Does Title IX Apply to Gender Disparity in NIL Compensation?

By Matthew A. Reed, Counsel, Thompson & Horton

Amateurism in intercollegiate athletics is dying. A combination of state legislation and federal court orders has resulted in a largely unregulated “Wild West” environment in which college athletes have gained an unprecedented ability to capitalize on their status by receiving payments for use of their names, images, and likenesses (“NIL”). Not surprisingly, most NIL payments seem to be flowing to men. What responsibility do educational institutions have to ensure gender equity in NIL payments to athletes in their sports programs?

Not So Fast: OCR’s Fact Sheet on DEI Efforts is Only Half the Story

On January 31, 2023, the Department of Education’s Office for Civil Rights released a fact sheet clarifying that diversity, equity, and inclusion training and similar activities “are not generally or categorically prohibited” under Title VI of the Civil Rights Act of 1964. The OCR fact sheet provides a list of activities, such as DEI training, training on the impacts of racism or systemic racism, cultural competency and other nondiscrimination training, and using specific words, such as equity, discrimination, inclusion, diversity, systemic racism, or similar terms in school policies, programs, or activities. It says that Title VI does not “categorically” prohibit such activities and that deciding if there is a violation requires assessing the totality of the circumstances in each particular case.

According to OCR’s press release, it issued the fact sheet “in response to confusion regarding the legality of [DEI] activities in schools.” Although OCR does not elaborate, stories about the importance of conservative activism around how school teach racism abound. The issues are similar in the Title IX realm, with a small but mighty contingent of challengers to programs for girls such as coding camps, scholarships, grants, and mentorships claiming that such programs, which are aimed to remediate past and current discrimination against women in various spaces, are discriminatory against men.

Does OCR’s fact sheet remove the confusion? Not even close. Keep reading to find out why.

How to Make—and Keep—a Resolution to Prepare for the New Title IX Rules

We are barely into 2023, and it’s shaping up to be the biggest year yet for Title IX. From transgender bathroom bans and athletic participation battles to growing scrutiny on general athletics equity and pregnant and parenting students, Title IX will continue to have its moment in the sun in 2023 as it has for the past few years. Of course, the biggest news for Title IX in 2023 will undoubtedly be the issuance of the Biden administration’s new Title IX rule. The Department of Education recently confirmed that it intends to hoist the new regulation on schools in May 2023. Schools, colleges, and universities will once again have to comply with an entirely new grievance structure quickly over the summer.

Those who spent the summer of 2020 scrambling to prepare for the 2020 Title IX rules know that implementing new rules over the summer is a huge feat. If you haven’t already resolved to begin preparing now to be ready for that process when it comes, you should! Like any other New Year’s resolution, there is a risk of giving up without a plan. Don’t have one? Don’t worry. The Thompson & Horton Title IX team has you covered. Keep reading for the essential action plan to help you achieve your Title IX goals in the New Year.

Equal Tweets, Equal Cheers: Is Your School Athletics Program Providing Equal Publicity under Title IX?  

With Matthew A. Reed, Counsel, Thompson & Horton

As we noted last year, K-12 athletics programs are facing increasing Title IX enforcement efforts. Whether with OCR or in the courts, complainants increasingly claim schools do not provide equal benefits to male and female teams in categories such as facilities, game scheduling, coaching, and travel.   

One category that gets less attention—despite hiding in plain sight—is a school’s publicity efforts on behalf of its sports teams and athletes. Publicity includes traditional methods such as school newspaper coverage and marquee announcements, but it also includes social media posts and even the use of cheerleaders and school bands. What are some of the most common complaints we see in this area and what can your school, college, or university do to limit the risk of problems? 


Four Fundamental Takeaways From the Eleventh Circuit’s Approval of School Transgender Bathroom Ban

The Eleventh Circuit Court of Appeals recently became the first Federal appellate court to decide that a school policy separating student bathrooms based on “biological sex” “passes constitutional muster and comports with Title IX.” Three judges dissented.

According to the seven-judge majority’, bathrooms can be segregated by “biological sex” as evidenced by the student’s enrollment documents even if doing so excludes transgender students from bathrooms matching their gender identities. Such a rule is not required, but the decision gives a green light within the Eleventh Circuit’s jurisdiction (Alabama, Florida, and Georgia) for schools to choose to implement such a rule.

The decision, Adams v. School Board of St. Johns County, Florida, conflicts with decisions by two other Federal appellate courts and does not change the law in those states (Illinois, Indiana, Maryland, North Carolina, South Carolina, Virginia, West Virginia, and Wisconsin). So, it may be well-suited for review by the U.S. Supreme Court.

Unless and until that happens, however, the 150-page decision adds to school leaders’ confusion about handling requests from transgender students. The case leaves many unanswered questions, even for schools within the Eleventh Circuit’s jurisdiction and jurisdictions like the Fifth Circuit (Louisiana, Mississippi, Texas), which do not have a conflicting decision. It could even raise questions for any employer subject to Title VII when addressing a request about facilities by a transgender employee. So much for legal opinions clarifying the law for us!

So, what do you need to know? Keep reading for four fundamental takeaways to help cut through the confusion on this critical case.

11th Circuit: Excluding Trans Students From Bathroom Not a Title IX Violation

In a long-awaited decision, the Eleventh Circuit Court of Appeals held on December 30, 2022, that a Florida school board could exclude a transgender high school student from the bathroom matching their gender identity without a constitutional or Title IX concern. A majority of the court held that restricting bathroom use by “biological sex” is proper and significantly furthers student privacy interests. Other judges dissented. That split, as well as the conflict between this decision and that in other appellate courts across the country, tees up the case for review by the U.S. Supreme Court. Read the case here: Adams v. School Board of St. Johns County, Florida.