Copyright © 2009 Holland & Knight LLP All Rights Reserved

Title IX Florida High School Athletic Association

Compliance Seminar

Nathan A. Adams, IV, Ph.D., Esq.

Partner Holland & Knight LLP

Phone: 850-425-5640

Title IX of the 1972 Educational Amendment 20 U.S.C. § 1681 et seq.; 34 C.F.R. Part 106

• Title IX states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance….”

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What Does Title IX Cover?

• Educational programs and activities

• Course offerings and access

• Athletics

• Recruitment

• Admissions

• Financial aid and scholarships

• Facilities and housing

• Health insurance benefits

• Employment assistance

• Counseling

• Sexual harassment

• Marital and parental status

• Retaliation

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History of Title IX The Beginning

• 1972. Title IX enacted. No direct connection to athletics as opposed to education.

• 1973. Eighth Circuit recognizes in Branden v. Indep. Sch. Dist. that high school sports are an integral facet of education.

• 1974. Javits Amendment requires HEW to issue Title IX regulations.

• 1975. HEW issues final regulations which prohibit any recipient from discriminating against any person on the basis of sex in interscholastic, intercollegiate, club or intramural athletics.

• 1979. Supreme Court rules in Cannon v. Univ. of Chicago that private parties have a cause of action under Title IX.

• 1980. DOE established. OCR given oversight responsibilities.

• 1992. Supreme Court rules in Franklin v. Gwinnett County Public Schools that Title IX plaintiffs are eligible for punitive damages in the event of intentional Title IX avoidance.

But What Falls within Title IX? • 1975. HEW states that Title IX applies

to entire athletic program. • 1984. Supreme Court rules in Grove

City v. Bell that Title IX applies only to programs/activities receiving direct Federal assistance.

• 1987. Civil Rights Restoration Act reverses outcome of Grove City.

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What Triggers Title IX Today?

• Receipt of direct or indirect federal assistance including:

– A grant or loan of Federal financial assistance

– A grant of Federal real or personal property or any interest therein

– Provision of the services of Federal personnel

– Sale or lease of Federal property or any interest therein at nominal consideration

– Any other contract, agreement, or arrangement which has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.

34 C.F.R. § 106.2(g).

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What Data Correlates with Title IX? U.S. Athletic Participation High Schools

0

1,000,000

2,000,000

3,000,000

4,000,000

5,000,000

Boys Participants Girls Partipants

1971-72 1991-92 2001-02 2010-11

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Source: National Federation of State High School Associations

Florida Athletic Participation High Schools

1973-74

2010-11

0

50,000

100,000

150,000

Boys Girls

1973-74 2010-11

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Source: National Federation of State High School Associations

88206 94922 102994

125250 133445 146617 153601 160,997 168,583 175,994

184,426 191,131 175539 183675 186939

206385 200030 208481 209890 214,845

224,926 236,774

245,875 252,946

0

50000

100000

150000

200000

250000

300000

1989-90 1991-92 1993-94 1995-96 1997-98 1999-00 2001-02 2003-04 2005-06 2007-08 2009-10 2010-11

NCAA Championship Sports Participation

Women Men

(Provisional members included from 1995-96 to present.)

Source: NCAA

Title IX History Continued How Do We Comply?

• 1979. HEW issues guidance about the application of Title IX to athletics which includes the “Laundry List” and three-part effective accommodation test

• 1990. Title IX investigational manual published.

• 1996. OCR issues clarifications of three-part effective accommodation test

• 1998. OCR clarifies guidance on substantial proportionality in athletic scholarships.

What Role Should Surveys Play? • 2003. OCR makes recommendations

including that recipients conduct regular surveys to assess student interest in sports.

• 2005. OCR issues clarification letter and User’s Guide to Student Interest Surveys under Title IX (“Guide”) featuring survey instrument as “safe harbor” for third prong accommodation compliance. Nonresponse deemed lack of interest. States that burden of proof is on OCR or plaintiff.

• 2010. OCR issues clarification letter withdrawing its 2005 guidance and Guide. Provides new survey guidelines such as that failure to respond is not lack of interest. Adds that reliance on surveys is not enough.

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Title IX Compliance What Is the “Laundry List”?

• Provision of equipment and supplies (e.g., quality, suitability, amount, maintenance, replacement, & availability)

• Travel and per diem allowances (e.g., mode of transport, housing furnished, length of stay, per diem amount, dining arrangements).

• Scheduling of games and practice times (e.g., preseason and postseason number, length, & time of day)

• Provision of housing and dining facilities and services (including laundry facilities, parking space, maid service)

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2004. The court in McCormick v. Sch. Dist. of Mamaroneck held that denying girls the opportunity to compete at regional and state championship by scheduling the season in spring violated Title IX.

How Do We Ensure Compliance? The “Laundry List”

• Opportunities to receive coaching and academic tutoring (e.g., quality, availability, and funding for full-time and part-time coaches, tutors and grad assistants)

• Assignment and compensation of coaches and tutors (e.g., training, experience, professional standing, contract terms, working conditions and compensation)

• Provision of locker room, practice and competitive facilities (e.g., quality, availability, exclusivity of use, and maintenance)

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How Do We Ensure Compliance? The “Laundry List” Continued

• Provision of medical and training (including conditioning and weight training) facilities and services (e.g., medical personnel, insurance coverage, and athletic trainers).

• Publicity and promotion (including availability and quality of sports information personnel and quantity and quality of publications)

• Recruitment of student athletes (including making financial resources and coaches equally available)

• Support services (including the amount and quality of administrative and clerical support)

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Title IX Compliance How Does OCR Take This into Account?

• The Laundry List. OCR compares “the availability, quality and kinds of benefits, opportunities, and treatment afforded members of both sexes.”

• Nondiscriminatory Factors. If there is a disparity, OCR asks whether it may be justified by nondiscriminatory factors such as “unique aspects of particular sport or athletic activities” and “legitimately sex-neutral factors related to special circumstances of a temporary nature.”

• Overall Assessment. OCR makes an overall assessment about – Whether the policies of an institution are discriminatory in language or

effect – Whether disparities of a substantial and unjustified nature exist in the

institution’s program as a whole – Whether disparities are substantial enough in and of themselves to deny

equality of athletic opportunity.

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How Do We Ensure Compliance? Effective Accommodation – Three Safe Harbors

Whether the institution offers opportunities for males and females substantially proportionate to their respective enrollments; or

Where one sex has been underrepresented, whether the institution has a history and continuing practice of program expansion responsive to the developing interests and abilities of that sex; or

Where one sex is underrepresented and cannot show a continuing practice of program expansion, whether the institution can demonstrate that the interests and abilities of that sex have been fully and effectively accommodated by that present program.

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Substantial Proportionality

• Are the percentages of male and female athletes about the same (within 2%) of the percentages of male and female students enrolled at your school?

• Which athletes? Those who are:

– Receiving institutionally-sponsored support; e.g., coaching, equipment, training.

– Participating in organized practice sessions and other team meetings and activities

– Listed on the eligibility or squad lists maintained for each sport

– Receiving financial aid due to athletic ability, but are injured.

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Program Expansion Test

• Does your school have a (1) history and (2) current practice of expanding athletic programs for women which is responsive to their interests and abilities?

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• OCR states that merely eliminating male teams does not count. (1996 OCR letter)

• OCR prefers adding and upgrading teams and adding participants

What “History” Is Sufficient?

• In Mansourian v. Regents of Univ. of Cal., the Ninth Circuit held that evidence of expanded opportunities from 1996 until 2000 when the university cut a women’s team was inadequate evidence of a history of expansion.

Effective Accommodation Third Test

• For the third prong of the effective accommodation test OCR asks:

Is there unmet interest in a particular sport?

Is there sufficient ability to sustain a team in the sport?

Is there a reasonable expectation of competition for the team?

• If the answer is “yes” to all three questions, OCR will find that an institution is not fully and effectively accommodating the interests and abilities of the underrepresented sex.

2010 OCR Letter

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Effective Accommodation Is There Unmet Interest in a Sport? • In determining whether an institution has unmet interest and

ability to support a team, OCR evaluates these factors: Whether the institution uses nondiscriminatory methods of assessment

when determining the athletic interests and abilities of its students

Are there multiple indicators of interest?

Are there multiple indicators of ability?

What is the frequency of assessments?

Whether a viable team for the underrepresented sex recently was eliminated

Whether there are effective procedures for evaluating requests to add teams and assess participation

Whether a survey may assist in capturing information on students’ interests and abilities

2010 OCR letter 18

How Does OCR Know? Equity in Athletics Disclosure Act

• 1994. Equity in Athletics Disclosure Act (EADA) enacted requiring reporting.

• Requires reporting on the following: • Number of male/female participation slots

• Total operating expenses for men’s and women’s sports

• Number of male/female head coaches

• Number of male/female assistants

• Amount of athletics scholarship money allocated to males/females

• Salaries for coaches

• Amount of recruiting dollars for men/women

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Title IX History Continued Sexual Harassment and Retaliation

• 1997. OCR provides guidance on Title IX prohibitions against sexual harassment.

• 1998. In Gebser v. Lago Vista Independent Sch. Dist., court recognized that high school student may state a claim for sexual harassment under Title IX.

• 1999. Supreme Court held in Davis v. Monroe Cnty. Bd. of Educ. that peer-to-peer sexual harassment is actionable in the event of “deliberate indifference”

• 2001. OCR issues additional guidance on sexual harassment. • 2005. In Jackson v. Birmingham Bd. of Ed., court grants

whistleblower protection under Title IX to individuals who protest sex discrimination.

• 2011. Additional OCR guidance on sexual harassment.

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Sexual Harassment What Does Title IX Prohibit?

• Quid pro quo sexual harassment

• Hostile environment sexual harassment

• Staff-on-student sexual harassment

• Student-on-student sexual harassment

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Sexual Harassment What Is Quid Pro Quo Sexual Harassment?

• Unwelcome sexual advances, requests for sexual favors and other verbal, nonverbal or physical conduct of a sexual nature when

– Submission to such conduct is a term or condition of a student’s participation in a program or activity

– Submission to or rejection of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is used as the basis for an educational decision

– Such conduct has the purpose or effect of unreasonably limiting a students’ ability to participate in or benefit from an educational program or activity or creates an intimidating, hostile or offensive environment.

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Sexual Harassment How Do We Comply With Title IX?

• Schools must establish strong policies and grievance procedures • Schools must disseminate and publicize widely the policies • Schools must designate an employee to oversee its Title IX

compliance activities. • Schools must provide for prompt and equitable resolution of sex

discrimination complaints • Schools must monitor employees to avoid vicarious liability and take

proactive steps to prevent harassment. • Schools must take immediate and appropriate steps upon receiving

notice of possible harassing conduct.

1997 OCR letter; 2001 OCR letter; 2011 OCR letter.

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Title IX Nondiscrimination Student-Athlete Pregnancy

• Students (including student-athletes) cannot be discriminated against in the event of:

– Pregnancy

– Childbirth

– Conditions related to pregnancy

– False pregnancy

– Termination of pregnancy

– Recovery from termination or pregnancy

– Parental or marital status

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No Retaliation

• Retaliation is intentional discrimination on the basis of sex.

• One who witnesses and complains about discrimination is protected from adverse action imposed because of the complaints.

Jackson v. Birmingham Bd. of Educ. (2005).

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Penalties for Noncompliance

• Administrative

– Letter of censure

– Ineligibility to participate in championship and postseason events

– Ineligibility to participate in particular sports

– School district ineligible for competitive state grants

– Withholding by the CFO of general revenue funds sufficient to obtain compliance from the school district.

• Litigation

– Compensatory and Punitive Damages

– Attorney’s fees and costs award

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Florida Educational Equity Act F.S. 1000.05(3)

• (a) No person shall, on the basis of gender, be excluded from participating in, be denied the benefits of, or be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club, or intramural athletics offered by a public K-20 educational institution; and no public K-20 educational institution shall provide athletics separately on such basis.

• (d) A public K-20 educational institution which operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal athletic opportunity for members of both genders….

• There is a private cause of action for violation of F.S. 1000.05 and Rule 6A-19.004.

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F.S. 1000.05(3) Separate Teams • (b) Notwithstanding the requirements of paragraph (a), a public

K-20 educational institution may operate or sponsor separate teams for members of each gender if the selection for such teams is based upon competitive skill or the activity involved is a bodily contact sport.

Integrated Participation Exception. • However, when a public K-20 educational institution operates

or sponsors a team in a particular sport for members of one gender but does not operate or sponsor such a team for members of the other gender, and athletic opportunities for that gender have previously been limited, members of the excluded gender must be allowed to try out for the team offered.

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F.S. 1000.05(3)(d)2; Rule 6A-19.004

• Commissioner’s Job. “The Commissioner of Education shall determine whether equal opportunities are available in school districts…. [T]he Commissioner of Education shall consider, among other factors,” those identified as key for Title IX.

• “Unequal aggregate expenditures for members of each gender or unequal expenditures for male and female teams if a public school … operates or sponsors separate teams do not constitute nonimplementation of this subsection, but the Commissioner of Education shall consider the failure to provide necessary funds for teams for one gender in assessing equality of opportunity for members of each gender.”

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What about Disproportion?

• Florida rule requires a three-year corrective action plan in the event there is not substantial proportionality unless:

– History and Continuing Practice. The institution can show a history and continuing practice of athletic program expansion which can be demonstrated to be responsive to the developing interests and abilities of that sex; or

– Effective Accommodation. The institution can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated

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Title IX Debate Team Sport Cuts

• 1993. The Third Circuit held in Favia v. Indiana Univ. of Penn that university not in compliance with Title IX could not cut women sports even if it would increase overall percentage of opportunities for women.

• 1994. The Seventh Circuit rules in Kelley v. Bd. of T’ees that university not in compliance with Title IX may cut men’s swimming team to comply.

• 1996. In Cohen v. Brown Univ., the First Circuit upholds OCR’s 1979 three-part test; rules that university could not cut women sports team, and finds that cutting men’s sports is a permissible way to meet proportionality.

• 2004. In National Wrestling Coaches Ass’n v. Dep’t of Educ., court rules that association lacks standing to complain about elimination of men’s wrestling teams under Title IX.

• 2009. Supreme Court in Fitzgerald v. Barnstable Sch. Comm. held “deliberate indifference” requires a showing that the institution’s response was “clearly unreasonable” and that Equal Protection claim may accompany Title IX claim.

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Title IX Debate What is a “Sport”?

• 1975. HEW issues final regulations which states that cheerleading is not a sport.

• 2000. OCR issues guidance on what is a sport and presumes against cheerleading.

• 2008. OCR issues clarification of what is a sport and establishes a presumption in favor when a school is part of an athletic organization that has its own definition and requirements.

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Questions?

• Nathan “Nate” A. Adams, IV Partner, Holland & Knight LLP Board Certified Education Lawyer

– 850-425-5640 – nathan.adams@hklaw.com

• This material is for informational purposes only. It is not intended to give specific legal or risk management advice, nor intended to address all possible risk management exposures or solutions. If you would like specific legal advice for your institution, you should retain the services of qualified counsel.