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? 

First, the Basics 

Let’s start off with some basics. Title IX requires that schools receiving federal funds make equal efforts to publicize boys’ and girls’ teams. The Department of Education’s Office for Civil Rights (“OCR”) does not require schools to regulate the attention that external media outlets pay to their boys’ and girls’ athletic teams. Instead, the focus is on whether a school’s own efforts to publicize its athletics program are divided equally between boys’ and girls’ teams.  

In analyzing a school’s publicity efforts, OCR looks to three factors: 

1. Availability and quality of sports information personnel 
2. Access to other publicity resources for male/female athletic programs 
3. Quantity and quality of publications and other promotional devices featuring male and female athletic teams 

These three factors are the core of most complaints with OCR relating to publicity. Schools, colleges, and universities are well advised to audit their programs to address these three areas before an OCR complaint appears. Doing so allows more flexibility and lets schools maintain confidentiality around their evaluation, as well as changes to programs that may result. 

Lopsided Coverage Is Not Always Unequal 

Although generally OCR will expect to see balanced coverage of girls’ and boys’ teams, there are some circumstances when imbalanced publicity is okay under Title IX. For example, if the girls’ basketball team makes it to the state championship, a school need not stop publicizing the team’s playoff run just because the boys’ basketball team did not make it to the postseason.  Similarly, a school can publicize the achievements of a boys’ basketball star player even if the girls’ basketball team does not have a similar-caliber star that season. The key is that schools should not limit the opportunities for teams or players of the other sex to accommodate a need to publicize a high-achieving team or player.   

Social Media Matters 

One of the most prominent methods of publicity today is social media.  Companies such as Facebook, Twitter, Instagram, and TikTok provide athletic programs quick, easy, cheap, and effective ways to promote their teams and athletes.  

At the K-12 level—and even at some smaller community colleges, colleges, and universities— coaches drive the use of social media for athletic publicity. Without sufficient monitoring by administration, such setups can lead to publicity efforts that are very public, easy to track and quantify, and substantially imbalanced between the boys’ and girls’ teams.  

As far back as 2017, a complaint led OCR to review the Twitter account of the athletic department at Pentucket Regional High School, located about an hour from Boston.  OCR’s analysis found only 26% of tweets covered girls’ sports between 2014 and 2017, and it mandated monitoring to correct the disparity. OCR is paying attention, and so should you. 

Rah Rah Shish Boom … Violation?  

It’s not obvious, but OCR considers the allocation of cheerleaders, pep bands, drill teams, and similar school groups to athletic contests as “publicity.” Schools must take care to provide coverage from these activities in an even-handed way between boys’ and girls’ sports. 

At Glenwood High School in Illinois, for example, OCR found that the cheer team, dance team, and band performed at each home and away game for varsity football and boys’ basketball, but performed at only one home varsity girls’ basketball game in 2018-19.  After a complaint was filed with OCR in 2019, the school district was required to have cheer and dance teams perform at every girls’ and boys’ varsity and junior varsity home basketball game starting with the 2021-22 season. Once again, OCR is paying attention—are you? 

Administrators in schools, colleges, and universities should use these examples to review their athletic programs and assess compliance with respect to publicity to female and male teams. For more tips, check out our last Title IX athletics webinar. If you have any questions regarding this or any other Title IX athletics issue, please contact Matt Reed at mreed@thlaw.com or our Thompson & Horton Title IX team at TitleIX@thlaw.com.