By Jackie Wernz, Adam Rothey, Matt Reed, and Kendra Yoch

Historically, K-12 athletics have taken a back seat to collegiate athletics when it comes Title IX enforcement, whether in the form of private litigation or investigations by the Department of Education’s Office for Civil Rights (“OCR”).  More recently, however, we are seeing an emerging focus on Title IX enforcement in high school athletics, and specifically allegations that female teams are receiving unequal benefits compared to their male counterparts. Is your district in compliance? An internal review can help ensure equal opportunities and benefits for your athletes and avoid costly disputes. Here’s what to look for.

OCR has articulated the following “laundry list” of benefit categories that schools are obligated to provide equally to male and female teams:

1. Equipment and supplies
2. Scheduling of games and practice time
3. Travel and per diem allowance
4. Opportunity to receive coaching and academic tutoring
5. Assignment and compensation of coaches and tutors
6. Locker rooms, practice and competitive facilities
7. Medical and training facilities and services
8. Housing and dining facilities and services
9. Publicity
10. Support services
11. Recruitment of student athletes

The list is extensive. And significant inequities in any category or team can create a potential for liability. To get a feel for how these disputes play out, below are a few examples from high schools around the country that illustrate the problem of unequal benefits in high school athletic programs.

Facilities

At Claremont High School in Claremont, California, the baseball team had an on-campus, high-end baseball field with a scoreboard, covered dugouts, bleachers, a clubhouse with a locker room, and multiple lighted batting cages.  The softball team, on the other hand, played its games at a public park that was three-quarters of a mile from campus.  The park did not have the amenities the on-campus baseball field had.  Moreover, parents alleged that transients made the girls’ use of the public restroom at the park unsafe.  An OCR complaint and investigation resulted in a resolution agreement by which the school district agreed to build a $2 million softball field on-campus, near the baseball diamond, with equivalent amenities.  The softball field is scheduled to open in 2023.

Game Scheduling

In Bennington, Nebraska, parents of female athletes sued the school district under Title IX alleging, among other things, that the district routinely scheduled girls’ basketball games at earlier times, reserving the “premium” game time slot for boys’ basketball.  By a consent decree, the district agreed that boys’ and girls’ basketball game times would be rotated to ensure that each team has an equivalent opportunity to play at the preferred later time.

Coaching

In Bennington, Nebraska, parents of female athletes sued the school district under Title IX alleging, among other things, that it discriminated against girls with respect to coaching because the softball team had 3 coaches to the baseball team’s 5 coaches, and that the baseball coaches had more experience.  By a consent decree, the district agreed that it would use comparable hiring practices and ensure that salaries, duties, and coach-to-athlete ratios were equivalent for the girls’ and boys’ teams.

Travel

In Stillwater, Oklahoma, parents of female athletes sued the Payne County school district under Title IX alleging, among other things, that the district’s newer buses were reserved for the football team’s use.  As a result, the softball team was occasionally stranded on the highway because the older bus provided by the district had broken down.  By settlement agreement, the district agreed to ensure equitable use of the newer buses.  Specifically, it agreed that no team would get priority unless it was participating in a regional or state championship.

Administrators at the K-12 and collegiate level can use these examples to start thinking through their own programs and assessing whether they are providing equal benefits to female and male athletic teams. Remember, in addition to equal benefits, Title IX also requires equal participation opportunities and, for higher education, proportionate scholarship dollars. For more details and tips, check out our recent Title IX athletics webinar. If you have any questions regarding this or any other Title IX athletics issue, please contact Jackie Wernz, Adam Rothey, Matt Reed, or Kendra Yoch.