U.S. Department of Education Office for Civil Rights Title IX Compliance Concerns – Equivalent Opportunities for Student Athletes

The U.S. Department of Education Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681-1688, and its implementing regulations at 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex in any education program or activity operated by a recipient of federal financial assistance.  As a recipient of federal financial assistance from the U.S. Department of Education, Wisconsin public school districts are subject to Title IX.

While recently the OCR’s enforcement of Title IX has appeared to focus primarily on ensuring equal access to facilities (restrooms, locker rooms, etc.) and programs (athletics) for transgender students, the OCR has also become more actively engaged in working to broadly prohibit discrimination on the basis of sex (male and female) in athletic programs.  In October of 2023 the OCR reached agreement with the Morgan Hills Unified School District (the “District”) to resolve compliance concerns under Title IX involving components of the District’s athletic programs.  (OCR Case No. 09-22-1205, October 19, 2023).

The OCR received a complaint alleging that the District was discriminating against female students at Live Oak High School on the basis of sex in the following components of its athletic programs:

• Equipment and supplies;
• Scheduling of games and practice times;
• Travel and per diem expense allowance;
• Coaching;
• Locker room, practice and competitive facilities;
• Medical and training facilities and services; and
• Publicity

In undertaking its examination of the above areas, the OCR will examine whether the availability and quality of benefits, opportunities and treatment provided are “equivalent” for all students regardless of sex and irrespective of the funding source(s) for the benefits and services.  In so doing, the OCR will consider benefits and services provided through the use of private funds, including booster club funding or fundraising, in combination with all other benefits and services – where fundraising or booster clubs provide benefits or services that assist only teams of one sex, school districts must ensure that teams of the other sex receive equivalent benefits and services.  The OCR defines “equivalent” as equal or equal in effect – if fundraising or booster clubs provide benefits or services to athletes of one sex that are greater than what a school district is capable of providing to athletes of the other sex, the school district must take action to ensure that benefits and services are equivalent for both sexes.

In undertaking the above examination, the OCR will compare components of the boy’s programs and the girl’s programs on an overall basis, not a sport-by-sport basis.

Finally, the OCR will determine whether disparities between boy’s programs and girl’s programs result in the denial of equal opportunity to male and female athletes, either because the disparities collectively are of a substantial and unjustified nature or because the disparities in individual program areas are substantial enough by themselves to deny equality of athletic opportunity.

Pursuant to the criteria above, OCR examined the benefits, services and opportunities provided to male and female athletes at Live Oak High School.  After raising specific concerns with the District, the District agreed to enter into a Resolution Agreement (“Agreement”) intended to ensure that male and female athletes have access to equivalent benefits and services in the District’s athletic programs, as follows:

• Equipment and Supplies: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the quality, suitability, amount, maintenance, replacement and availability of equipment and supplies (e.g., uniforms, sport-specific equipment and supplies, instructional devices, etc.).  The District agreed to establish an Athletic Equipment and Policy Committee to make recommendations to the District Administrator and ensure that members of the boy’s and girl’s athletic teams have equitable uniforms, equipment, and supplies.       
• Scheduling Games and Practice Times: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the number of competitive events per sport, the number and length of practice opportunities, the time of day that competitive events and practice opportunities are scheduled and the opportunities to engage in pre-season and post-season competition.  The District agreed to work collaboratively with all athletic leagues to ensure that the District’s boy’s teams and girl’s teams have equitable scheduling of games, and that the boy’s teams and girl’s teams have equitable opportunity to compete during preferred time slots.
• Travel and Per Diem: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the modes of transportation, per diem allowances and dining arrangements.  The District agreed to ensure that the boy’s teams and girl’s teams have equivalent access and opportunity to use vans, buses, or charter buses for transportation to away games and matches.  The District also agreed to establish an equitable policy for early release from class for all student athletes and to provide equitable per diem allowances. 
• Coaching: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the comparative ability of coaches and assistant coaches, the training, experience and other professional qualifications of coaches and the compensation of coaches.  The District agreed to provide coaching to the boy’s teams and girl’s teams on an equitable basis.  Specifically, the District agreed to provide equivalently appropriate numbers of coaches per athlete for boy’s teams and girl’s teams.  Finally, the District agreed to track the number of paid and volunteer coaching positions for each team. 
• Locker Room, Practice and Competitive Facilities: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the quality and availability of the facilities provided for practice and competitive events, exclusivity of use of facilities provided for practice and competitive events, the availability and quality of locker rooms, maintenance of practice and competitive facilities and preparation of facilities for practice and competitive events.  The District agreed to provide equivalent access to the boy’s and girl’s teams with respect to practice and competitive facilities and to ensure equivalency of the boy’s teams’ facilities to the girl’s teams’ facilities. 
• Medical and Training Facilities and Services: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the availability of medical personnel and assistance, health, accident and injury insurance coverage, the availability and quality of weight and training facilities, the availability and quantity of conditioning facilities and the availability and qualifications of athletic trainers.  The District agreed to ensure that boy’s and girl’s athletic teams have equitable access to the District’s athletic trainer, weight room and training facilities. 
• Publicity: The OCR examined concerns as to disparities between the boy’s programs and girl’s programs related to the availability and quality of sports information personnel, access to other publicity resources for boy’s and girl’s programs and the quantity and quality of publications and other promotional devices featuring boy’s and girl’s athletic programs.  The District agreed to ensure that boy’s and girl’s athletic teams receive equitable publicity from the District.  Specifically, the District agreed to provide equitable publicity with respect to the quantity and quality of promotional activity (e.g., social media posts, website announcements, pep rallies and band and cheer recognition and support).

The District further agreed to provide training on its obligations under Title IX and its application to athletics.  Specifically, the District agreed to provide its Title IX Coordinators, athletic director, principals and coaches with training on the District’s obligations under Title IX and its application to athletics, including how funding from any source (e.g., booster clubs) can affect the balance of equivalent benefits and services for male and female athletes.

The OCR’s efforts to prohibit discrimination on the basis of sex (male and female) in athletic programs is not regularly making headlines, however, school districts need to undertake a review, if they have already adopted their written policies, procedures and criteria to ensure that the availability and quality of benefits, opportunities and treatment provided are equivalent for members of both sexes, regardless of the funding source(s) for the benefits and services, or make efforts to adopt such policies, procedures and criteria. In addition, such a review must also evaluate the consistency between adopted policies and procedures with actual practice.