Title IX decision, a reminder on equality in athletics
(Calif.) With an appeals court finding last month that a Southern California district violated federal discrimination protections, legal experts suggest that schools undertake a thorough review of their athletic programs to make sure they are providing equal opportunities based on gender.
The Sweetwater Union High School District failed to provide equal athletic opportunities for female students and was accused of, among a number of discriminatory actions, retaliating against one group of athletes by firing their softball coach.
“This case is significant because it provides specific guidance on a school district's obligation to provide equal athletic opportunities under Title IX,” Edward Sklar and Desiree Serrano of the education law firm Lozano Smith said in a statement. “If athletic opportunities are not substantially proportionate, the school district should develop a plan for expanding its program and assessing the developing interest and abilities of the gender that is underrepresented.”
Title IX of the Education Amendments of 1972 was put in place to protect people from gender-based discrimination in all educational programs that receive federal funding. But numerous cases have been brought against schools specifically for failing to provide girls with equal athletic opportunities – including equitable equipment and facilities, both of which were among the issues cited in Ollier v. Sweetwater Union High School District.
Plaintiffs in the class action suit said that they had not been provided equal facilities for games, practices or training sessions, locker rooms, equipment and supplies, transportation vehicles, scheduling of games and practice times, funding, publicity, coaches or athletic participation opportunities.
In reaching its decision, the Ninth Circuit Court of Appeals used a three-part test to determine whether the district’s athletic program effectively accommodated the interests and abilities of students by:
- Providing participation opportunities to male and female students in numbers “substantially proportionate” to their respective enrollment;
- Showing a history and continued practice of expanding its program in response to developing interests and abilities of members of each gender; and
- Fully and effectively accommodating the interest and abilities of each gender.
“As a general rule, a court will find that participation is substantially proportional if the number of additional athletes required to be exactly proportionate would not support the creation of a new sports team,” Sklar and Serrano said.
The school was found to have not met the “substantially proportionate participation” criteria because it needed nearly 50 more female athletes to match the exact proportionality to male athletes, which is more than enough to warrant the creation of more female sports teams.
In arguing for the second part of the test, the school pointed out that it had increased the number of athletic teams on which females could play over the past 10 years, but the court determined that it is the number of athletes, not teams, that matters. And because the number of female athletes at the school had fluctuated drastically over the previous four years, the school failed to demonstrate a history and continuing practice of program expansion.
Assessing whether that imbalance was simply a reflection of a lack of interest in athletics is the basis of the third test. In this case, the high school had also recently eliminated its field hockey team. Since the school couldn’t show that this was due to a lack of sufficient interest, ability to sustain a team in that sport or an expectation of competition, it failed that test as well.
In addition to holding that the district had failed to effectively accommodate the interests and abilities of female athletes, it also found that students suffered retaliation after a parent complained about Title IX violations to the athletic director.
“The school fired the softball coach and replaced him with someone less experienced, canceled the team's annual awards banquet and did not allow the team to participate in a tournament attended by college recruiters,” Sklar and Serrano said.
Although the school provided reasons for firing the coach, including several errors he’d made in performing his duties such as playing an ineligible student and forcing the softball team to forfeit games as a result. However, that occurred during the 2004-‘05 school year, and the coach was not reprimanded at the time or fired until more than a year later when Title IX complaints were made.