PRONG ONE: PROPORTIONALITY Under the first prong of the test, each sex’s representation in athletics must be substantially proportionate to its representation in the student body. In other words, a school should provide athletic opportunities for female students that are substantially proportionate to the percentage of female enrollment at the school.26 For example, if girls are 54% of the overall enrollment of students at a high school, 54% of a school’s athletes should be girls. Fortunately, OCR gives schools flexibility in deciding how to provide proportionate athletic opportunities to students of both sexes, including by eliminating teams, placing caps on its rosters,27 or “[e]xpanding …athletic opportunities through new sports.”28 Importantly, in achieving the first prong, a school is only required to achieve “substantial proportionality,” not strict proportionality,29 because OCR and courts have recognized that strict proportionality is not a feasible standard.30 However, neither the OCR regulations nor any court has set out a clear rule with a specified percentage. Instead, OCR clarified that athletic opportunities are “substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, i.e., a team for which there is a sufficient number of interested and able students and enough available competition to sustain an intercollegiate team.”31 In light of the above, in determining substantial proportionality, schools should consider:
Actual athletes, not unfilled slots;32
Exact proportionality is not required so there is no magic number;33
Substantial proportionality is determined on a case-by-case basis in light of the school’s circumstances and the size of its program; 34 and
As a general rule, there is substantial proportionality “if the number of additional participants…required for exact proportionality ‘would be sufficient to sustain a viable team.’”35 PRONG TWO: HISTORY AND PRACTICE
Another way a school can show its compliance in the area of participation and accommodation is by satisfying the second prong: a history and continuing practice of expanding sports for women. This prong applies only if students of one sex are underrepresented. Typically, women are the underrepresented sex in athletics.36 Accordingly, even if a school is unable to show substantial proportionality (prong one) in its athletic programs, a school can still be considered in compliance if it 10
