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 Students who are Pregnant/Parenting Facilities Educational Programs Employment Policies and Procedures Sexual Harassment Discipline 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 Accommodation of Interests and Abilities (Equal Access) Athletic Scholarships 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 Wrestling Tennis Softball Cross Country 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 Tutoring Coaching Locker rooms Medical and training facilities and services Equipment and supplies Scheduling of games/practice times Publicity Support services Travel and per diem allowances

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

Know what the Booster clubs are buying 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