1. NAVIGATING TITLE IX: Interscholastic Athletics
David T. Duff, Esq.
David N. Lyon, Esq.
SCASBO SPRING Conference
March 8, 2017

2. 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.

3. Title IX
Athletics
Students who are Pregnant/Parenting
Facilities
Educational Programs
Employment
Policies and Procedures
Sexual Harassment
Discipline
Transgender students?

4. 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.

7. Title IX Athletics Title IX REQUIRES: Equal Opportunity Equal Access
Equivalent Treatment

8. Title IX Athletics
Accommodation of Interests and Abilities (Equal Access)
Athletic Scholarships
Other athletic benefits and opportunities (Equal Treatment)

9. 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

10. 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.

11. 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

12. 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.

13. 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

14. III. Other Athletic Benefits and Opportunities - Facilities

15. III. Other Athletic Benefits and Opportunities - Facilities
Provide equivalent quality practice and competitive facilities.
Provide equivalent quality locker rooms.

16. 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).

17. 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.

18. 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)

19. Title IX and Funding
Title IX does not prohibit the subsidizing of athletics through private funding, revenue production, fundraising, booster clubs or other donations

20. Title IX and Funding
Booster Clubs
Gifts/Donations
Fundraising

21. 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