February 24, 2023 | Athletics, Blog, Students, Title IX

OCR Releases New Guidance on Title IX and Athletics

by Mike Leasor

On Friday, February 17, 2023, the U.S. Department of Education’s Office for Civil Rights released new Title IX resources released to support equal opportunity in athletic programs.  This included the following two publications:

  • Supporting Equal Opportunity in School Athletic Programs: A Resource for Students and Families PDF
  • Title IX and Athletic Opportunities in K-12 Schools: A Resource for Students, Parents, Coaches, Athletic Directors, and School Communities PDF

The OCR states the following in the release:

OCR designed these resources to help students, parents, coaches, athletic directors, and school officials evaluate whether a school is meeting its legal duty to provide equal athletic opportunity regardless of sex. The overview resource provides examples of the kinds of situations that could, depending upon facts and circumstances, raise Title IX concerns at any education level.

The guidance in the first bullet above is meant for parents and families.  It discusses the basics of Title IX and who the statute applies to.  This guidance goes on to give multiple examples of what discrimination looks like in athletic programs under Title IX.  Finally, the guidance points students and families in the proper direction should they have a complaint.  To OCR’s credit, they tell potential claimants to go to the athletic director or other school official first.

The second bullet point’s guidance is much more detailed and aimed directly at K-12 schools.  It is meant to be a resource for students, parents, coaches, athletic directors, and school communities.  This guidance states that it is:

This resource is designed by the Office for Civil Rights (“OCR”) of the U.S. Department of Education (“Department”) to help K-12 school communities (“schools”), including students, parents, coaches, athletic directors, and school officials, evaluate whether a school is meeting its legal duty to provide equal athletic opportunity based on sex consistent with Title IX of the Education Amendments of 1972 (“Title IX”) and the Title IX regulations.

This resource explains the rights that students have to participate in interscholastic, intramural, or club athletic programs free from discrimination based on sex and may help you evaluate whether your school’s athletic program is providing equal opportunity consistent with Title IX.

The following section of the guidance explains how an athletic program should be evaluated.  This includes how to evaluate the benefits, opportunities, and treatment for boys and girls teams. This is a series of questions designed to determine if a district is offering the above from an overall perspective to both boys and girls teams.  For example, the first question deals with equipment and supplies and states:

Does your school provide athletic gear of equivalent quality, quantity, suitability, condition, and availability for athletes on boys and girls teams? (For example, uniforms, apparel, sports equipment, general supplies)

The next section is designed to determine if the district is meeting students’ athletic interests and abilities.  Here, the guidance states:

Under OCR’s longstanding approach to evaluating whether a school’s athletic program complies with Title IX, your school may choose any one of three ways to demonstrate that it is fulfilling its legal duty to meet the athletic interests and abilities of boys and girls in its student body. These options are commonly referred to as the “three-part test.” Your school has flexibility in choosing one of these options based on the best fit for its community. However, if your school does not satisfy any of these three options, it may not be meeting this aspect of its legal duty under Title IX.

These options include:

  • substantial proportionality, which looks at the percentage of girl and boy participants on athletic teams;
  • history and continuing practice, which looks at whether your school can show it has a history and continuing practice of expanding its athletic programs; and
  • interests and abilities of students, which asks whether your school can show that, despite the disproportionality, it is otherwise meeting the interests and abilities of the underrepresented sex.

The questions in the guidance are meant to assist in determining which option is best used to determine your district’s compliance with Title IX in the athletic program.

This is only meant to be a brief overview of the new guidance and it is recommended that you review both documents for a more thorough understanding.  If you have additional questions or concerns after your review, please do not hesitate to contact any of the attorneys at Leasor Crass, P.C.

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