In April 2023, the U.S. Department of Education’s (Department) released a notice of proposed rulemaking (NPRM) on Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams. The final rule is expected to be released in spring 2024. For highlights from the Department’s NPRM, see our blog post available here.

Last winter, the Department’s Office for Civil Rights (OCR) released three resources to support equal opportunity in athletics under Title IX of the Education Amendments of 1972 (Title IX). OCR designed the documents to help school communities evaluate whether a school is meeting its legal duty to provide equal athletic opportunity based on sex, consistent with Title IX. OCR’s resources include an overview resource that provides examples of situations that could raise Title IX concerns and two specialized resources—one for K-12 schools and one for colleges and universities—to help schools evaluate their individual athletic programs. A summary of key points from the resources is included below.

Supporting Equal Opportunity in School Athletic Programs: A Resource for Students and Families, available here.

• This resource provides examples of situations that could raise Title IX concerns at any education level, including men’s teams receiving new athletic apparel and gear each year and women’s teams using old apparel and purchasing their own equipment; boys’ baseball team playing on a turf field of excellent quality while a girls’ softball team plays on a poorly maintained grass field with holes and other issues; and a college disproportionally awarding more athletic financial assistance to men than women.
• This resource provides guidance for what individuals can do if they think that a school is not offering equal opportunity under Title IX in its athletic program. The resource directs individuals to notify the athletic director or other school official and provides information on how to file a complaint with OCR.
• This resource also provides additional information and resources for individuals who wish to learn about schools’ responsibilities under Title IX to offer equal opportunity in their athletic programs.

Title IX and Athletic Opportunities in K-12 Schools: A Resource for Students, Parents, Coaches, Athletic Directors, and School Communities, available here.

• This resource provides background on Title IX, information on how to evaluate a school’s athletic program, and guidance on what to do if you think your school’s athletic program violates Title IX. The resource explains that equal opportunity in K-12 school athletic programs is measured by (1) the benefits, opportunities, and treatment given to boys and girls teams and (2) how a school is meeting students’ athletic interests and abilities. OCR includes information on these two points and sample questions to be asked of the schools.
• This resource specifies that when a school offers both boys and girls athletic teams, the Title IX regulations require the school offer equivalent benefits, opportunities, and treatment overall. OCR provides sample questions related to the following categories: equipment and supplies; scheduling games and practice time; travel and daily allowance; coaching; locker rooms and fields, courts, or other facilities; medical and training facilities and services; and publicity.
• Under OCR’s approach to evaluating whether a school’s athletic program complies with Title IX, a school can choose 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 bodies:
  • Substantial Proportionality: This option looks to whether the percentage of girl and boy participants on athletic teams are about the same as, or “substantially proportionate” to, the percentage of girls and boys enrolled at the school.
  • History and Continuing Practice: This option looks at whether a school can show it has a history and continuing practice of expanding its athletic program to respond to the interests and abilities of girls, if girls have been underrepresented, or boys, if boys have been underrepresented.
  • Interests and Abilities of Students: This option asks whether a school can show that, despite the disproportionality, it is otherwise meeting the interests and abilities of the underrepresented sex.
• The resource provides guidance for school community members on how to file a complaint with OCR or their school’s grievance procedures.

Title IX and Athletic Opportunities in Colleges and Universities: A Resource for Students, Coaches, Athletic Directors and School Communities, available here.

• This resource includes background on Title IX, information about how to evaluate a school’s athletic program, and what to do if you think your school’s athletic program is violating Title IX.
• This resource includes substantially similar information to the K-12 resource. However, it also includes consideration of recruitment opportunities and athletic scholarships and financial assistance.

What this means to you

Athletic Directors and school administrators should familiarize themselves with the guidance released by OCR to ensure that their schools are meeting their obligations under Title IX and also prepare for the upcoming regulations to be released this spring, which will likely take effect fall 2024.

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