Area One – Athletic Participation and Accommodation of Interest: The Three Prong Test

TITLE IX AND AREAS OF DISCRIMINATION BASED ON SEX AND GENDER

DISCRIMINATION IN ADMISSION AND TREATMENT: AN OVERVIEW OF TITLE IX

Title IX is the portion of the Education Amendments of 1972 that prohibits gender discrimination in educational institutions that receive federal funds, either directly or indirectly. Title IX states that:

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 educational program or activity receiving Federal financial assistance.2

Although Title IX is not a lengthy statute, its scope is broad. Title IX was an outgrowth of the Civil Rights Act of 1964 (“Title VII”) which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.3 Notably, Title IX protects any person who participates, or seeks to participate, in an educational program or activity of the school.4 In addition, Title IX is not just for public schools. Any entity that receives federal funds, whether public or private, must comply with Title IX.5

The Office of Civil Rights (“OCR”) enforces many of the federal laws that prohibit discrimination in education. Title IX is one of those federal laws. Thus, a person who believes he or she has been discriminated against under Title IX may file a complaint with OCR. OCR may then start an investigation. OCR may also launch its own Title IX investigation, known as a “compliance review”.6 Finally, OCR may issue written policy guidance through letters in order to assist school systems and others with compliance issues.7

OCR enforces Title IX through federal regulations. OCR specifies through the regulations that no person shall, on the basis of sex, be denied admission, excluded from participation, or denied the benefits of any academic, extracurricular, research, occupational training, or other educational program or activity operated by a local education agency (“LEA”) which receives federal funding. Specifically, the LEA shall not, on the basis of sex:

6

 Treat one person differently from another in determining whether he or she is eligible for aid, benefits, or services;

 Provide different aid, benefits, or services;

 Deny aid, benefits, or services;

 Subject a person to different rules of behavior, sanctions, or treatment;

 Apply rules concerning the student or applicant’s residence, including eligibility for in-state fees and tuition;

 Aid or perpetuate discrimination by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees; or

 Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.8

The following are examples of sex-based discrimination in admission and treatment, e.g. comments and discrimination directed at a student because of his or her gender or stereotypes resulting from that person’s gender:

 Not allowing any females to participate in math field day because

“Girls are bad at math and they will bring our scores down;”

 Criticizing male students when they speak up in class because “I find that boys disrupt class when I let them talk;” or

 Making fun of a student’s gender identity by asking a transgender student, “do you know how girls feel about makeup and wearing high heels now that you ARE one?”

DISCRIMINATION IN ATHLETICS: TITLE IX COMPLIANCE IN ATHLETICS

While the Title IX statute itself does not expressly refer to athletic programs, the regulations state that 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 athletics offered by an LEA, and no LEA shall provide any such athletics separately on that basis.9 10

7

In addition to OCR’s interpretation of Title IX regulations, Title IX’s impact on athletics has evolved through the years through a series of OCR policy interpretations.11 According to OCR, while designed specifically for intercollegiate athletics, the same standards will often apply to school athletic programs at the elementary and secondary level.12

Title IX covers the following three areas of high school and college athletics:

 Area One: accommodating student interests and abilities;

 Area Two: athletic financial assistance, e.g. scholarships and other program funds; and

 Area Three: other program components, also known as the “laundry list.”13

As a general rule, Title IX applies to the overall athletic program of a school, not to specific teams,14 and Title IX does not require athletic programs for male and female students to be identical, but it does require equity. Rather, for all of the program components (except financial aid), the basic test of compliance is equivalence.15 That is, the benefits, opportunities and treatment of each sex must be equal or equal in effect.16 Under this standard, identical benefits, opportunities, or treatment are not required, provided the overall effect of any difference is negligible.17 Importantly, OCR has further explained that an entity is not required to offer particular sports or the same sports for each sex, and an entity is not required to offer an equal number of sports for each sex. Rather, an entity must accommodate to the same degree the athletic interests and abilities of each sex.18

AREA ONE – ATHLETIC PARTICIPATION AND ACCOMMODATION OF INTEREST: THE THREE PRONG TEST

Before Title IX, most schools prioritized sports for male students, leaving opportunities for women limited. Title IX has helped focus attention on meeting the needs of women interested in athletics and helped schools to recognize their responsibility to make sure that both genders are provided equal athletic opportunities. In the athletics context, the first component of compliance with Title IX is effectively accommodating the athletics interests and abilities of athletes.19

8

Title IX compliance is assessed by examining a school’s:

(a) determination of the athletic interests and abilities of its students;

(b) selection of the sports that are offered; and (c) level of competition, including opportunity for team competition.20

This three-part (or prong) test can sometimes be confusing and does not provide each individual school system a bright-line test for compliance. Thus, instead of guessing and analyzing a school’s programs from year to year, OCR refined and explained OCR’s three-prong test to determine compliance.21 In summary, the three-prong test gives a school three different ways to comply with Area One of Title IX athletic compliance.22 A school only has to satisfy one of the prongs in order to comply with Area One.23 In addition, a school can change which of the three prongs it meets from one year to the next, as long as it meets one of the tests. In other words, schools are providing “equivalency” in participation--equal athletic participation opportunities and accommodation of interest to their male and female students--if they meet any one of the three prongs. The three-prong test is intended to allow schools flexibility and control over their athletic programs when deciding how it will provide students with athletic opportunities.24

The following requirements represent the three-prong test under Area One:

 Test One: Proportionality: Are participation opportunities for males and females provided in numbers substantially proportionate to their respective enrollments; or

 Test Two: Continued Program Expansion: Where members of one sex have been underrepresented, can the school show a history and continuing practice of program expansion which reflects the interests and abilities of the members of that sex; or

 Test Three: Full Accommodation of Underrepresented Sex: Where the members of one sex are underrepresented, and the institution cannot show a history and continuing practice of program expansion, can the school show that the interests and abilities of the underrepresented sex have been effectively accommodated by the present program?25

9