Amidst the season of giving, this article comes as a reminder regarding the obligations school districts have with respect to receiving donations from booster clubs or other support organizations. While Wis. Stat. § 118.27(2) allows school boards to receive donations from booster clubs or other support organizations, the subsection creates a potential conflict with Title IX’s implementing regulations, which require that school districts provide equivalent athletic benefits and services to students of both sexes. See 34 C.F.R. § 106.41(c)(2)-(10). In order to better understand how to avoid that potential conflict, this article first sets forth the relevant Title IX implementing regulations and then considers how Wis. Stat. § 118.27(2) ultimately leaves school districts with two (2) sets of options for working with booster clubs or other support organizations.
Title IX Implementing Regulations. Title IX’s implementing regulations related to athletic programs set forth the following prohibition:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
34 C.F.R. § 106.41(a). Thus, in order to comply with Title IX, school districts must ensure that the benefits and services provided to the athletic programs of both sexes are equivalent. Benefits and services are said to be equivalent when they are either equal or equal in effect.
In 1979, the Department of Health, Education, and Welfare (HEW) (now the United States Department of Education (DOE), Office for Civil Rights (OCR)) published a Policy Interpretation for applying Title IX in athletics. See A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 239 (Dec. 11, 1979). Although the 1979 Policy Interpretation addressed intercollegiate athletics, subsequent guidance from the OCR has clarified that the 1979 Policy Interpretation applies equally to interscholastic athletics. See Intercollegiate Athletics Policy: Three-Part Test – Part Three, OCR-00053 (Apr. 20, 2010)
The OCR enforces Title IX by conducting compliance reviews and investigating complaints. During those reviews and investigations, the OCR assesses whether school districts are providing equivalent benefits and services to the athletic programs of both sexes. Oftentimes, the assessment of equivalence involves the OCR conducting interviews, reviewing documents, performing onsite visits, and inspecting athletic facilities. The point of such reviews and investigations is to ascertain whether the program components outlined in 34 C.F.R. § 106.41(c)(2)-(10) demonstrate equivalence in the boys’ and girls’ athletic programs; those program components are as follows:
(2) Equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Locker rooms, practice and competitive facilities;
(8) Medical and training facilities and services;
(9) Housing and dining facilities and services; and
See 34 C.F.R. § 106.41(c)(2)-(10). Aside from those program components, the 1979 Policy Interpretation provided a detailed list of factors to be considered when evaluating equivalency under program components (2) through (10). Because program component (9) is unlikely to apply to school districts due to the differences between intercollegiate and interscholastic athletics, this article focuses only on those factors applicable to program components (2)-(8) and (10). Those include the following:
- Equipment and Supplies. The factors to be considered include the quality, amount, suitability, availability, and maintenance/replacement of the equipment and supplies. Equipment and supplies include uniforms, training equipment, sport-specific and general equipment, and instructional devices.
- Scheduling. The factors to be considered include the number of competitive events per sport, number and length of practice opportunities, and time of day of practice and competitions.
- Travel. The applicable factor to be considered is the mode of transportation available.
- Opportunity to Receive Coaching. The primary factor to be considered is the availability of full- and part-time/assistant coaches.
- Assignment and Compensation of Coaches. The factors to be considered include the quality, nature, and availability of coaching (Note: where there are valid differences in the skill, effort, and responsibility of coaches, the differences in compensation may be justified).
- Locker Rooms and Facilities. The factors to be considered include the quality and availability of the facilities, the exclusivity in using those facilities, the quality and availability of locker rooms, the maintenance of facilities, and the preparation of facilities for practices and competitions.
- Medical and Training Facilities and Services. The primary factors to be considered include the availability of medical personnel, the quality and availability of weight and training facilities, and the availability and qualifications of athletic trainers.
- Publicity. The factors to be considered include the quantity and quality of publications and other promotional materials.
As demonstrated by the preceding factors, the OCR primarily “compar[es] the availability, quality and kinds of benefits, opportunities and treatment afforded members of both sexes.” See OCR Case No. 05-19-1418, 2 (Jan. 23, 2020). Under such a comparison, a school district need not provide identical benefits and services; however, the district must ensure that “the overall effects of any differences [are] negligible.” See A Policy Interpretation, 44 Fed. Reg. 239. To clarify the comparison, Region V of the OCR, which includes Wisconsin, mapped out a procedure for investigating the overall effects of a school district’s program components. See OCR Case No. 05-19-1418, 2. An OCR investigation will consider each program component and respective factors using the following sequential procedure:
- Are the same or similar benefits or services provided to the boys’ and girls’ programs? If the answer is “yes,” the analysis ends for that particular program component, as the program component suggests Title IX compliance. If the answer is “no,” the OCR will continue to Question #2.
- Do the differences have a negative effect on one sex such that a disparity results between boys’ and girls’ teams? If the answer is “no,” the analysis ends for that particular program component, as the program component suggests Title IX compliance. If the answer is “yes,” the OCR will continue to Question #3.
- Are the disparities that are related to those differences in benefits or services offset by unmatched benefits or services provided to a team of the other sex, such that the offsetting benefits were equal or equal in effect? If the answer is “yes,” the analysis ends for that particular program component, as the program component suggests Title IX compliance. If the answer is “no,” the OCR will continue to Question #4.
- Are the benefits to the boys’ and girls’ programs negligible? If the answer is “yes,” the analysis ends for that particular program component, as the program component suggests Title IX compliance. If the answer is “no,” the OCR will continue to Question #5.
- Are the benefits the result of legitimate, nondiscriminatory factors? If the answer is “yes,” the analysis ends for that particular program component, as the program component suggests Title IX compliance. If the answer is “no,” the OCR will continue to Question #6.
- Do the identified disparities result in the denial of equal opportunities to male or female athletes, either because the disparities across the program were substantial and unjustified or because the disparities in one sport were substantial enough to deny equal athletic opportunity? If the answer is “yes,” the factor suggests noncompliance with Title IX.
Due to the level of information needed with respect to the program components and their respective factors, investigations of athletics programs have proven to be both lengthy and difficult. See Title IX Athletics Investigator’s Manual, OCR, 6 (1990). Prior to the conclusion of such investigations, school districts often enter into Resolution Agreements in order to resolve complaints in a timelier matter. To avoid such investigations or the need for entering into a Resolution Agreement, school districts should ensure that they are engaging in the preceding analysis with respect to the aforementioned program components.
Booster Clubs and Other Support Organizations. While nothing in Title IX prohibits school districts from receiving donations from booster clubs or other support organizations, Wis. Stat. § 118.27(2) runs into potential conflict with Title IX due to the following language:
Whenever a school board receives gifts or grants under this section, it shall make such use thereof, or invest the same in the case of moneys, as the donor or grantor specifies.
Wis. Stat. § 118.27(2). Thus, if a booster club or other support organization earmarks a donation for the team(s) of one sex and the school district accepts the donation, the school district must adhere to the club or organization’s specifications, which could create Title IX violations. To avoid potential violations of Title IX, school districts may choose from two (2) separate approaches in working with booster clubs or other support organizations. As a first approach, school districts may choose to work solely with booster clubs or support organizations that provide equivalent donations to boys’ and girls’ teams. While such an approach avoids Title IX violations, school districts run the risk of ultimately deterring some donors who would prefer earmarking their donations for the team(s) of only one (1) sex. As an alternative approach, school districts may choose to work with booster clubs that do earmark their donations for the team(s) of only one (1) sex, if they can allocate equivalent benefits and services to the team(s) of the other sex. While such an approach can avoid Title IX violations if equivalent benefits or services are allocated, if such benefits or services cannot be allocated, school districts must reject the donations in order to avoid violating Title IX.
Conclusion. To ensure compliance with Title IX, school districts should examine whether they are providing equivalent benefits and services in their athletic programs for both sexes. When school districts receive donation offers from booster clubs or other support organizations earmarked for the team(s) of one sex, the districts should carefully balance whether they can tend to the donor’s specifications while providing equivalent benefits and services to the team(s) of the other sex. If school districts cannot ensure that balance, they should reject the offered donations.
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Laura E. Pedersen
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