NAVIGATING
TITLE IX:
Interscholastic
Athletics
David T. Duff, Esq.
David N. Lyon, Esq.
SCASBO SPRING Conference
March 8, 2017
TITLE IX
• “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 education program or activity
receiving Federal financial assistance.”
• Title IX applies to all aspects of education programs or activities by
recipients of Federal financial assistance.
• Title IX guarantees equal educational opportunity in all programs that
receive any federal funds.
TITLE IX
Athletics
Facilities
Educational Programs
Policies and Procedures
Discipline
Students who are
Pregnant/Parenting
Employment
Sexual Harassment
Transgender students?
Title IX Athletics
--Equal Access and Equal Treatment
• A school must provide an equal opportunity or access
for female and male students to become
interscholastic athletes.
• A School must provide equivalent treatment of
participants in the overall girls’ athletics program as
compared to the overall boys’ athletics program.
Title IX Athletics
Title IX REQUIRES:
•Equal Opportunity
•Equal Access
•Equivalent Treatment
Title IX Athletics
I. Accommodation of Interests and
Abilities (Equal Access)
II. Athletic Scholarships
III.Other athletic benefits and
opportunities (Equal Treatment)
I. Accommodations of interest and abilities
• Take Your Pick
• Test 1 – Proportionality
• Test 2 – Continued Program Expansion for
the Underrepresented Sex
• Test 3 – Full Accommodation for the
Underrepresented sex
I. Accommodations of interest and abilities
• Test 3
• Institution must offer a team for the
underrepresented sex (almost always
women) for which there is:
• Sufficient interest and ability to form a
team.
• Sufficient competition for the team in the
institution’s normal competitive region.
Sports Recognized by the SC High School League
• Boys
• Girls
• Both Genders
• Football
• Volleyball
• Swimming
• Baseball
• Competitive
Cheer
• Golf
• Softball
• Cross Country
• Wrestling
• Tennis
• Track/Field
• Basketball
• Lacrosse
• Soccer
III. Athletic Benefits and Opportunities
(Equal Treatment)
Compliance with Title IX is determined by the
tangible benefits provided to students (e.g.
quality, access, suitability of equipment,
facilities, etc.) not necessarily the dollar
amount spent on each benefit.
III. Other Athletic Benefits and Opportunities
(Equal Treatment)
• Practice and competitive
facilities
• Locker rooms
• Equipment and supplies
• Scheduling of
games/practice times
• Travel and per diem
allowances
• Tutoring
• Coaching
• Medical and training
facilities and services
• Publicity
• Support services
III. Other Athletic Benefits and Opportunities
- Facilities
III. Other Athletic Benefits and Opportunities
- Facilities
•Provide equivalent quality practice and
competitive facilities.
•Provide equivalent quality locker rooms.
III. Athletic Benefits and Opportunities
Equipment
• Equivalent Quality of Equipment;
• Equivalent Amount of Equipment (e.g. – having 2 sets
of uniforms);
• Equivalent Maintenance of Equipment (e.g. storage
facilities, repair, replacement schedules);
• Equivalent Access to Equipment (e.g. mats for wrestling
and mats for competitive cheer).
III. Other Athletic Benefits and Opportunities
- Coaching
• Same number of coaches for the same amount
of time for boys’ and girls’ team in the same
sport.
• Assign equivalently qualified coaches to boys’
and girls’ teams program wide.
• Compensate boys and girls coaches at a rate
that is proportionate to boys’ and girls’ rate of
participation.
III. Other Athletic Benefits and Opportunities
• Scheduling of Game and Practice Time
• Pre- and post-season competition
• Travel/Modes of Transportation
• Publicity
• Perks (e.g. pre-game meals, banquets, etc)
Title IX and Funding
•Title IX does not prohibit the subsidizing
of athletics through private funding,
revenue production, fundraising, booster
clubs or other donations
Title IX and Funding
•Booster Clubs
•Gifts/Donations
•Fundraising
Takeaway:
•Know what the Booster clubs are buying
•Get creative with offset strategies
•Minor disparities can add up to a
pattern or practice of discrimination