the boys’ teams, the school should find a way to finance a similar benefit for the girls’ teams.

FAQ: Our high school varsity basketball games are scheduled as girls’ varsity game-boys’ varsity game doubleheaders with the girls’ games always played at 5:00 and the boys’ games in prime time. Is this a Title IX violation?

Answer: Maybe. Again, this is only one factor within the overall assessment of the "game and practice times and scheduling" program area, but if your school’s boys’ teams are always scheduled for the more valued times than the girls’ teams, then a violation probably exists. The fact that so many schools are so resistant to switching to a format where, one-half of the time, the boys’ games are played first, says a lot about the still prevailing attitudes as to which team is the "most important." Many schools have resisted making this change because, they argue, the girls’ team enjoys playing the second half of their game before the huge crowd arriving for the boys’ game. Ironically, many of the schools which have made the change have discovered that when the girls play in prime time, most of the crowd from the boys’ game stays to watch anyway and that the implicit message communicated by the school in this scheduling arrangement that the girls’ game is an equally exciting "event" - carries over into the attitude

of the student body towards the games and towards the women’s athletics program as a whole.

A. Establish a Gender Equity Committee and Gender Equity Coordinator

B. Complete a self-audit (see Self Assessment Forms)

C. Develop a Title IX plan and time table for implementation

D. Monitor execution of the Title IX and carry out periodic reviews

The Gender Equity Committee and Gender Equity Coordinator should perform the self-audit, develop a plan of action for correcting any identified problems, monitor execution of the action plan and review compliance efforts on a regular basis.

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