(Editor’s Note: What follows is part two of a speech given by Elneita Hutchins-Taylor, General Counsel of the Houston Independent School District, at a University of Texas Law CLE conference. Part one appeared in the last issue of Sports Litigation Alert.)
Under the United States Department of Education (DOE) policies, as part of determining whether an institution is effectively accommodating the interests and abilities of male and female athletes, institutions must provide the opportunity both for individuals of each sex to participate in competition, and for athletes of each sex to have competitive team schedules that equally reflect their ability.
The policies permit three alternative ways of assessing whether an institution is providing nondiscriminatory opportunities to students to participate in athletics. An institution is in compliance with Title IX if it has met any one of the following three elements:
The percent of male and female athletes is substantially proportionate to the percent of male and female students enrolled at the school;
The school has a history and continuing practice of expanding participation opportunities for the underrepresented sex; or
The school is fully and effectively accommodating the interests and abilities of the underrepresented sex.
See Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test — Part Three, Department of Education — Office for Civil Rights, March 17, 2005. Each part of the three-part test is safe harbor, and no part is favored by the PCR. The three-part test is intended to allow institutions to maintain flexibility and control over their athletic programs. Thus, if the district complied with part one, it would not have to meet parts two and three and would still be found to comply with Title IX.
The 2011 Title IX compliant required Houston ISD and other districts to look at whether the athletic interested of the underrepresented gender, in this case females, we’re being addressed by the athletic programs offered within the district. A Title IX violation occurs in the school district’s program if there is a disparity between the gender composition of the district’s student body and its athletic programs. The disparity is referred to gender underrepresentation. It is not enough, however, to merely identify a violation of Title IX. The data must show that the underrepresented gender is not fully and effectively accommodated by the district’s present athletic program. Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996).
The presence of football programs in most Texas school districts, which engage large numbers of male students, creates a disparity between the gender composition of the district’s student body as a whole and its athletic program. This finding alone, however, does not create a Title IX violation. As long as the district accommodates fully and effectively the interests of females, the underrepresented gender.
Many school districts will not be able to have numbers proportionate to the percentage of male and female students enrolled in the district. That does not end the Title IX analysis, however. The district can be in compliance with Title IX if it meets either part two or part three of the test. In order to meet compliance with the part two or part three test, the district will have to show a “continued history and practice of expanding participation opportunity for the female student body.” Making that determination will depend on the number of girls teams that have been offered throughout the high schools in the district. Whether the district has added teams and whether the frequency at which the district added teams in which girls can participate is adequate is uncertain. For example, if the number of girls’ teams has decreased over the years, or if there has been some growth, but if it is determined inadequate, the district would not meet part two of the test. If compliance with the second prong is uncertain, the district can still comply with Title IX by meeting the third prong of the test. Under part three, the district must show that it has fully and effectively accommodated the interests and abilities of the underrepresented sex.
Three Elements to Show Accommodation of Interest and Abilities of Girls
To meet compliance under part three, the OCR has given schools three additional elements to consider. An institution will be found in compliance with part three, i.e. a district has fully and effectively accommodated the interests and needs of all students, unless all three of the following elements are present:
Unmet interest sufficient to sustain a varsity team in the sport(s) (sufficient number of players);
Sufficient ability to sustain an intercollegiate team in the sport(s); and
Reasonable expectation of intercollegiate competition for a team in the sport(s) within the school’s normal competitive region.
Under part three of the three-part test, districts are not required to accommodate the interests and abilities of all their students or fulfill every request for the addition or elevation of particular sports, unless all three conditions are present.
The recent Title IX OCR investigation in Houston ISD yielded the following lessons learned. All school districts should review these carefully with their legal counsel and athletic director:
Schools must accommodate the sports interests of the underrepresented sex, which in most cases is girls. Eliminating a boys’ sport, so that the number of sports for girls is equal to the number of sports for boys, is not sufficient.
A sport cannot be eliminated for financial reasons if the impact will be to limit opportunities
schools should provide documentation to support the elimination of a sports. The decision cannot appear to be arbitrary.
Schools must have in place a documented process for responding to requests for new sports. Periodically, (perhaps every two to four years) schools should survey students, especially the underrepresented gender, on what sports students are interested in, and the level of ability from beginner to experienced that the students have in sports of interest.
Title IX Summary
The district will be out of compliance with Title IX if there is a disparity between the gender compositions of the district’s student body and its athletic program, thereby proving that one gender is underrepresented, and also that the underrepresented gender is not fully and effectively accommodated by the district’s present athletic program. The OCR has stated that a district can show that it is effectively accommodating its students and offering non-discriminatory opportunities for each student by meeting any one of the following three parts of the test:
The percent of male and female athletes is substantially proportionate to the percent of male and female athletes enrolled at the school (This is the one that is the easiest to maintain compliance, however, if the football team is open enrollment and the girls are cut from teams, that is the part that the district would likely fail.);
The district has a history and continuing practice of expanding participation opportunities for the underrepresented sex; or
The district if fully and effectively accommodating the interests and abilities of the underrepresented sex.
Title IX complaints can be sticky, but are usually manageable when the district gets counsel involved early on and is committed to resolving the complaint.
