DAVID RYAN PHELPS, JENKINS, GIBSON & FOWLER Equal Opportunities In Athletics

20 U.S.C.A. §1981 No person in the United States shall on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Overall Determination of Compliance 1.Whether policies are discriminatory in language or effect; or 2.Whether disparities of a substantial and unjustified nature in the benefits, treatment, services, or opportunities afforded male and female athletes exist in the institution’s program as a whole; or 3.Whether disparities in individual segments of the program with respect to benefits, treatment, services or opportunities are substantial enough in and of themselves to deny equality of athletic opportunity.

COMPLIANCE TEST Educational institutions must comply with the requirements of Title IX in all areas of athletic participation and treatment.

PARTICIPATION Three prong “effective accommodation” test: 1.Substantial proportionality 2.History & continuing practice of program expansion 3.Full & effective accommodation of athletic interests and abilities

SUBSTANTIAL PROPORTIONALITY Are participation opportunities for male and female students provided in numbers substantially proportionate to their enrollment percentages?

HISTORY/CONTINUING EXPANSION OF PROGRAMS A history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of the underrepresented sex

FULL AND EFFECTIVE ACCOMMODATION OF ATHLETIC INTERESTS/ABILITIES Are the interests and abilities of the underrepresented sex fully and effectively accommodated by the present program?

EQUITABLE TREATMENT OF ATHLETES 1.Provision of uniforms, equipment, storage and supplies; 2.Scheduling of games and practice times; 3.Travel and per diem allowances; 4.Opportunity to receive coaching and academic tutoring; 5.Assignment and compensation of coaches and tutors; 6.Provision of locker rooms, practice and competitive facilities; 7.Provision of medical and training facilities and related services; 8.Publicity

UNIFORMS, EQUIPMENT, STORAGE AND SUPPLIES 1.Quality 2.Amount 3.Suitability 4.Maintenance and replacement 5.Availability

SCHEDULING 1.Number of competitive events per sport 2.Number and length of practice opportunities 3.Time of day competitive events are scheduled 4.Time of day practice opportunities are scheduled 5.Pre-season/Post-season competitive opportunities

TRAVEL AND PER DIEM ALLOWANCE 1.Modes of Transportation 2.Housing furnished during travel 3.Length of stay before and after competitive events 4.Per diem allowances 5.Dining arrangements

OPPORTUNITY TO RECEIVE COACHING (TUTORING) 1.Relative availability of full time coaches 2.Relative availability of part time/assistant coaches

ASSIGNMENT AND COMPENSATION OF COACHES 1.Experience, training and other professional qualifications; 2.Professional standing; 3.Rate of compensation (per sport, per season); 4.Duration of contracts; 5.Conditions relating to contract renewal; 6.Nature of coaching duties performed; 7.Working conditions; 8.Other terms and conditions of employment

LOCKER ROOMS, PRACTICE & COMPETITIVE FACILITIES 1.Quality and availability of facilities provided for practice or competitive events 2.Exclusivity of use 3.Availability of locker rooms 4.Quality of locker rooms 5.Maintenance 6.Preparation of facilities for competitive events

MEDICAL AND TRAINING FACILITIES 1.Availability of medical personnel and assistance 2.Health, accident and injury insurance 3.Weight training facilities 4.Conditioning facilities 5.Athletic trainers

PUBLICITY 1.Sports information personnel 2.Access to other publicity resources 3.Quantity and quality of publications and other promotional devices

EQUITABLE IN EFFECT Program is in compliance if the compared program components are equal in effect. Identical benefits, opportunities and treatment are not required provided the overall effects of any differences are negligible. Consider the entirety of treatment of men’s and women’s programs as a whole.

EQUITABLE IN EFFECT Title IX does not require that budgets for sports be equal for each gender. Schools may take into account the difference in outfitting athletes in equipment that is of comparable quality. The cost of outfitting a football player versus the cost of outfitting a volleyball player, for example.

EQUITABLE IN EFFECT Schools are allowed to favor one sport over another, provided a gender bias does not exist and that the overall quality of opportunities is equal for boys and girls. For example, the LEA can provide superior facilities for baseball in comparison to softball, provided this gap is balanced elsewhere in the program, such as superior equipment/facilities for volleyball.

BOOSTER CLUBS AND PRIVATE DONATIONS Revenue from all sources must be used to provide equitable treatment of boys and girls athletic programs Money raised by boosters, contributed by parents or local sponsors is treated as if it were public money appropriated by the school district for Title IX purposes. It is the responsibility of the district to ensure that outside financing does not tip the balance, making the athletic experience inequitable for girls or boys.

BOOSTER CLUBS AND PRIVATE DONATIONS When inequity results from gifts given along gender lines it is the responsibility of the district to correct the inequity by allocation of their own resources.

CONSEQUENCES OF NON-COMPLIANCE 1.Loss of federal funding 2.Injunctive relief 3.Monetary damages 4.Punitive damages for willful noncompliance 5.Attorney’s fees

PLAN OF ACTION 1.Review/update policies 2.Self evaluate programs 3.Develop plan to remedy any inequalities 4.Appoint Title IX coordinator 5.Control Booster Clubs

CONTROL OF BOOSTER CLUBS 1.Dissolve “sport-specific” booster clubs 2.Pair booster clubs by sport 3.Provide guidance/training concerning fundraising techniques for the underrepresented gender 4.Allocate all public funds to underrepresented gender 5.Control booster club spending and allocate to create gender equity 6.Reject donations outright

EQUAL OPPORTUNITIES FOR DISABLED STUDENTS

SECTION 504 OF THE REHABILITATION ACT Requires school districts to provide a qualified student with a disability an opportunity to benefit from the school district’s program equal to that of students without disabilities

OCR’S 1/25/13 “DEAR COLLEAGUE LETTER” Provides guidance on compliance with section 504: Do not act on generalizations and stereotypes about a disability generally or about the capabilities of students with that disability Provide reasonable modifications, aides and services if those do not fundamentally alter the program or provide an unfair advantage (may still require a level of skill or ability to participate) Provide separate opportunities as needed/ work with community to provide alternatives

CONCERNS EXPRESSED BY NATIONAL SCHOOL BOARDS ASSOCIATION Possible expansion of OCR authority Confusing blend of enforcement standards (FAPE v. equal opportunity to participate) Whether it simply provides guidance (as stated by OCR’s spokesperson) or adds additional law and enforcement standards