Gender Equity Planning at the High School Level, Part I: Meeting the Interests and Abilities of Your Student-Athletes [High-School Sports Best Practices Alert (Jan. 2014)]

Author: Justin P. Sievert, Esquire (Senior Counsel)

Title IX of the Education Amendments of 1972, as amended, 20 USC §1681 et. seq., (“Title IX”) prohibits discrimination on the basis of sex in education programs receiving federal financial assistance. A high school athletic department is considered an integral part of a school’s educational mission. Therefore, athletics programs are covered by Title IX. The regulation implementing Title IX ((34 CFR Part 106)) contains specific provisions relating to athletics opportunities, as well as provides schools with considerable flexibility in achieving compliance with the law. The Office for Civil Rights (“OCR”) within the United States Department of Education is responsible for ensuring that athletics programs are operated in a manner that is free from discrimination on the basis of sex. Buckner, which has been retained by universities to conduct Title IX audits, offers a two-part series that outlines how schools can ensure they are in compliance with Title IX. The first entry in this series will summarize the basic requirements of meeting the interests and abilities component of Title IX.

Compliance with the effective accommodation of interests and abilities is assessed in one (or more) of three ways. Thus, if any one of the following three tests is met, your school will comply with Title IX in the area of interests and abilities:

Test 1: Whether participation opportunities for male and female high school athletes are substantially proportionate to their respective enrollments.

The school should count the total number of opportunities or filled slots when counting the number of athletes. For example, one male athlete who participates in football in the fall, basketball in the winter and baseball in the spring would count as three opportunities. The school would then determine the male and female composition of the total number of opportunities or filled slots and compare this number to the male and female composition of the school’s total enrollment. Additionally, schools should note to only include scholastic sports (i.e., if your state does not sponsor cheerleading as a competitive interscholastic sport it would not be included in the total number of opportunities or filled slots).

Test 2: Where the members of one sex have been and are underrepresented among high school athletes, whether the school can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex.

The school should research its history in adding a sport or level of a sport (i.e., freshman, junior varsity, etc.) for the underrepresented gender. The school should determine whether sports or levels of sports have been added on a regular basis, thus demonstrating that the school has improved its ratio between enrollment and athletics participation.

Test 3: Where the members of one sex are underrepresented among high school athletes, and the school cannot show a continuing practice of program expansion, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

The school should conduct (or review) its athletics interest survey of all its high school students to determine if the interests are being met by the current athletic program. If the school has not added a sport where there is interest, the school should ensure it has gathered information that provides a non-discriminatory explanation for why the program of interest has not been added. Justifiable explanations could be a lack of available competition in the institution’s vicinity or not enough interest to field a full team.

Contact Justin P. Sievert (954-941-1844; for additional recommendations relating to Title IX and gender-equity issues.