Season 3: Episode 7: School Sports and Title IX

The term “sex-based discrimination” may bring to mind harassment, exclusion, or various unwarranted assumptions about boys and girls. But did you know that Title IX applies also to equity in school sports, including non-discriminatory participation opportunities for male and female students? And what does equity in school sports mean, anyway? If your district or university has a football team for men, must you have a football team for women as well? How can a district show compliance with Title IX regulations if only some students are interested in a particular sport? What does the Office for Civil Rights look at when investigating this particular type of Title IX complaint?

For an in-depth look at these and other questions, join Lisa Woloszynek, Miriam Pearlmutter, and Ben Chojnacki to talk about the athletic provisions of Title IX and what these mean for your school’s athletic department and programming. This episode also addresses single-sex classes and activities in light of guidance issued by the Office for Civil Rights.

View Podcast Transcript


Miriam Pearlmutter: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa Woloszynek: I’m Lisa.

Miriam: We are attorneys at Walter | Haverfield in Cleveland, Ohio. Every so often, we get together and we talk about education law. We talk about the latest legal developments that are relevant to school boards, administrators, teachers, anybody who works with kids in the schools.

Lisa: Today, we are going to continue our discussion about Title IX, and how that impacts school districts as well as universities. We previously focused on the discrimination key to that in looking at harassment, sexual violence, sexual assault, and some of the controversial things going on in the trajectory of those laws. Today, we’re going to switch gears to talk about in more depth of sports and what that looks like with Title IX. We also have our colleague Ben, joining us again today. Welcome back, Ben.

Miriam: Thanks for coming back!

Ben Chojnacki: Hey, glad to be here! Thanks for having me.

Miriam: Ben, out of all the issues that we talked about last time, sexual harassment and violence like Lisa mentioned. I think we also touched upon transgender. We’ll talk more about that next time. Those are all relatively recent developments. I feel like the initial controversy over Title IX was focused on school sports and athletics, especially at the university level. Is that what you recall?

Ben: Yes, that’s generally correct. Sports was in the first areas that caused controversy. If the general population was prepared in the ’70s for equal treatment in academics, in the environment of athletics, so outside of the classroom and under the sport pitch, whatever you might call it. The United States and schools were not prepared to provide equal opportunity yet, so really–

Miriam: That became controversial, almost right away, I would say.

Ben: Correct. In 1973, Congress formally included athletics under Title IX.

Lisa: Because previously it didn’t mention athletics specifically at all, right?

Miriam: The statute does not say anything about sports.

Ben: No. Let’s go back to the statute that was passed in 1972. That statute says, no person in the United States shall on the basis of sex be excluded from participation in, be denied the benefits of or be subject to discrimination under any education program or activity receiving federal financial assistance. The key words there are education program or activity. When Title IX was passed, and shortly thereafter, much with any federal law, you’ve got corresponding federal regulations that are likely to be implemented.

One of the instructions when Title IX was passed, was there needed to be regulations dealing with athletics. The Code of Regulations that inform and supplement the statute that is short, like we’ve read right, governs all the different aspects of Title IX. One of the major ones is there’s a provision that speaks to athletics. There’s other ones that speak to what is an educational activity, that talks about extracurricular activities, occupational activities, things like that, that the school’s providing, but there are specific provisions that speak to athletics.

Miriam: In other words, sports is considered part of the educational benefits that a school district or university provides?

Ben: Correct.

Miriam: Is it correct to say that Title IX, the athletic provisions that we’re going to talk about today, that applies not only to colleges and universities but also to K-12 districts?

Ben: It does. That is 100% correct.

Lisa: Okay. When you were talking about Congress formally, including athletics, since then, it’s gone as far as to outline some ways to demonstrate compliance, correct?

Ben: Yes, to put a finer point on it, Congress instructed the Department of Education in ’72 to articulate regulations that would govern athletics. You have a regulation governing athletics, and through that regulation, the Office of Civil Rights has articulated a test to assist in determining whether you’re adhering to the dictates of Title IX as it relates to athletics.

Miriam: In 2019, what does a school university have to do in order to comply with Title IX requirements as it relates to sports and equality in sports to the programs? Do the programs actually have to be equal, every school district has to have the exact same athletic programs for women as it does for men?

Ben: There’s a practical problem you have to consider. That’s that we don’t have 50/50 populations. There’s not 100 men or 100 women. That’s not how it works. The interpretations of Title IX are designed to account for the fact that there’s different enrollments, different interest in population of the student body. Those guidelines are the markers that you can use to figure out as an institution whether you’re complying with Title IX. In 1979, there was a provision that articulated a three-test that an institution could follow and meet and satisfy in order to ensure that their athletic activities were complying with the requirements of Title IX.

Miriam: A school district or university has to meet one of these tests?

Ben: Correct.

Miriam: Is that right? Okay.

Ben: The test basically it’s a three-part test to determine whether an institution is providing nondiscriminatory athletic participation opportunities. Your first option is, does your intercollegiate level participation opportunities for male and female students? Are they provided in numbers substantially proportionate to respective enrollment in the institution? That’s the first test. You’re looking at a substantial proportional analysis.

Lisa: If you have 50 females and 100 males, you’re looking at a 1:2 ratio of sports available?

Ben: Correct. The devil really is in the details on that. Candidly, when you look at Title IX litigation, oftentimes, whether the institution is meeting that substantially proportionate requirement is one of the key issues that’s often litigated. The question is if we have a 55% female student body, but 44% of our athletes are female, is that substantially proportionate? The courts might weigh yes or no, but that is the threshold issue that the court will often have to address is how is that being accounted for and how is substantially proportionate defined?

Miriam: I’m sorry, Lisa.

Lisa: No, that’s actually where I was going to go too. Do schools have to look at what say a female is interested in versus a male. Like, if you have a football team for men you have to have a football team for women?

Ben: Yes or no. The sports-specific opportunities are not as clear cut. Let’s go through all three tests before we come to that.

Lisa: Fair enough.

Ben: Because interest is a key threshold, but it’s in the third way you can satisfy the Title IX tests. The first one is the substantially proportionate test. That test is again, what does substantially proportionate mean? I don’t know. The courts going to figure it out, or OCR is going to figure out.

Miriam: Numbers.

Ben: Yeah. It’s numbers you’ve got to figure it out. You need to work with your legal counsel. If you’re going to cut funding or you’re going to cut programs, that’s a consideration you need to be aware of. The second test that you can satisfy as an institution is where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and a continuing practice of program expansion, which is demonstrably responsive to developing interests and abilities of the members of that sex.

Miriam: Like we’re growing, we’re getting there.

Ben: Yes, we’re getting there. What you’re trying to account for is, let’s say you used to be an all-male school. You’ve recently merged and you’ve got a female school alongside and you’re together now. You’re showing that, okay, we had “X” number of male participants and “Y” number of female participants. We’re merging towards this-responsive allocation of resources.

Miriam: Resources.

Ben: And individuals and interests.

Lisa: Recognizing that overnight schools aren’t going to be able to just put together and say if we need five more females teams tomorrow, that will support them?

Ben: Correct. Yes, it’s a process. The challenge in 2019 is that it’s been a process since 1972. If you’re not up with that process, you might want to look at another test to try and satisfy because that is a real issue. The interest piece gets really interesting because there are sports, so football’s kind of the big example where you’ve got a team of 60 guys or men and certainly, it can be open to females to participate on the team, but it’s predominantly a male sport. You need to have a corresponding female sport that provides for some number of roster spots.

Lisa: That might be a completely different sport?

Ben: Correct. Oftentimes, you’ll see football paired with another volume-based team. Those can, on some level balance themselves out. Then you’ve got a funding issue you have to consider as well because some sports are more expensive than others.

Miriam: It doesn’t have to be exactly equal, it just has to be equivalent.

Lisa: Like football to volleyball, right?

Miriam: Really, is that a good example…. football?

Ben: Yes and no. You’re going to have a lot more football players than volleyball players. It’s got to be football and volleyball plus something else. I don’t want to get into the nuance too much because it is an institution-specific decision you have to make, but there’s also seasonal considerations, facility considerations and other accommodations for scheduling and things like that that need to be accounted for.

Lisa: Is there another test that works better for schools?

Ben: It could work better depending on the school. The third test is where you have members of one sex underrepresented among intercollegiate athletes and the institution cannot show a history and continuing practice or program and expansion, whether that can be demonstrated that the interests and abilities of the member in that sex had been fully and effectively accommodated by the present programs.

Miriam: There’s, everybody’s happy with what we have. Is that?

Ben: Exactly, yes. Again, the threshold question is there’s a term, the term of art like substantially proportion in the other test. Here, we’ve got fully and effectively accommodated. How do you fully and effectively accommodate the interests of both sexes? That challenge is something that you’ve got to work with legal counsel on to undertake and determine whether you’re being consistent with what your student populations, interests and abilities are.

Miriam: I think I read somewhere, I don’t know if this is still the case, but I think at some point historically, schools were allowed to use that prong by just doing a survey. So you give out a survey and then everybody says, “Yep, we’re good, everything’s good!” and then you’re kind of done, but I’m not sure if that’s still….

Ben: So the survey was a way that you could account for and determine whether you were fully and effectively accommodating the interests and abilities of both sexes.

Lisa: What from a practical standpoint, does this look like if OCR is investigating a district or university? They’re not just going to be in compliance because they have a female team and a male team. They need to apply funding and do look at other benefits for their analysis. Correct?

Ben: Correct. You’re right on. The OCR is going to look at whether the institution, the school is providing equivalent, not identical, athletic participation opportunities and athletic benefits and treatment. In the athletic participation opportunities context, the school’s got to provide equal athletic participation opportunities for both sexes, and must effectively accommodate the students’ athletic interests. That determination by OCR, as well as the selection of sports offers levels of competition available, are certainly going to be things that can be considered. You see a lot of litigation and it’s not directly related to the OCR decision, but it is related to the Title IX world where you’re talking about is the provision of a club team, the equivalent of a varsity sport or the demotion between the two. Or if the softball team practices on a field that’s 10 minutes off campus, compared to the baseball team that’s practicing next to the track field which is right next to the locker room, which is attached to the school. Those types of opportunities are really going to be something that is considered and separately and again, they run together. The other is benefits and treatment and there’s 10 different components OCR does look at to determine if the schools complying with providing athletic benefits and treatments. They’re looking at the selection of sports and competition levels and making sure they effectively accommodate the interest and abilities of both sexes. They’re looking at the equipment and supplies provided, your baseball team can’t have new jerseys every three days while the softball teams wearing the rags from Goodwill. They’re looking at game scheduling and practice time. Oftentimes, like in basketball, for example, you’re dealing with situation where oftentimes, there’s one court with all the school practice that to give priority scheduling to the men’s team all the time. Or to give priority scheduling to women’s team all the time immediately after school and requiring the other team to wait around for two and a half, three hours. It’s not equal treatment. Travel and per diem allowances are considered, coaching and academic tutoring opportunities are considered. Compensation and assignment for coaches and tutors are in the men’s team is got six tutors on a staff designed to make sure that everyone is passing grades and females team doesn’t have that, you’re looking at the same problem.

Miriam: Just it sounds like all these factors are things that make it easier for women to participate on sports teams versus things that might make it less desirable.

Ben: There’s a historical background of that that’s really informing all of this. The idea is that what came first? The chicken or the egg? The arguments always been from proponents of we’ll say less equal treatment has been that well, men are more interested in women in sports. The corresponding rebuttal to that is well perhaps they’re more interested in sports because the men get the better facility, they get the preferred time they get the nice locker room gym, whatever the case might be.

Lisa: And have been more readily available historically too.

Miriam: That makes sense.

Ben: Correct. Nobody wants to go play in a baseball field filled with rocks. Nobody wants to play in a softball field filled with rocks either. The regs are designed to ensure that to the extent that that used to be the way things were when Title IX was first passed in 1972, if you’re still dealing with that problem, you need to address it because if not, you’re not treating everybody equally and that’s where their problems arise.

Lisa: Are there any key takeaways from the court cases that are out there that our listeners should be aware of?

Ben: Yes, without getting too much into the details, there is a seminal case generally that stands for the proposition that, well, there’s two of them, but they both articulate the proposition that not only do these benefits apply in the higher education context, but they also apply to K-12 level. What you need to be aware of is you as a school board are subject to Title IX’s athletic requirements. You as a school board are subject to ensuring that your athletics department is scheduling games in a manner that’s consistent with the dictates of Title IX. There are a number of other cases, generally, big-picture without giving you specifics. One of the disputes that often arises in a different context. We’re talking about funding cases, we’re talking about issues of how much funding and what happens when an institution is eliminating or expanding programs. A lot of times what happens is as an athletics department, you’re looking at your budget and you’re saying, “Okay, Title IX requires me to have substantially proportionate number of men and women’s sports.” When you’re looking at that as a practical matter, oftentimes, the choices to get to that substantially proportionate level, you either have to cut some men’s programs or increase the number of female programs here. From a practical standpoint, you run into a real problem there because there might not be enough money to pay for the expansion of your female or women’s sports program.

Lisa: While keeping all your male ones.

Ben: Exactly. What happens is you’ll run into a situation where the institution makes the decision. We’re going to cut these sports programs. Sometimes depending upon the case and depending on the administration’s decisions, they make a wholesale cut of the men’s programs or they do a blended, we’re going to cut men’s wrestling, men’s swimming and one other men’s sport and we’re going to cut one woman sport as well to get the numbers as close as they can. Oftentimes, you’ll see that in action for injunctive release basically someone runs the court and says, “Wait, stop. We need to preserve the status quo while we resolve this issue.” A lot of the litigation though it’s not common but the reported decisions, the sexy cases often are those types of cases where you’re dealing with the potential elimination of a sports team or sports program. That harm is something that is irreparable in the eyes of a lot of courts. You can’t replace the opportunity to participate in your sports team, your senior year, whatever the case may be. So courts are generally sympathetic to placing an injunction on those types of hearings or those types of decisions while Americans sussed out with the court.

Miriam: That sounds like it would be pretty controversial.

Ben: They can be very controversial in budgetary decisions among any athletics department can be really controversial both because the benefit that athletics can provide and the opportunity for scholarships down the road that people view is a way to pay for higher education. There is a high level of–

Miriam: Public feeling, public emotion.

Ben: People get fired up over this stuff. They really do.

Lisa: Well, it’s certainly the taking away of something that was already there in and of itself sounds more controversial than adding…

Miriam: Upsets people.

Ben: It breeds a lot of animosity and those decisions, again, those decisions are ripe with both legal and practical decisions. You need to, as a district or as an institution, consult with your legal counsel about how best to navigate those waters because it’s not an easy decision. Any decision you make, someone’s going to be mad about.

Lisa: It’s not just going to be legal. There’s certainly PR issues and community issues that are going to come into play too. Before we wrap up on this topic, I think it’s important that we also touch on extracurriculars, maybe the structure of available school classes, because those tie into what’s available for students to participate in through their educational experience. Miriam, I know you’ve advised and looked into this area a little bit, do you want to dive into that?

Miriam: I think this is an area single-sex classrooms at the elementary and secondary level in school districts, this is I think an area where not a lot of school districts are aware of the OCR guidance on this topic. Sometimes I’ll look at a school website and it’ll say, girls’ book club meeting at lunch or fourth-grade boys’ academic challenge after school. Sometimes I think I’m not sure if the school district is aware that the Office for Civil Rights did issue guidance on single-sex activities. This applies even to not only to extracurricular activities but also to anything really in education, including a field trip. If you are taking all the girls in a certain grade, all the middle school girls on a field trip, by the end of the year or only the boys on a special field trip for boys. This is something that your school districts should be aware of.

Lisa: Are there any specific guidance that OCR’s given for when a district is allowed to whether segregate or allow for one gender to participate in something and not have something available for the other gender?

Miriam: Categorically, sex-segregated classes, classes that are separated by sex are permitted for contact sports and for human sexuality courses, and they are categorically prohibited for any vocational classes. There is no scenario according to the Office for Civil Rights under which you can provide a vocational class only to one sex.

Lisa: If you have, say a vocational class for high school students to become mechanics, you can’t just have that only open to the male students, female students need to be able to participate that as well.

Miriam: Right. As for other classes, everything that’s not vocational or contact sport or human sexuality, you are allowed to offer this class to one sex only. Either to males or females, but it must be justified. You have to go through a process of justifying this.

Lisa: What helps justify that scenario?

Miriam: There’s a two-part justification test. Each single-sex class has to be based on the school’s important objective, to improve students’ educational achievements through diverse education opportunities, or to meet the needs of a particular student. It can’t just be something that you want to do because it sounds good. You have to identify either some kind of diversity or some type of needs. In addition, the single-sex nature of the class must be substantially related to achieving that objective. For example, a typical example that the Office for Civil Rights will give is, let’s say you wanted to teach the adolescence in your high school about violence in dating, dating violence. You wanted to offer a separate class to females on that topic, because you think that females will be more open or will– because let’s say there’s a specific problem in your area with dating violence, so you wanted to have a session or several sessions with the guidance counselor and group of high school girls. That is something that you can justify, but you have to document this before you offer the class. It can’t just be after the fact, “Oh, here’s why we separated everybody.”

Lisa: Here is what we’re specifically targeting and here’s how the class is going to help us meet that objective.

Miriam: Yes. Just keep in mind, these are very general broad strokes, and each of these prongs that we’re mentioning now very briefly for this podcast, each one has various details and timeframes associated with it. As always, if you have questions it’s always a good idea to talk to your attorneys and to give them a heads up before you plan a single-sex classroom. Thanks, Ben! Thanks for joining us.

Ben: Thanks, guys.

Miriam: In our next and last episode, in Title IX, we will talk about transgender. Another area that is interesting and controversial. In the meantime, please subscribe to our podcast, give us high ratings and have a great day.