Breaking Down Barriers - National Women's Law Center

Breaking Down Barriers
A Legal Guide to Title IX
and Athletic Opportunities
The National Women’s Law Center
and DLA Piper
Feb. 5, 2009
© 2009 National Women’s Law Center 1

Who’s Who
• NWLC: The National Women’s Law Center is a
Washington-based nonprofit organization that has
worked for over 35 years to expand opportunities
and eliminate barriers for women and their families,
with a major emphasis on women’s education and
employment opportunities, health, and family
economic security.
• DLA Piper: DLA Piper is a global legal services
organization with 3,200 lawyers located in 24
countries and 63 offices throughout Asia, Europe,
the Middle East, and the United States. Its clients
include local, national, and global companies across
a wide range of sectors. DLA Piper is committed to
pro bono work and to helping its attorneys give
back to their communities.
© 2009 National Women’s Law Center 2

Speakers for this
Session
© 2009 National Women’s Law Center 3

Moderator:
Robin Williams
Associate
DLA Piper
Robin.Williams@dlapiper.com
Since joining DLA Piper US LLP in 2000, Ms. Williams
has handled a broad range of matters ranging from intellectual
property claims to franchise and business disputes. She has
worked most extensively in mass tort litigation involving
consumer and pharmaceutical products. Ms. Williams was
the team leader for the firm’s signature pro bono project which
focused on providing research and editorial assistance to the
National Women’s Law Center (NWLC) in connection with the
publication of Breaking Down Barriers. She is also a member of
Leadership 35, the NWLC's high-level advisory committee that
provides the Center with advice and support on critical issues
that affect women and their families.
© 2009 National Women’s Law Center 4

Presenter:
Neena Chaudhry
Senior Counsel
National Women’s Law Center
NChaudhry@nwlc.org
Neena Chaudhry is Senior Counsel at the National Women's
Law Center, where since 1997 she has focused on gender equity
in education issues, particularly Title IX. Ms. Chaudhry has
served as counsel on key Title IX cases, engaged in legislative
advocacy on behalf of women and girls, and addressed gender
equity in education issues in the media and before key national
audiences throughout the U.S.
Ms. Chaudhry received her J.D. from Yale Law School and her
B.A. from the University of Maryland at College Park.
© 2009 National Women’s Law Center 5

Presenter:
Christie Turner
MARGARET Fund Fellow
National Women’s Law Center
CTurner@nwlc.org
Christie Turner is the MARGARET Fund Fellow at the National
Women’s Law Center, where she works on the Education and
Employment team. Christie has worked on a variety of gender
equity issues at the Center, including Title IX compliance in the
areas of athletics and career and technical education. Thanks in
part to Title IX, Christie is proud to have been a multiple sport
high school athlete.
© 2009 National Women’s Law Center 6

Survey Question
Please share a little about yourself.
Submit the answer that best
describes you:
• Attorney at a law firm
• Attorney at a nonprofit organization
• Government attorney
• Law student
• Educator
• Advocate (non-lawyer)
© 2009 National Women’s Law Center 7

Introduction
• This presentation is based on the second edition of
Breaking Down Barriers, which is available at
http://www.nwlc.org/details.cfmid=3061&section
=athleticshttp://. .
•Breaking Down Barriers is a guide to asserting Title
IX claims challenging athletics discrimination. It
provides a concise introduction to the enforcement
of Title IX by private parties, with a focus on the
rights of student-athletes.
•Breaking Down Barriers is a resource primarily for
plaintiffs and their attorneys, but also school
counsel; university, middle, and high school
administrators; women and girls in athletics; and
others who are interested in familiarizing
themselves with the governing legal principles.
© 2009 National Women’s Law Center 8

Remember
• The courts are not the only avenue for addressing sex
discrimination in athletics, although they have been
instrumental in opening up opportunities for many
young women. Other options include:
– working through an institution’s internal processes
– filing complaints with federal/state administrative
agencies, or
– using media and public education strategies.
– At the high school level in particular, school systems are
often willing to correct inequalities through settlement
agreements without the need for a lawsuit.
• Individuals/organizations considering legal action
should consult with their own counsel before deciding on
a course of action. Breaking Down Barriers is intended to
provide information on legal developments related to
Title IX. It should not be construed as legal advice or a
legal opinion on specific facts.
© 2009 National Women’s Law Center 9

Overview of Presentation
• Facts about Title IX and Athletics
• Legal Principles Governing Title IX
and Athletics
• Challenges to Title IX’s Three-Part
Test
• Remedies in Title IX Athletics Cases
• Selected Title IX Practice Issues
• Legislative Developments
© 2009 National Women’s Law Center 10

Facts about Title IX
and Athletics
© 2009 National Women’s Law Center 11

• Title IX of the Education Amendments
of 1972 is the primary federal law
barring sex discrimination in all facets
of education, including athletics.
• In the area of athletics, Title IX requires
that:
– members of both sexes have equal
opportunities to play sports
– athletic scholarships be allocated equitably
– men and women be treated fairly with
respect to the benefits and services
accompanying participation
© 2009 National Women’s Law Center 12

☺ Good News: Female Sports
Participation Has Skyrocketed
Girls’ Participation in Athletics Before and After Title IX
4,500,000
4,000,000
3,500,000
3,000,000
2,500,000
2,000,000
GIRLS
BOYS
1,500,000
1,000,000
500,000
0
1971 2005-2006
© 2009 National Women’s Law Center 13

☹ Bad News:
Discrimination Persists
• Women and girls at all levels of education
are still being denied opportunities to play
sports, and equal benefits and services
when they do play.
• While 53% of the students at Division I
colleges are women, female athletes
receive only 32% of total recruitment
dollars, 37% of total athletic expenditures
and 45% of total athletic scholarship
dollars.
© 2009 National Women’s Law Center 14

Legal Principles
Governing Title IX
& Athletics
© 2009 National Women’s Law Center 15

Major Sources of Authority
• Statute (1972): 20 U.S.C. §§ 1681-87
• Regulations (1975) : 34 C.F.R. Part 106
• Policy Interpretation, Title IX and Intercollegiate
Athletics (1979): 44. Fed. Reg.
71,413
• Title IX Investigator’s Manual (1990)
• Policy Clarifications Re: Three-Part Test
(1996, 1998, 2003, and 2005)
• OCR Policy Letters (e.g., 2000 and 2001
letters re: cheerleading)
© 2009 National Women’s Law Center 16

The Scope of Title IX
• The Supreme Court has repeatedly held that
Title IX is broad in scope:
– All programs of an institution that receives
federal money are covered.
Civil Rights Restoration Act of 1987, overturning
Grove City College v. Bell (1984)
– It prohibits employment discrimination in
federally funded education programs.
North Haven Bd. of Educ. v. Bell (1982)
– It prohibits retaliation against anyone who
protests sex discrimination and is punished for it.
Jackson v. Birmingham Bd. of Educ. (2005)
© 2009 National Women’s Law Center 17

Definition of Recipient
• All educational institutions that receive
federal funds—including public and some
private elementary and secondary schools
and virtually all colleges/universities—are
subject to Title IX.
• Funds need not be received directly;
indirect funding triggers coverage.
• Institutions might be covered even absent
a direct link to federal aid – e.g., Sixth
Circuit has held that high school athletic
association is subject to Title IX because it
exercises “controlling authority” over
member schools, which receive federal
funds.
© 2009 National Women’s Law Center 18

Title IX Athletics Framework
• The Title IX regulations provide that “no person
shall on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated
differently from another person or otherwise
discriminated against in any interscholastic,
intercollegiate, club or intramural program.”
• The Policy Interpretation sets forth three areas
in which schools must treat males and females
equally:
1. Participation opportunities
2. Athletic financial aid; and
3. All other athletic benefits and opportunities.
© 2009 National Women’s Law Center 19

Participation Opportunities
• The Three-Part Participation Test: To
comply with Title IX’s participation
requirements, a school must demonstrate
one of the following:
– Prong 1: that the percentages of male and
female athletes are substantially proportionate
to the percentages of male and female students
enrolled; or
– Prong 2: that it has a history and continuing
practice of expanding athletic opportunities for
the underrepresented sex; or
– Prong 3: that its athletics program fully and
effectively accommodates the interests and
abilities of the underrepresented sex.
© 2009 National Women’s Law Center 20

Prong One
• There must be a close fit between female
and male enrollment and female and male
athletic participation.
– For example, a five percent disparity between
female enrollment and participation is not
substantial proportionality.
• BUT, if the number of additional
opportunities that would be provided if
exact parity were achieved is not sufficient
to sustain a viable team, the institution will
be considered in compliance.
© 2009 National Women’s Law Center 21

What Is a “Sport”
• The Department of Education’s Office for Civil
Rights (OCR) determines whether an activity is a
sport, and thus whether participants in that activity
can be counted as athletes, on a case-by-case basis,
using a long list of factors, which include:
whether selection for a team is based on
objective factors related primarily to athletic
ability;
whether the activity is limited to a defined
season;
whether the activity is administered by the
athletic department
whether the primary purpose of the activity is
athletic competition and not the support or
promotion of other teams
© 2009 National Women’s Law Center 22

Prong Two
• A history of program expansion can be shown by:
– Adding or upgrading teams;
– Adding individual player slots; and
– Affirmative responses to requests by students or others
for addition or elevation of sports teams.
• A continuing practice of program expansion can be
established through evidence of:
– An institution’s policy to allow student requests for the
addition or elevation of sports teams and effective
communication of the policy to students; and
– An institution’s current implementation of a plan of
program expansion that is responsive to developing
interests or abilities.
– But plans to expand women’s programs at some
unspecified future date do not constitute the requisite
program expansion!
© 2009 National Women’s Law Center 23

Prong Three
• An institution will be in compliance with
Prong Three unless there is a sport for
the underrepresented sex which meets
the following conditions:
a. Unmet interest sufficient to sustain a varsity
team in the sport(s); and
b. Sufficient ability to sustain an
intercollegiate team in the sport(s); and
c. A reasonable expectation of intercollegiate
competition for a team in the school’s
normal competitive region.
© 2009 National Women’s Law Center 24

Assessing Unmet Interest
• Under the 1996 Policy Clarification, schools
must consider multiple factors, including:
– Requests by students and admitted students to
add or upgrade to varsity a particular sport;
– Student participation in club or intramural
sports;
– Interviews with students, admitted students,
coaches, administrators, and others regarding
interest in particular sports;
– Results of any interviews and questionnaires of
students re: interests in particular sports; and
– Past participation by admitted students in
particular interscholastic sports.
© 2009 National Women’s Law Center 25

Assessing Sufficient Ability
• The focus under prong three should be on
potential, not actual, ability of current and
admitted underrepresented students to
form varsity teams.
• Indications of ability include:
– Athletic experience and accomplishments in
interscholastic, club or intramural competition;
– Participation in other sports with similar skills
and abilities required;
– Self-assessment of the ability to compete;
– Tryouts in the particular sport in which there
is an interest; and
– Opinions of coaches, administrators, and
athletes regarding whether interested students
have the potential to sustain a varsity team.
© 2009 National Women’s Law Center 26

Assessing a Reasonable
Expectation of Competition
• If there is sufficient interest and potential
ability, an institution fails Prong Three
unless there is no reasonable expectation
of competition in its normal competitive
region.
• Institutions may have an obligation
actively to encourage the development of
competition where opportunities for the
underrepresented sex within their
competitive region have been limited.
© 2009 National Women’s Law Center 27

Have These Schools Met the
Three-Part Test
• Hogwarts High School has a student body that is
49% male and 51% female. Its athletes are 51%
male and 49% female.
• Potter Regional High School last added a team for
girls in 2003 and plans to add an equestrian team
in 2009.
• Snape School does not offer proportionate
opportunities to girls and does not have a history
and practice of adding opportunities for them. It
has sent a survey to its female students asking
about their athletics interests but got very few
responses.
© 2009 National Women’s Law Center 28

Athletic Financial Aid
• Under Title IX, female and male shares of
athletic financial aid must be substantially
proportionate to the female and male
shares of participation opportunities.
• Focus is on the overall dollar amount
provided rather than the number of
scholarships.
• In general, scholarship dollars awarded
male and female athletes must be within
one percent or one scholarship,
whichever is greater, of their
participation rates, absent a legitimate
nondiscriminatory reason.
© 2009 National Women’s Law Center 29

Other Athletic Benefits
and Opportunities
• Title IX requires equal treatment in all other
aspects of athletic programs as well,
including:
– equipment and supplies;
– scheduling of games and practice times;
– travel and per diems;
– opportunities to receive coaching and tutoring,
and assignment and compensation of them
– locker rooms and practice and competitive
facilities.
– medical and training facilities and services;
– housing and dining facilities and services; and
– publicity.
© 2009 National Women’s Law Center 30

Is this a
violation
The girls’ softball
field at Bowie
High School
The boys’
baseball field at
Bowie High
School
© 2009 National Women’s Law Center 31

Additional Points
• There is no requirement that schools spend the
same amount on male and female athletes, but
differences in spending can raise red flags about
second-class treatment.
• That money is provided by a booster club or other
outside funding to support a team is not a defense
to disparities in benefits or services.
• Provisions addressing coaching and tutoring create
two sets of rights: those of the coaches/tutors not to
be discriminated against and those of the studentathletes
to receive equal quality coaching and
tutoring.
• Schools must treat males and females equally with
respect to recruitment.
© 2009 National Women’s Law Center 32

Challenges to Title IX’s
Three-Part Test
• ARGUMENT: Title IX imposes quotas.
• RESPONSE:
– The concept of quotas is misplaced in athletics
because males and females are not competing for
the same slots. Schools decide how many fixed
opportunities they will provide to men and
women, and the three-part test simply measures
whether schools are allocating these
opportunities equally. The federal courts have
unanimously rejected the quota argument.
– There are three separate ways to comply, so
schools do not have to, and most don’t, satisfy
proportionality.
© 2009 National Women’s Law Center 33

• ARGUMENT: Title IX requires schools to cut men’s
teams.
• RESPONSE:
– Title IX does not require or encourage schools to
cut any teams, and the Department of Education
has stated that cuts are disfavored.
– Courts recognize that schools cut teams for
numerous reasons unrelated to Title IX,
including the desire to achieve a particular
competitive level, changing interests of students,
and budgetary demands.
– Even when schools have reduced men’s
opportunities in order to come into compliance
with Title IX, courts have uniformly held that
those decisions do not offend either statutory or
constitutional standards.
© 2009 National Women’s Law Center 34

Remedies in Title IX
Athletics Cases
– Damages (compensatory and possibly punitive)
– Injunctive relief through reinstatement,
instatement, or elevation of teams; ordering the
hiring of coaches, the recruitment of players, or
improvement of uniforms or facilities.
– Equitable relief such as the award of
scholarships denied because of discrimination
– Award of attorneys’ fees to prevailing plaintiffs
in litigation or as part of a settlement or courtordered
consent decree.
© 2009 National Women’s Law Center 35

Selected Title IX
Practice Issues
• Administrative exhaustion requirement
– No. Title IX plaintiffs need not exhaust
administrative remedies before bringing private
actions.
• Statutes of Limitations
– Administrative complaints: complaints must be
filed within 180 days of the discriminatory act,
unless the Department of Education extends the
time for filing.
– Judicial Proceedings: The statute of limitations is
that of the state cause of action most similar to the
plaintiff’s claim, typically that applied to personal
injury claims. Counsel should research this area
carefully to determine the most appropriate statute
of limitations.
© 2009 National Women’s Law Center 36

Who has Standing to Sue
in a Title IX Case
• Depends on type of claim:
– Participation claims: Courts have
uniformly recognized that female students
who seek to participate in a sport at a level
not offered by the school have standing to
bring a program-wide participation claim.
– Scholarship and Treatment Claims:
Students seeking to challenge inequities in
scholarships and the treatment of athletes
must already participate in the school’s
athletic program.
© 2009 National Women’s Law Center 37

Proof of Intent in Title IX
Athletics Cases
• Due to the sex-segregated nature of sports
programs, any differing treatment of
men’s and women’s teams by an
educational institution constitutes
intentional discrimination.
• Intent under the law means a defendant’s
intent to treat men and women differently,
regardless of defendant’s subjective
motive or ignorance of the law. There is
no requirement to show animus, malice or
any other evidence of motive.
© 2009 National Women’s Law Center 38

Legislative Developments
• The Equity in Athletics Disclosure Act (1994) is a
federal law that requires colleges and universities
to make publicly available an annual report on the
athletic opportunities and resources provided to
male and female students, including:
– numbers of male and female participants
– total operating expense for men’s and women’s sports
– numbers of male/female head coaches
– numbers of male/female assistant coaches
– amount of athletic scholarship dollars allocated to
males/females
– salaries for coaches
– amount of recruiting dollars allocated to males/females
• There is no such requirement for high schools, but
bills will be introduced in Congress soon
addressing this issue.
© 2009 National Women’s Law Center 39

Conclusion
• Title IX and the developing case law set
forth clear standards for schools to follow
to ensure that they are treating their male
and female students fairly in athletics.
• Litigation has proven to be an essential
tool in the fight to secure gender equity in
athletics and will likely continue to play an
important role.
• Much work remains to be done to fulfill
the promise of Title IX.
© 2009 National Women’s Law Center 40

For More Information
• About Title IX, please visit:
– www.nwlc.org
– www.titleix.info
• About Breaking Down Barriers, including
how to get a copy of the guide, please visit
http://www.nwlc.org/details.cfmid=306
1&section=athleticshttp://
• About how to get a copy of this
presentation:
– Stay tuned! We will send you an email
with a link to this power point and a
voice recording of today’s presentation.
© 2009 National Women’s Law Center 41

Survey Question
• We hope this webinar has been useful for
you. Please let us know what you thought:
– On a scale of 1 to 5, with 1 being the least
helpful and 5 being the most helpful, how
helpful was this webinar to you (1,2,3,4,5)
© 2009 National Women’s Law Center 42

Questions
• We will take questions by chat now.
© 2009 National Women’s Law Center 43