Title IX Athletic Compliance Review Melissa A. Hewey Elek A. Miller 84 Marginal Way, Suite 600 Portland, Maine 04101-2480 (207) 772-1941 1 Table of Contents Objectives and Scope …………………………………………………………………………................3 Purpose and Applicability of Title IX ………………………………………………………………….3 Title IX Mechanics and Audit Methodology …………………………………………………………..3 Organization of the Report ……………………………………………………………………………..5 Effective Accommodation of Student Interests and Abilities ………………………………………...6 Opportunities to Compete ………………………………………………………………………...7 Levels of Competition …………………………………………………………………………...12 Conclusion ………………………………………………………………………………………13 Equal Treatment ……………………………………………………………………………………….14 Provision of Equipment and Supplies …………………………………………………………...15 Scheduling of Games and Practice Times ………………………………………………………21 Travel and Per Diem Allowance ………………………………………………………………...23 Assignment and Compensation of Coaches ……………………………………………………..27 Locker Rooms, Practice, and Competitive Facilities ……………………………………………36 Medical and Training Facilities and Services ……………………………………………...........40 Publicity …………………………………………………………………………………………41 Provision of Support Services …………………………………………………………………...41 Incidental Benefits ………………………………………………………………………………42 2 Portland Public Schools, ME Title IX Athletic Compliance Review OBJECTIVES AND SCOPE The objectives of this report are to summarize the purpose and applicability of Title IX, and evaluate whether the high school athletic programs at Portland Public Schools (PPS)1 are in compliance with the requirements of Title IX and its accompanying regulations. This report has been produced at the request of Portland Public Schools, and covers the 2007-08, 2008-09, and 2009-10 school years. PURPOSE AND APPLICABILITY OF TITLE IX Title IX prohibits discrimination on the basis of sex in programs or activities receiving federal financial assistance from the Department of Education. Section 901(a) of Title IX of the Education Amendments of 1972 states that, “[n]o 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 . .”2 The law is intended to prohibit gender- based discrimination in any educational program or activity that receives federal funds. With some exceptions, Title IX covers all aspects of an educational program or activity. Athletics are considered an integral part of an institution’s education programs, and are therefore included under this law. TITLE IX MECHANICS AND AUDIT METHODOLOGY The Department of Education, as a federal department empowered to extend federal financial assistance to any education program or activity, has been directed to promulgate rules and regulations consistent with the objectives of Title IX.3 Pursuant to this directive, the Department of Education promulgated the following regulation: No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person, or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such activities separately on such basis.4 1 The scope of this report encompasses enrolments at Deering, Portland, and Casco Bay High Schools. Because Casco Bay does not offer its own athletics, students enrolled at that school participate in sports at one of the City’s two other public schools. This report therefore analyzes the athletic programs at Deering and Portland High Schools. 2 20 U.S.C. §1681(a) . 3 20 U.S.C. §1682. 4 34 C.F.R. §106.41(a). 3 This directive provides for equal opportunity for men and women (and boys and girls) to participate in intercollegiate and interscholastic sports: “[a] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.”5 This Report focuses on the interscholastic boys and girls athletic programs at Portland and Deering high schools. The Department of Education regulations establish two components to Title IX’s equal athletic opportunity requirement: 1) effective accommodation, and 2) equal treatment. Effective accommodation requirements derive from the first factor listed below—accommodation of athletic interest and abilities—and equal treatment requirements derive from the remaining factors. According to a recent Ninth Circuit opinion addressing a Title IX claim, “[e]ffective accommodation claims . concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics.”6 Consequently, an institution can violate Title IX in three ways: 1) by failing to effectively accommodate student interests and failing to provide equal treatment; 2) solely by failing to effectively accommodate the interests and abilities of student-athletes of both sexes, even if the benefits provided athletes of both sexes are equivalent; or 3) by failing to provide equal benefits to athletes of both sexes, even if their interests and abilities are accommodated. To clarify the athletics-related requirements contained in the Title IX regulation, the Office of Civil Rights and the Department of Education have issued a Policy Interpretation (the “Policy Interpretation”) to provide guidance on how schools can comply with the law.7 The Policy Interpretation details thirteen factors to consider when determining whether schools are in compliance with Title IX.8 Because some of those factors apply only in the intercollegiate (as opposed to the interscholastic) context, they were omitted from this analysis.9 In lieu of those factors, the report includes an analysis of a tenth factor called “Incidental Benefits,” which is meant to capture the cost of things such as banquets, awards, and team paraphernalia common to high school sports and most often provided by booster clubs. Accordingly, the factors we have considered are: 1) Accommodation of Athletic Interests and Abilities 2) Equipment and Supplies 5 Id. at (c). 6 Manourian v. Regents of the University of California, 602 F.3d 957 (9th Cir. 2010). 7 Department of Health, Education, and Welfare, Office of Civil Rights (OCR) Policy Interpretation, 44 Fed. Reg. 71413, 71416-18 (1979). 8 Those factors are: 1) Athletic Scholarships 2) Accommodation of Athletic Interests and Abilities 3) Equipment and Supplies 4) Scheduling of Games and Practice Time 5) Travel and Per Diem Allowance 6) Opportunity to Receive Coaching and Academic Tutoring 7) Assignment and Compensation of Coaches and Tutors 8) Locker Rooms, Practice and Competitive Facilities 9) Medical and Training Facilities 10) Housing and Dining Facilities and Services 11) Publicity 12) Support Services 13) Recruitment of Student Athletes 9 “Athletic Scholarships,” “Housing and Dining Facilities and Services” and “Recruitment of Athletics” have no application at the high school level. 4 3) Scheduling of Games and Practice Time 4) Travel and Per Diem Allowance 5) Opportunity to Receive Coaching and Assignment and Compensation of Coaches 6) Locker Rooms, Practice and Competitive Facilities 7) Medical and Training Facilities 8) Publicity 9) Support Services 10) Incidental Benefits This Report is organized around the factors listed above. The methodology for determining PPS compliance with Title IX and evaluating the above factors utilizes multiple instruments and sources of data. These include: 1) a thorough review of the relevant statutory and case law; 2) examination of numerous sources of quantitative data related to various aspects of PPS athletic programs; and 3) review of policies, procedures, rules and guidelines.10 It is important to note that strict equality is not required for Title IX compliance. That is, boys and girls teams do not, for example, need to have the same budgets, the same pieces of new and used equipment, or play the same number of games.11 However, numerous small discrepancies within any of the above factors may lead to a finding of noncompliance.12 The basic method for analyzing the information contained in this Report is to compare the benefits provided boys with the benefits provided girls within specific sub-categories of the above ten factors. Once all sub-categories within a factor have been examined a determination is made regarding whether the differences for each sub-category or all sub-categories combined have a disparate impact on one sex. If so, and the differences cannot be explained by nondiscriminatory justifications, a disparity exists for that particular factor.13 ORGANIZATION The remainder of this report is broken into two primary sections. The first section addresses accommodation of student interests and abilities, and includes an examination of enrollment- proportionate athletic opportunities and advanced opportunities for competition. The second section discusses equal treatment, which encompasses equipment and supplies, scheduling of games and practice time, travel and per diem allowance, opportunity to receive coaching and assignment and 10 The figures in this report are based on information provided by the PPS central office and athletic directors from Deering and Portland and no attempt has been made to independently verify the data. As will be evident from a review of the Report, in certain areas information