Title IX Complaints on the Rise: How Audits can help Protect your Athletics Department

1. Introduction

With the 50^th anniversary of Title IX being celebrated this past summer; it is a great reminder for institutions to take a deeper look into their athletics department to ensure they are in compliance or working towards being in compliance with the law.

“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.”[1]

In 1979, the Department of Education (DOE) released a Policy Interpretation providing assistance to institutions with regards to determining whether there are disparities between the institution’s men’s and women’s sports programs in violation of Title IX.[2] The interpretation includes three prongs:

1. Substantial Proportionality: Athletic participation opportunities for male and female students must be provided in numbers substantially proportionate to their respective undergraduate full-time enrollments.
2. History and Continuing Practice of Expansion: Demonstrate a good faith history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex.
3. Fully Accommodating Interests and Abilities: Athletic interests and abilities of male and female students must be equally effectively accommodated.[3]

Since the passing of Title IX, the percentage of female athletes competing on college teams has risen from fifteen percent (15%) to forty-four percent (44%).[4] Despite this progress, there remains a lot of work left to be done in terms of narrowing the gender discrimination gap in college athletics. According to a study conducted by the Women’s Sports Foundation, men currently have sixty thousand (60,000) more collegiate sports opportunities than women. [5] Champion Women, a legal advocacy organization for girls and women in sports, reports that the gap in athletic opportunities provided to men and women has increased by 18% since 2001.[6] Additionally, in thirteen (13) of the last nineteen (19) years, men have been provided more participation opportunities in college athletics than women. Over the course of 2022, one thousand four hundred and ninety-eight (9,498) complaints raising Title IX issues were submitted to the Office of Civil Rights (OCR).[7] Of those complaints, four thousand three hundred and eighty-seven (4,387) involved athletics.[8]

The ramifications for Title IX non-compliance can be devastating for an institution. OCR can suspend or terminate federal financial assistance to schools, including money earmarked for student loans.[9] In past Title IX cases that have been brought to court, schools have had to pay substantial damages and attorney fees. [10]

Considering the current evidence of gender inequity in college athletics, the volume of Title IX complaints being submitted to OCR, and the potential penalties for Title IX non-compliance, institutions

should approach gender equity issues within athletics proactively. Title IX audits are an effective tool in identifying the inequities within an athletics department and ensuring that a plan is in place to address those issues.

1. Champion Women Complaints

Anyone can file a Title IX complaint, regardless of whether they are a victim of alleged discrimination or a person or organization that believes there has been an act of discrimination based on sex.[11] Champion Women, the legal advocacy organization mentioned above, has filed over one hundred (100) Title IX complaints with the OCR.[12] Using athletic department data that institutions report to the Department of Education, Champion Women has been able to calculate potential Title IX violations based on scholarship dollars, participation opportunities, and benefits.[13]

Institutions around the country should be aware that organizations such as Champion Women are dedicated to analyzing publicly available data, making the information user friendly, and issuing Title IX complaints to the OCR. Despite beliefs (genuinely held or not) by institutions that their athletics department is Title IX compliant, the reality is that a Title IX OCR complaint is likely coming to that institution at some point in the future. Therefore, it is in the institution’s best interest, and in the best interest of the institution's female student body, to ensure they are prepared for such an occurrence by preemptively conducting a thorough Title IX assessment of their athletics department.

1. Benefits of a Title IX Audit

A Title IX audit is critical in identifying inequities within athletics and developing a plan that lays out concrete steps towards ensuring Title IX compliance. Outside firms like Church, Church, Hittle + Antrim offer specialized services in conducting thorough Title IX assessments, providing in-depth assessment reports, and coming up with specific recommendations catered towards ensuring Title IX compliance within the institution’s athletics department.

Through an audit, an institution can assess whether its sports effectively accommodate the interest and abilities of members of both sexes by addressing the three prongs described in the introduction. An audit should also evaluate athletics grant-in-aid by focusing on whether the institution provides financial assistance for members of each sex in proportion to the number of students of each sex participating in intercollegiate athletics.

A thorough Title IX audit also considers the following treatment areas: 1) equipment and supplies; 2) scheduling of games and practice time; 3) travel and per diem allowance; 4) coaching and academic tutoring opportunities; 5) assignment and compensation of coaches and tutors; 6) provision of locker rooms, practice and competitive facilities; 7) provision of medical and training facilities and services; 8) provision of housing and dining facilitates and services; and 9) publicity.[14]

Finally, in addition to identifying deficiencies in Title IX compliance, an audit should also provide a recommendations checklist that the institution can use to implement an action-plan towards achieving Title IX compliance. Recommendations can vary from restructuring sport-specific personnel to upgrading specific equipment and everything in between.

A title IX audit provides an outside perspective from professionals who understand the law’s requirements and implications. Many institutions, despite their best efforts, are non-compliant. An audit helps identify inadequacies through collecting data, reviewing facilities, and interviewing staff, third parties, and student-athletes. By identifying inadequacies, institutions can demonstrate that they are being proactive in helping narrow the gender gap within their athletics. The recommendations can then be used by the institution as a roadmap towards Title IX compliance.

Conclusion

While the passing of Title IX was critical in helping ensure female student athletes have the same athletic opportunities and benefits as male student athletes, there remains many inequities in college athletics. Hundreds of institutions across the country are not Title IX compliant, and there are thousands of Title IX complaints being issued every year. Organizations like Champion Women are doing their part in advocating for women and girls in sports, and institutions need to do the same. By conducting a Title IX audit, colleges and universities are demonstrating a commitment towards Title IX compliance while also protecting their best interest.

[1] 20 U.S. Code § 1681

[2] United States Department of Education, Office for Civil Rights, A Policy Interpretations: Title IX and Intercollegiate Athletics (Dec. 11, 1979), available at https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html#:~:text=Title%20IX%20requires%20that%20%22an,cost%20of%20football%20programs%20have

[3] Id.

[4] Women’s Sports Foundation, 50 Years of Title IX: We’re Not Done Yet (May, 2022), available at https://www.womenssportsfoundation.org/wp-content/uploads/2022/05/13_Low-Res_Title-IX-50-Report.pdf

[5] https://www.womenssportsfoundation.org/wp-content/uploads/2022/04/FINAL6_WSF-Title-IX-Infographic-2022.pdf

[6] Women’s Sports Foundation, 50 Years of Title IX, infographic available at https://titleixschools.com/2023/07/17/gender-gap/

[7]United States Department of Education office for Civil Rights, Fiscal Year 2022 Annual Report, available at https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2022.pdf

[8] Id.

[9] U.S. Department of Education Office for Civil Rights: Case Processing Manual (July 18, 2022), available at https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf; What Are Title IX Penalties - Duffy Law (duffylawct.com)

[10] National Women’s Law Center: Breaking Down Barriers; Remedies in Title IX Athletics Cases (2007), available at https://nwlc.org/wp-content/uploads/2015/08/BDB07_Ch5.pdf

[11] Know Your IX, Taking Legal Action Under Title IX, available at https://knowyourix.org/legal-action/taking-legal-action-title-ix/

[12] Champion Women, Inc., All OCR Complaints A-Z (Sep. 12, 2023), available at https://titleixschools.com/2023/09/12/all-ocr-complaints-a-z/

[13] Champion Women, Inc., Project Education, available at https://championwomen.org/title-ix/

[14] 34 C.F.R. § 106.41(c)