Despite being well known for successfully promoting gender equality in educational programs, particularly for women’s and girls’ sports programs, Title IX is often misunderstood by students, coaches, parents, and administrators.
Perhaps the biggest misconception is that Title IX requires men’s and women’s sports and programs to be equal on a one-to-one basis. Instead, Title IX aims to achieve equality of opportunity overall at any qualifying institution, rather than exactly identical men’s and women’s programs.
The U.S. Department of Education has developed a three-prong test to evaluate equality of opportunity – an inherently subjective goal. As currently construed, the equal opportunity test considers:
- Substantially proportionate opportunities for each gender
- Continuing expansion of the interests of the underrepresented sex
- Demonstrable accommodation of the interests of the underrepresented sex
To comply with Title IX, a school has to satisfy only one of these prongs.
For the first prong of the test, equal opportunity is determined based on total participation of each gender in all sports. The question is whether participation opportunities for each gender are provided in numbers substantially proportionate to a school’s enrollment.
Evaluating participation opportunities includes many factors, such as the interests and abilities of each gender, equipment and supplies, scheduling of games and practice time, coaching, and practice and game facilities. Enrollment means all students participating in sports. Participation means those students receiving institutional support for sports, and taking part in organized team activities during a sport’s regular season.
Using these definitions, compliance with Title IX occurs unless one gender is disadvantaged in a particular area and that disadvantage is not offset elsewhere.
Consider the following examples.
- A simple example: The boys’ soccer team has two sets of practice uniforms, while girls’ soccer has one set of practice uniforms. This may be acceptable under Title IX if girls’ volleyball has two sets of practice uniforms, while boys’ volleyball has one set of practice uniforms.
- A more complicated example: Example High School has 300 male athletes and 200 female athletes. The boys’ basketball, soccer and football teams have high quality equipment. All other boys’ teams have average equipment. The combined participation in boys’ basketball, soccer and football programs is 150 athletes. Because 50 percent (150/300 x 100 = 50 percent) of the male athletes at Example High School have high quality equipment, the same percentage of female athletes must have high quality equipment. This means 100 female athletes (100/200 x 100 = 50 percent) must have high quality equipment across the various girls’ teams (e.g., 20 volleyball, 20 basketball, 30 softball, 20 soccer, and 10 tennis). Example High School likely complies with Title IX regarding equipment because 50 percent of male and female athletes have high quality equipment, and 50 percent of male and female athletes have (presumably) average equipment.
As such, the first prong of the test does not require dollar-for-dollar spending by schools on men’s and women’s sports.
The second prong of the equal opportunity test asks whether members of one gender have been historically underrepresented in their interest, and, if so, can the school show a continuing effort to correct the imbalance.
Examples of continuing efforts include: adding teams for the underrepresented gender; increasing the participation in sports of the underrepresented gender; affirmative responses to a request of students of the underrepresented gender to add or elevate certain sports; and implementation of a non-discriminatory policy or plan for program expansion that matches the developing interests and abilities of the underrepresented gender.
If a school cannot show a history or continuing effort towards equal gender opportunity, it may still satisfy the equal opportunity test’s third prong by demonstrating that it has met the interests and abilities of the underrepresented gender.
To demonstrate that a school has not complied with Title IX, the third prong of the test requires affirmative answers to each of the following questions: (1) Is there an unmet interest in a particular sport? (2) Is there sufficient ability (i.e., relative number of athletes) to sustain a team in the sport? (3) Is there a reasonable expectation of (available) competition for the team?
Alex is an associate at Barton Gilman LLP, focusing his practice on a wide array of civil litigation matters, including employment law and regulatory issues.