Unless you were born yesterday (which congratulations to Attorney Tyler Coverdale on the newest KSB kid crew member who was born this week! I bet baby Coverdale is equally as excited as school administrators to learn about Title IX from his father.), you have heard us discuss, at length, the 2020 Title IX regulations and the upcoming proposed regulations. However, as schools focus on the sexual harassment component of Title IX, there is a tendency to forget the breadth of the Title IX regulations. In particular, many schools overlook the requirement to provide equal athletic opportunities for members of both sexes in high school interscholastic athletic programs—both in terms of numerical opportunities and in equal experiences (such as quality of coaching, facilities, scheduling, etc.).
Recently, the Sioux Falls School District proposed eliminating the gymnastics program for the 2023-2024 year which resulted in a Title IX lawsuit filed by parents of the participants. The District cited a variety of reasons for cutting the program including declining participation, inability to find coaches, financial considerations, and interest in other extracurricular activities. The District intended to sell the gymnastics equipment in the fall of 2023; however, Plaintiffs sought a preliminary injunction preventing the sale. The court granted the preliminary injunction and halted the sale of the equipment on the grounds that the degree to which the District’s girls were already underrepresented among its athletes was unacceptably high (more than 7%) and that ending the girls gymnastics program would only make things worse. In November, a federal judge upheld the preliminary injunction. This decision also confirmed the sport would continue for the 2023-2024 season.
Before schools make a decision to add or cut a sports program, it is crucial to analyze the Title IX requirements and consider the extent to which a school is offering athletic participation opportunities to both boys and girls in numbers substantially proportionate to their respective share of student enrollment. The law recognizes three separate tests by which schools can show compliance. If a school meets one prong, it is effectively compliant and in a safe harbor. Of the prongs, the one typically utilized by schools to determine compliance examines the percentage of athletic “participation opportunities” for each sex and then compares that figure to that sex’s percentage of the overall student enrollment. The other two prongs are more subjective (which lawyers love) and look at the school’s history of adding opportunities for the underrepresented sex and whether it is sufficiently meeting needs based on current levels of interest. It’s always worth looking at all 3, even if the focus is on proportionality.
In our experience, schools are well served to examine the state of their current athletic programs and to have an understanding of whether they can show compliance. This is best done on a regular basis, before you find yourself responding to a request to add or cut an athletic program. We routinely analyze school district’s athletic programs and provide our advice on the extent to which they can show compliance with their Title IX obligations regarding athletic opportunities and proportionality. Please note, it is clear under Title IX case law that financial concerns are not a reason to engage in gender discrimination. If you are interested in knowing how your current program fits within the Title IX requirements or in learning about how adding (or cutting) other sports may affect your ability to show compliance, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or shoot us all an email at ksb@ksbschoollaw.com.