School leaders generally want to ensure that they are providing equal educational opportunities for all student athletes, regardless of gender. Although the implementing regulations of Title IX provide some guidance, they can still be difficult to navigate. A 2015 report issued by the U.S. Department of Education’s Office for Civil Rights (OCR) indicated that there were 3,609 complaints related to athletics in K–12 schools in 2013–14. In Hawaii, a pending class-action lawsuit against the statewide school district alleges yearslong and wide-ranging disparities in the priority placed on athletic programs, support, and amenities between male and female students. Another recent complaint in Michigan highlighted alleged disparities with the season schedule and support between the boys’ and girls’ cross-country teams. In California, a parent filed a lawsuit against the school district alleging that for several years the facilities and fields were not equal between the boys and girls. Because disparities in K–12 athletic programs continue to receive such scrutiny 47 years after the passage of Title IX, we highlight some legal issues for school leaders to consider.

Interest and Abilities

According to one report, nearly 4,500 public high schools across the United States have large gender equality gaps in sports. Plaintiffs sometimes seek relief in court when they are denied the opportunity to participate on the teams they want. In these types of lawsuits, female plaintiffs typically have argued that the school is denying them opportunities in athletics. More recently, reports suggest that boys are sometimes excluded from teams as well.

One court recently analyzed a case in which two boys were denied the opportunity to participate on their high school’s athletic competitive dance team; the state athletic league had a rule that limited participation to girls. The boys claimed that this violated their rights under Title IX as well as the Equal Protection Clause of the Fourteenth Amendment. The U.S. 8th Circuit Court of Appeals found that the athletic league did not have an exceedingly persuasive justification to prohibit the boys from participating. The decision reminds school officials to avoid outmoded gender stereotypes, not only about girls but also about boys.

In a different case this year, three female track and field athletes filed a discrimination complaint with the OCR in June. They argued that allowing transgender athletes who identify as female to compete in girls’ athletics unfairly denies other girls athletic opportunities under Title IX. Both sides in the dispute are attempting to invoke hard-won antidiscrimination principles. This case exemplifies new legal issues presented by our more sophisticated understanding of gender.

Scheduling of Practices and Games

There also have been legal challenges related to scheduling and facilities. For example, in Indiana, a member of the girls’ high school basketball team argued that half of her games were scheduled on Mondays through Thursdays, while the boys’ team had nearly all of their games scheduled on Friday and Saturday nights (i.e., “prime time”). The plaintiff’s mother and her coach had requested that more of the girls’ games be scheduled during prime time. The athletic director explained that an agreement with the state’s high school athletic association prevented her from modifying the schedule. In the resulting Title IX lawsuit, the U.S. 7th Circuit Court of Appeals held that a jury could determine that the disparity was substantial enough to deny equal athletic opportunity under Title IX.

In a class-action lawsuit against a California school district, female athletes claimed that they were intentionally and unlawfully discriminated against under Title IX with respect to practice and competitive facilities, travel, equipment, funding, and locker rooms. The federal district court found for the plaintiffs and ordered the defendants to comply with Title IX in all aspects of their athletic programs and activities at the high school. On appeal, the U.S. 9th Circuit Court of Appeals found that although the school district had made some attempts to provide more equitable treatment and benefits, especially with regard to facilities, it still fell short of its obligations.

In New York, two families filed a lawsuit claiming that school officials violated Title IX when they rented a stadium for all of the boys’ home varsity baseball games, while the girls played on an inferior field. As part of an agreement, the school district agreed to build a new softball facility for the girls. Later, the district also was ordered to pay more than $468,000 in legal fees.

These cases illustrate why school officials should monitor issues beyond athletes’ interests and abilities.

Points to Consider

  1. Some principals may not realize that Title IX concerns not only the number of athletic opportunities for male and female students, but also inequities among the sports and teams.
  2. In addition to careful scheduling of practices and games, school officials should ensure that locker rooms, training facilities, equipment and supplies, travel, transportation, and coaching are equitable.
  3. With regard to interests and abilities, Title IX requires that the genders be treated uniformly. However, it is important to know that athletic programs are viewed in their entirety. As a result, disparate treatment of one gender in one sport can be balanced by a corresponding advantage to that gender in another sport.
  4. Title IX also protects male students from sex discrimination, and the ongoing development of legal protections for transgender students is presenting new questions.
  5. Title IX’s regulations currently do permit segregated teams if the selection for such teams is based upon competitive skill or if the activity is a contact sport.
  6. School districts should provide specific training for coaches about equal opportunities, equal treatment, and gender stereotypes.
  7. Interest levels, or the number of participants, may not be a defense if alleged inequities could be contributing to the disparities in interest and participation in the first place.
  8. Funding is often the reason for inaction, but think carefully about whether it’s too easy an excuse. If two stadiums are not in the budget, for example, consider alternating which teams use them at particular times.

Perhaps the biggest takeaway for school officials is this: Actively question whether the status quo in your athletic programs would stand up to skeptical questions from students, parents, or the community—let alone a legal challenge. In a changing society, what is customary (“Boys in our community just like sports more than girls!”), traditional (“Well, I know girls’ soccer is by far our most successful team, but homecoming always is a football game!”), or just a result of inertia (“No one’s ever complained about that yet!”) may not be fulfilling the promise we have made in Title IX to all of our students.

Suzanne E. Eckes, JD, PhD, is a professor at Indiana University, Bloomington, IN, co-author of Principals Avoiding Lawsuits, and the immediate past president of the Education Law Association. Tom Hutton is a Honolulu-based independent consultant and a former school board attorney and charter school authorizer. He is a longtime member of the Education Law Association.

References

Ako, D. (2018, December 6). ACLU files class-action lawsuit against DOE, OIA for Title IX non-compliance, KITV4 Island News. Retrieved from www.kitv.com/story/39602539/aclu-files-class-action-lawsuit-against-doe-oia-for-title-ix-non-compliance.

Brechlin, D. (2019, June 20). Connecticut high school transgender athletes “no longer want to remain silent” following Title IX complaint, Hartford Courant. Retrieved from www.courant.com/sports/high-schools/hc-sp-transgender-policy-runners-respond-20190619-20190620-5x2c7s2f5jb6dnw2dwpftiw6ru-story.html.

Cook, B. (2017, November 8). Angry girls’ sports parents rack up another Title IX win. Forbes. Retrieved from www.forbes.com/sites/bobcook/2017/11/08/angry-girls-sports-parents-rack-up-another-title-ix-win/#435d3d06737a.

Cruz ex rel. Cruz v. Alhambra Sch. Dist., 601 F.Supp.2d 1183 (C.D. Cal. 2009).

D.M. v. Minn. State High Sch. League, 917 F.3d 994 (8th Cir. 2019).

Myers v. Bd. of Educ. of the Batavia City Sch. Dist., 2016 U.S. Dist. LEXIS 120687 (W.D.N.Y. 2016).

Ollier v. Sweetwater Union High Sch. Dist., 2014 U.S. Dist. LEXIS 35259 (9th Cir. 2014).

Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910 (7th Cir. 2012).

Slagter, L. (2018, February 21). Dexter Schools board member who made Title IX complaint is target of recall. Mlive. Retrieved from www.mlive.com/news/ann-arbor/2018/02/dexter_schools_trustee_coach_l.html.

Strauss, V. (2017, November 14). High school student says he was barred from dance meet because he is male—and asks DeVos to intervene, The Washington Post “Answer Sheet” blog. Retrieved from www.washingtonpost.com/news/answer-sheet/wp/2017/11/14/high-school-student-says-he-was-barred-from-dance-meet-because-he-is-male-and-asks-devos-to-intervene/?utm_term=.7ad3795b3d0d.

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).

U.S. Dep’t of Educ. Office for Civil Rights “OCR” (Apr. 2015). Protecting civil rights, advancing equity. Retrieved from www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2013-14.pdf.

Wong, A. (2015, June 26). Where girls are missing out on high-school sports. The Atlantic. Retrieved from www.theatlantic.com/education/archive/2015/06/girls-high-school-sports-inequality/396782.