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Title IXTitle IXTitle IX of the Education Amendments of 197220 U.S.C. §§ 1681 et seq.

Prohibits discrimination of the basis of sex in educationprograms and activities that receive Federal financialassistance from the U.S. Department of Education.

Requires recipients which operate or sponsorinterscholastic, intercollegiate, club or intramural athleticsto provide equal athletic opportunities for members ofboth sexes.

The regulations implementing Title IX (34 C.F.R. Part 106)contain specific provisions for athletics programs andathletic scholarships.

Applies to interscholastic, intercollegiate, club andintramural athletic programs receiving federal fundingfrom the U.S. Department of Education.

The Law

Minn. Stat. § 121A.04

Requires each school to provide equalopportunity for members of both sexes toparticipate in its athletic program.

Minnesota Rules Chapter 3535 containsspecific provisions for equal opportunity inschools.

Applies to interscholastic and intramuralathletic programs in public and privateelementary and secondary schools.

Contents Page No.

The Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Guiding Principles Behind the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Factors That Must be Considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Frequently Asked Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Legal Resources and Documents Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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Principles• Title IX seeks true equality of opportunity

for male and female student-athletes inAmerica. (OCR Clarification 2003).

• Nothing in Title IX requires the cutting,capping or reduction of teams in order todemonstrate Title IX compliance. (OCR Q & A 2010).

• Schools have flexibility in providingnondiscriminatory participationopportunities to their students, and OCR does not require quotas. (OCR Clarification 1996).

• There are no strict numerical formulas or“cookie cutter” answers to the issues thatare inherently case – and fact – specific.(OCR Clarification 1996).

• Participation must be real, not illusory.(OCR Clarification 1996).

• Equality of opportunity in America is notrhetoric, but rather a guiding principle.(OCR Clarification 2010).

• Participation in women’s sports is growingrapidly. This growth has not been at theexpense of men’s programs. (OCR Policy Interpretation 1979).

Guiding PrinciplesBehind the Law


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Factors That Must beConsidered

OCR Clarification 2010OCR Q & A 2010OCR Clarification 2003OCR Clarification 1996OCR Policy Statement 1991OCR Policy Interpretation 1979Minn. Stat. § 121A.04Minn. R. 3525.3400

1. Whether the selection ofsports and levels ofcompetition effectivelyaccommodate the interestsand abilities of both sexes

FactorsFactors that must be considered to determinewhether equal opportunities for members of bothsexes to participate in athletic programs are available(34 C.F.R. § 106.41 and Minn. Stat. § 121A.04)

Further Explanation of Each Factor

OCR uses a three-part test as part of determining whether students of bothsexes are provided nondiscriminatory opportunities to participate in athletics.

This three-part test provides schools three individual avenues to choose fromwhen determining how it will provide individuals of each sex withnondiscriminatory opportunities to participate in athletics. If a school has metany part of the three-part test, OCR will determine that the school has met thisrequirement.

The three-parts of the test are:1. Substantial proportionality: The number of male and female

athletes is substantially proportionate to their respective enrollments; or

2. History and continuing practice: The school has a history andcontinuing practice of expanding participation opportunities responsive tothe developing interests and abilities of the underrepresented sex; or

3. Fully and effectively accommodating interests andabilities of the underrepresented sex: The school is fully andeffectively accommodating the interests and abilities of theunderrepresented sex.

OCR considers the effective accommodation of interests and abilities in conjunction withequivalence in the availability, quality and kinds of other athletic benefits and opportunitiesprovided male and female athletes to determine whether an institution provides equal athleticopportunity as required by Title IX. These other benefits include coaching, equipment,practice and competitive facilities, recruitment, scheduling of games, and publicity, amongothers. A school’s failure to provide nondiscriminatory participation opportunities usuallyamounts to a denial of equal athletic opportunity because these opportunities provide accessto all other athletic benefits, treatment, and services. (OCR Clarification 1996).

Under this equivalency standard, identical benefits, opportunities, or treatment are notrequired. If a comparison of program components indicates that benefits, opportunities, ortreatment are not equivalent in quality, availability, or kind, the institution may still be incompliance with the law if the differences are shown to be the result of nondiscriminatoryfactors. Generally, these differences will be the result of unique aspects of particular sports orathletic activities, such as the nature/replacement of equipment and maintenance of facilitiesrequired for competition. This equivalency approach allows schools great flexibility inconducting their athletic programs and maintaining compliance without compromising thediversity of athletic programs among institutions. (OCR Policy Statement 1991).


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Factors That Must BeConsidered

2. The provision andmaintenance of equipmentand supplies

3. Scheduling of games andpractice times

4. Travel and per diemexpenses/allowance

5. Opportunity to receivecoaching and academictutoring

Equipment and supplies include but are not limited to uniforms, other apparel,sport-specific equipment and supplies, general equipment and supplies,instructional devices, and conditioning and weight training equipment.

Compliance will be assessed by examining, among other factors, theequivalence for males and females of:

1) The quality of equipment and supplies;

2) The amount of equipment and supplies;

3) The suitability of equipment and supplies;

4) The maintenance and replacement of equipment and supplies; and

5) The availability of equipment and supplies.


1) The number of competitive events per sport;

2) The number and length of practice opportunities;

3) The time of day competitive events are scheduled;

4) The time of day practice opportunities are scheduled; and

5) The opportunities to engage in available pre-season and post-seasoncompetition.


1) Modes of transportation;

2) Lodging furnished during travel;

3) Length of stay before and after competitive events;

4) Per diem allowances; and

5) Dining arrangements.


1) Relative availability of full-time coaches;

2) Relative availability of part-time coaches;

3) Relative availability of assistants;

4) The availability of tutoring; and

5) Procedures and criteria for obtaining tutorial assistance.


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6. Assignment andcompensation of coaches and tutors

7. Provision of locker rooms,practice and competitivefacilities

8. Provision of medical andtraining facilities

In general a violation will be found only where compensation or assignmentpolicies or practices deny male or female athletes coaching of equivalentquality, nature or availability.

Nondiscriminatory factors can affect the compensation of coaches. Indetermining whether differences are caused by permissible factors, the rangeand nature of duties, the experience of individual coaches, the number ofparticipants for particular sports, the number of assistant coaches supervised,and the level of competition will be considered.

Compliance will be assessed by examining, among other factors, theequivalence for males and females coaches/tutors of:

1) Training, experience, and other professional qualifications;

2) Professional standing;

3) Rate of compensation (per sport, per season);

4) Duration of contracts;

5) Conditions relating to contract renewal;

6) Nature of duties performed;

7) Working conditions; and

8) Other terms and conditions of employment.


1) Quality and availability of facilities provided for practice andcompetitive events;

2) Exclusivity of use of facilities provided for practice and competitiveevents;

3) Availability of locker rooms;

4) Quality of locker rooms;

5) Maintenance of practice and competitive facilities; and

6) Preparation of facilities for practice and competitive events.


1) Availability of medical personnel and assistance;

2) Health, accident and injury insurance coverage;

3) Availability and quality of weight and training facilities;

4) Availability and quality of conditioning facilities; and

5) Availability and qualifications of athletic trainers.



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9. Provision of housing anddining facilities

10. Publicity

11. Expenditures


1) Housing provided; and

2) Special services as part of housing arrangement (e.g., laundry facilities,parking space, maid services).


1) Availability and quality of sports information personnel;

2) Access to other publicity resources for male’s and female’s programs;and

3) Quantity and quality of publications and other promotional devicesfeaturing male’s and female’s programs.

Under Title IX, unequal aggregate expenditures for members of each sex orunequal expenditures for male and female teams if a school operates orsponsors separate teams will not constitute noncompliance; however, thefailure to provide necessary funds for teams for one sex in assessing equality ofopportunity for members of each sex may be considered.

Under Minnesota law, when two teams in the same sport are in fact separatedor substantially separated according to sex, the two teams shall be providedwith substantially equal budgets per participant, exclusive of the salary of thecoach, gate receipts and other revenues generated by that sport, and in all otherrespects shall be treated in a substantially equal manner. When an item(s) ofexpense are not separated, the expense shall be prorated to the teams accordingto the number of participants.



Questions

7

Short Answer

By comparing the percentageof each sex participating insports to their respectiveenrollment percentages.

The National Women’s LawCenter provides the following checklist:

What is the TOTAL number ofstudents in the school?_______

How many are female?____How many are male? ____

What are the percentages offemale and male students?___% female ____% male

What is the TOTAL number ofathletes in the school? _____

How many are female?____How many are male?____

What are the percentages offemale and male students?___% female ____% male

Compare the percentages ofmale and female athletes tothe percentages of male andfemale students enrolled.

Frequently Asked Questions Pertaining to Providing Equal Opportunity

Explanation

Participate: means for interscholastic sports, a student hasbeen selected by the coach to be a member of a particularathletic team, inclusive of varsity, junior varsity, andsophomore teams, after the tryout period has ended.

In determining the number of participation opportunities,an athlete who participates in more than one sport will becounted as a participant in each sport in which he or sheparticipates (duplicate number).

The number of participation opportunities is the sum of theduplicate male participants number and duplicate femaleparticipants number.

To determine the percentage of females participating inathletic opportunities, divide the duplicate femaleparticipants number by the number of participationopportunities.

To determine the percentage of males participating inathletic opportunities, divide the duplicate male participantsnumber by the number of participation opportunities.

Example: Your school’s enrollment is 52% male and 48%female and 52% of the participants in your athletic programare male and 48% female, your school would clearly satisfypart one of the three-part test.

However, because in some circumstances it may beunreasonable to expect a school to achieve exactproportionality — for instance because of naturalfluctuations in enrollment and participate rates or because itwould be unreasonable to expect a school to add athleticopportunities in light of the small number of students thatwould have to be accommodated to achieve exactproportionality — OCR examines whether participationopportunities are “substantially” proportionate toenrollment rates.

Question

Question 1:How do we determineif our school meetspart one – substantialproportionality – ofthe three-part test?

OCR Clarification 1996Minn. R. 3535.3000, subp. 5Minn. R. 3525.3000, subp. 6Minn. R. 3525.3000, subp. 7National Women’s LawCenter Checklist (2000)


8

Short Answer

Maybe.

Probably yes, if …

Probably no, if …

By showing your school has ahistory and continuingpractice of programexpansion which isdemonstrably responsive tothe developing interests andabilities of theunderrepresented sex.

This part looks at a school’spast and continuing remedialefforts to providenondiscriminatoryparticipation opportunitiesthrough program expansion.

Explanation

“Substantial proportionality” is not a statistical test. Rather,the determination of compliance is made on a case-by-casebasis. OCR has clarified that opportunities may beconsidered substantially proportionate when the number ofopportunities that would be required to achieveproportionality would not be sufficient to sustain a team.However, keep in mind the option of cooperating withanother nearby school.

For example, at your school girls make up 52% of theschool’s enrollment, 47% of the athletes, and the athleticprogram consists of only 60 participants. If the schoolprovided girls with 52% of athletic opportunities,approximately 6 additional girls would be able toparticipate. Since 6 participants are unlikely to support aviable team, the school would meet part one.

For example, at your school girls make up 52% of theschool’s enrollment, 47% of the athletes, and the athleticprogram consists of 600 participants. If the school providedgirls with 52% of athletic opportunities, approximately 62additional girls would be able to participate. Because this isa significant number of unaccommodated girls, it is likelythat a viable sport could be added. If so, your school wouldnot meet part one.

OCR will assess whether the program expansion wasresponsive to developing interests and abilities of theunderrepresented sex. In addition, your school mustdemonstrate a continuing (i.e., present) practice of programexpansion as warranted by developing interests and abilities.

OCR will consider the following factors, among others, asevidence that may indicate a history of program expansionthat is demonstrably responsive to the developing interestsand abilities of the underrepresented sex:

1) A school’s record of adding teams for theunderrepresented sex;

2) A school’s record of increasing the number ofparticipants in athletics who are members of theunderrepresented sex; and

3) A school’s affirmative responses to requests bystudents or others for addition or elevation ofsports.

Question

Question 2:If the percentage offemale representationin athleticopportunities is within5% of the percentageof females in thestudent enrollment,are we in compliance?

OCR Clarification 1996

Question 3:How do we determineif our school meetspart two – history andcontinuing practice –of the three-part test?

OCR Clarification 1996

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Short Answer

Under part three, the focus in on full and effectiveaccommodation of theinterests and abilities of theschool’s students who aremembers of theunderrepresented sex.

Explanation

OCR will consider the following factors, among others, asevidence that may indicate a continuing practice or programexpansion that is demonstrably responsive to the developinginterests and abilities of the underrepresented sex:

1) A school’s current implementation of anondiscriminatory policy or procedure forrequesting the addition of sports and the effectivecommunication of the policy or procedure tostudents; and

2) A school’s current implementation of a plan orprogram expansion that is responsive to developinginterests and abilities.

OCR would find persuasive a school’s efforts to monitordeveloping interests and abilities of the underrepresentedsex, for example, by conducting periodic nondiscriminatoryassessments of developing interests and abilities and takingtimely actions in response to the results.

OCR would not find a history and continuing practice ofprogram expansion where an institution increases theproportional participation opportunities for theunderrepresented sex by reducing opportunities for theoverrepresented sex alone or by reducing participationopportunities for the overrepresented sex to a proportion -ately greater degree than for the under represented sex.

OCR will not find that a school satisfies part two where itestablished teams for the underrepresented sex only at theinitiation of its program for the underrepresented sex orwhere it merely promises to expand its program for theunderrepresented sex at some time in the future.

OCR will assess the following three questions:

1) Is there unmet interest in a particular sport?

a) Whether the school uses nondiscriminatorymethods of assessment when determining theathletic interests and abilities of its students;

i) The processes take into account thenationally increasing levels of females’interests and abilities;

ii) The methods of determining interest andability do not disadvantage the members ofan underrepresented sex;

Question

Question 3:(continued)

Questions

Question 4:How do we determineif our school meetspart three – fully and effectivelyaccommodatinginterests and abilitiesof the under -represented sex — ofthe three-part test?

OCR Clarification 2010OCR Q & A 2010OCR Clarification 1996


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Short Answer

In determining compliancewith part three, OCRconsiders all of the followingthree questions:

1) Is there unmetinterest in a particularsport?

2) Is there sufficientability to sustain ateam in the sport?

3) Is there a reasonableexpectation ofcompetition for theteam?

If the answer to all threequestions is “yes,” OCR willfind that a school is not fullyand effectivelyaccommodating the interestsand abilities of theunderrepresented sex andtherefor is not in compliance.

OCR considers multipleindicators in evaluatingcompliance with part threeand will not accept a school’sreliance on a survey alone,regardless of the responserate, to determinecompliance.

OCR does not considernonresponses to surveys asevidence of lack of interest orability in athletics.

Explanation

iii) The methods of determining ability takeinto account team performance records;and

iv) The methods are responsive to theexpressed interests of students capable ofcompetition who are members of anunderrepresented sex.

b) Whether a viable team for the underrepresentedsex recently was eliminated;

i) If a school recently has eliminated a viableteam for the underrepresented sex from theprogram, OCR will find that there issufficient interest, ability, and availablecompetition to sustain a team in that sportand thus there would be a presumptionthat the school is not in compliance withpart three. This presumption can beovercome if the school can provide strongevidence that interest, ability, orcompetition no longer exists.

ii) OCR does not consider the failure bystudents to express interest during a surveyunder part three as evidence sufficient tojustify the elimination of a current andviable team for the underrepresent sex. Inother words, students participating on aviable team have expressed interest byactive participation, and OCR does not usesurvey results to nullify that expressedinterest.

c) Multiple indicators of interest;

i) Requests by students that a particular sportbe added;

ii) Requests for the elevation of an existingclub sport to interscholastic status;

iii) Participation in club or intramural sports;

iv) Interviews with students, admitted students,coaches, administrators and other regardinginterests in particular sports;

v) Results of surveys or questionnaires ofstudents and admitted students regardinginterests in particular sports; and

vi) Participation rates in amateur athleticassociations and community sports leaguesthat operate in areas from which the schooldraws its students.

Question

Question 4:How do we determineif our school meetspart three – fully and effectivelyaccommodatinginterests and abilitiesof the under -represented sex — ofthe three-part test?(continued)


11

Short Answer

OCR evaluates the overallweight it will accord theresults of a survey byexamining the followingfactors, among others:

1) Content of thesurvey;

2) Target populationsurveyed;

3) Response rates andtreatment ofnonresponses;

4) Confidentialityprotections; and

5) Frequency ofconducting thesurvey.

Explanation

d) Multiple indicators of ability;

i) The athletic experience andaccomplishments of underrepresentedstudents in playing the sport;

ii) Opinions of coaches, administrators, andathletes at the school regarding whetherinterested students have the potential tosustain a team;

iii) If the team has previously competed at theclub or intramural level, whether thecompetitive experience of the teamindicates that it has the potential to sustainan interscholastic team; and

iv) OCR has indicated that neither a poorcompetitive record, nor the inability ofinterested students to play at the same levelof competition engaged in by the school’sother athletes, is conclusive evidence of lackof ability. For the purposes of assessingability, it is sufficient that interestedstudents and admitted students have thepotential to sustain a team.

and

e) Frequency of conducting assessments;

i) Whether a school assesses interest andability periodically so that the school canidentify in a timely and responsive mannerany developing interests and abilities of theunderrepresented sex;

ii) The degree to which the previousassessment captured the interests andabilities of the school’s students of theunderrepresented sex;

iii) Changes in demographics or studentpopulation at the school; and

iv) Whether there have been complaints fromthe underrepresented sex with regard to alack of athletic opportunities or requests forthe addition of new teams.

Question

Question 4:How do we determineif our school meetspart three – fully and effectivelyaccommodatinginterests and abilitiesof the under -represented sex — ofthe three-part test?(continued)


12

Short Answer Explanation

f) Effective procedures for evaluating requests toadd teams and assessing participation;

i) OCR recommends that schools haveeffective ongoing procedures for collecting,maintaining, and analyzing information onthe interests and abilities of students of theunderrepresented sex, including easilyunderstood policies and procedures forreceiving and responding to requests foradditional teams, and wide disseminationof such policies and procedures to existingand newly admitted students, as well as tocoaches and other employees;

ii) OCR also recommends that schoolsdevelop procedures for, and maintaindocumentation from, routine monitoringof participation of the underrepresented sexin club and intramural sports as part oftheir assessment of student interests andabilities; and

iii) OCR further recommends that schoolsdevelop procedures for, and maintaindocumentation from, evaluations of theparticipation of the underrepresented sex inamateur athletic associations, andcommunity sports leagues that operate inareas from which the school draws itsstudents.

g) Survey may assist in capturing information onstudents’ interests and abilities.

2) Is there sufficient ability to sustain a team in thesport?

a) Minimum number of participants neededfor a particular sport;

b) Opinions of athletic directors and coachesconcerning the abilities required to field ateam; and

c) Size of a team in a particular sport atschools in the governing athletic associationor conference to which the school belongsor in the school’s competitive regions.

.

3) Is there a reasonable expectation of competitionfor the team?

a) OCR considers available competitiveopportunities in the geographic area inwhich the school’s athletes primarilycompete.

Question

Question 4:How do we determineif my school meetspart three – fully and effectivelyaccommodatinginterests and abilitiesof the under -represented sex — ofthe three-part test?(continued)


13

Short Answer

As described above, schoolsmust use multiple indicatorsto determine students’interest.

One method used todetermine unmet interests ina particular sport is therequired biennialdetermination of studentinterest; the student interestsurvey.

No.

Public and private elementaryand secondary schools shallprovide equal opportunity formembers of each sex toparticipate in both theirintramural and interscholasticathletic program.

Explanation

In Minnesota, all public and private elementary andsecondary schools are required to make a biennialdetermination of student demonstrated interest. Themethod used to make the determination must be reportedto MDE, via the athletic program report. Studentdemonstrated interest must be considered in the selection ofathletic activities provided in the athletic program for thepurpose of providing separate teams or sports for membersof the previously excluded sex.

The method used to determine student interest must reach awide audience and be open ended.

The MSHSL has a sample student interest survey on itswebsite at www.mshsl.org.

Under Minnesota law, the number of opportunities forfemales to participate on teams is to be comparable to thenumber of opportunities for males to participate on teamsin each school year in the interscholastic athletic programand comparable, as well as in the intramural athleticprogram. The equipment, supplies, and uniforms for eachsport are to be comparable for both sexes. The locker rooms,practice, and competitive facilities are to be comparable forboth sexes. The medical services are to be comparable forboth sexes. The participation rates for members of bothsexes are to be comparable while recognizing the voluntarynature of student involvement in interscholastic andintramural activities.

Interscholastic athletic program: means all athletic activitiesoffered within a school the purpose of which is to provideopportunities for students to compete with other studentson like teams in other schools within an organizedconference under the auspices of the MSHSL or with otherteams in other schools operating under separatejurisdictions. A complete list of MSHSL sponsored activitiesmay be found at http://www.mshsl.org.

Intramural athletic program: means all non-interscholasticactivities offered within a school, which are not a part of theregular physical education curriculum, designed to providestudents athletic opportunities, experiences, and thedevelopment of competencies in a variety of sports.

Participation rate for a particular sex in the interscholasticathletic program: means the ratio of the number ofparticipants of that sex in the athletic program to thenumber of students of that sex in the student body.

Question

Question 5:How do we measurethe students’ interestsin athletic activities?

Minn. R. 3535.3300

Question 6:In determining if ourschool is providingequal opportunity inathletics, do we reviewinterscholastic andintramural athleticactivities together?

Minn. R. 3535.3300Minn. R. 3535.3000, subp. 3Minn. R. 3535.3000, subp. 4


14

Short Answer

Not necessarily.


Probably no, if …

Not the recommendedanswer.

Explanation

Participation rate for a particular sex in the intramuralathletic program: means the ratio of the number ofparticipations of that sex in the athletic program to thenumber of student of that sex in the student body.

Providing the same number of male and female sport teamsdoes not, in and of itself, guarantee compliance.

The sports offered are representative of the students’interests and abilities (see the first factor that must beconsidered in determining whether equal opportunity inathletic programs is available above).

The sports offered are not representative of the interests andabilities and therefore, there are few participants on theteams.

OCR has repeatedly stated that nothing in Title IX requiresthe cutting or reduction of teams in order to demonstratecompliance with Title IX and that the elimination of teamsis a disfavored practice. Because the elimination of teamsdiminishes opportunities for students who are interested inparticipating in athletics instead of enhancing opportunitiesfor students who have suffered from discrimination, it iscontrary to the spirit of Title IX for the government torequire or encourage a school to eliminate athletic teams.

Question

Question 6:(continued)

Questions

Question 7:If our school providesan equal number ofmale and femalesports, does thatmean we are incompliance withproviding equalopportunity?

OCR Policy Interpretation1979

Question 8:If our schooldetermines we are notin compliance, shouldwe eliminate a sportin order to bring usinto compliance?

OCR Policy Interpretation1979OCR Clarification 2003


15

Short Answer

Historically, no.

Currently determined on acase-by-case basis.


Probably no, if …

How do I make thisassessment anddetermination?

By continuing to assess yourprogram under all the factorslisted above.

Lack of funds does not excusediscrimination.

Explanation

Despite OCR’s longstanding position that dance teams arein the same extracurricular category as cheerleaders, ratherthan athletic programs, OCR has recently provided guidanceto schools to conduct their own assessments and make theirown determinations of whether dance team, as conductedby the school, falls within its athletic program. OCR hasprovided several factors for the schools to review in order tomake this determination.

The primary purpose of dance team is athletic competition;it is a stand-alone activity and administered by the school’sathletic department; coaches are selected/compensated inthe same manner as other current sports; coaches/judges arecertified in a comparable manner as other current sports; aprimary selection criteria for making the team is based onathletic ability; it has a defined season with a practiceschedule and competitive opportunities that are comparableto other sports; it has post-season opportunities; participantsare eligible for varsity letters and similar awards available toother athletes in the interscholastic athletic program; theactivity falls within an organized conference under theauspices of the MSHSL and is governed by a specific set ofpublished rules.

The primary purpose of dance team is the support orpromotion of other athletes; the selection criteria formaking the team is not based on athletic ability; and it doesnot have a defined season, practice schedule or competitiveopportunities that are comparable to other sports.

Contact Sara Winter at MDE, 651-582-8237, and anAssessment and Determination Worksheet will be sent outto you.

Schools should, in advance of proposed budget cuts,develop a mechanism to ensure that equivalent benefits,treatment, services and opportunities are provided for malesand females as programs face elimination or as resources arereallocated.

While determining which sport(s) to eliminate from yourprogram, continue to assess each of the factors outlinedabove that must be considered in determining whetherequal opportunity still exists in your athletic program.

Question

Question 9:May we include danceteam as a sport?

OCR Letter to AitkinOCR Letter to MSHSL

Question 10:Our district is facingsubstantial budgetcuts and must cutsports from ourathletic program; how do we ensure wecontinue to provideequal athleticopportunities?

OCR Letter to Jurupa Unified


16

Short Answer

Maybe.

Each school has aresponsibility under Title IXto ensure that males’ andfemales’ programs areprovided with equivalentbenefits, treatment, services oropportunities regardless oftheir source.


Probably no, if …

Yes.

Explanation

When determining equivalency, benefits, services oropportunities attained through the use of private funds,such funds are considered in combination with all benefits,services or opportunities.

Private fundraising, including student-initiated fundraising,has been, and continues to be, permissible under Title IX.This does not mean that teams must “share” proceeds fromfundraising activities. It does, however, place a responsibilityon the school to insure that benefits, services, treatment andopportunities overall, regardless of funding sources, areequivalent for male and female athletes.

In the experience of OCR, sponsors, as a whole, are moreinterested and willing to assist male teams than femaleteams. Further, male-oriented “booster” activities generatemore public interest than female-oriented activities. If allbenefits are not considered in examining athletics, thepurpose of Title IX requirements could be routinelyundermined by the provision of unequal benefits throughprivate financial assistance.

The school has a mechanism in place to ensure thatequivalent benefits, treatment, services and opportunitiesare provided to males and females despite large portions offunding being raised specifically for one team.

The school has no mechanism in place to ensureequivalency and the money is being given solely to thefootball or wrestling teams.

When two teams in the same sport are in fact separated orsubstantially separated according to sex, the two teams shallbe provided with substantially equal budgets perparticipant, exclusive of gate receipts and other revenuesgenerated by that sport, and in all other respects shall betreated in a substantially equal manner.

Question

Question 11:May our school accept private funds,including student-initiated fundraisingor booster clubmoney?

OCR Letter to Jurupa Unified

Question 12:Our school has twoteams in the samesport that areseparated accordingto sex, i.e., basketball;must the two teamshave substantiallyequal budgets perparticipant?

Minn.Stat. § 121A.04, Subd. 3(c)


17

Short Answer

Probably not.

Some aspects of athleticprograms may not beequivalent for males andfemales because of uniqueaspects of particular sports orathletic activities.

No. However, the overalleffect of any differences mustbe negligible.

OCR will look for overall“equivalence” which isinterpreted as “equal or equalin effect.”

Yes.

Explanation

Generally, these differences will be the result of factors thatare inherent to the basic operation of specific sports. Suchfactors may include rules of play, nature/replacement ofequipment, rates of injury resulting from participation,nature of facilities required for competition, and themaintenance/upkeep requirements of those facilities.

If sport-specific needs are met equivalently in both males’and females’ programs, differences in particular programcomponents will be found to be justifiable.

OCR recognizes and permits differences in locker roomsthat are the result of factors “inherent to the basic operationof specific sports.” Such factors may include the nature ofequipment, nature of facilities required for competition, andthe maintenance/upkeep of those facilities. If sport-specificneeds are met equivalently in both male and femaleprograms, these differences may be found to be justifiable.

For example, because of the nature of football equipment, itmay be justifiable for football players to have larger lockersand for the football team to have more extra lockers (e.g., tostore large football equipment). Generally, these differencesare acceptable provided the locker rooms and facilities meetthe sport-specific needs of other males’ teams and females’teams equivalently.

OCR reports the following scenario: A brand-new highschool included a state-of-the-art baseball facility for males,including dugouts, generous seating, lockers, a storage roomand PA system. In additional, the field was large enough forboth the junior and senior players to practice and play.

In contrast, the girls were told there was no softball field forthem: instead, the school had made arrangements with alocal church to share their field. This field had no seating,locker room, dugout, storage room or PA system, and thefield itself was not comparable in quality or size to the oneprovided to males.

After OCR’s intervention, the school district not only built acomparable softball facility for females but it also reviewedfacilities for females at other schools to determine anyneeded upgrades.

Question

Question 13:This year our schoolhad to replace majorequipment for a malesport, i.e., wrestlingmats, and that madeour expenditures seemdisproportionate; does that mean ourschool is now out ofcompliance?

OCR Policy Interpretation1979

Question 14:Must our school haveidentical female andmale locker rooms inorder to be incompliance?

OCR Policy Interpretation1979OCR Policy Statement 1991

Questions

Question 15:Must our school’sbaseball fields andsoftball fields beequivalent?

OCR Success Stories 2005


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Short Answer

Probably not.

Schools are not required tooffer particular sports or thesame sports for each sex.However, schools mustaccommodate to the samedegree the athletic interestsand abilities of each sex in theselection of sports.

Schools may sponsor separateteams for males and femaleswhere selection is based oncompetitive skill or when theactivity is a contact sport.

Explanation

In the selection of sports, schools are not required tointegrate their teams nor to provide exactly the same choiceof sports to males and females. However, where the schoolsponsors a team in a particular sport for members of onesex, it may be required either to permit the excluded sex totry out for the team or to sponsor a separate team for thepreviously excluded sex.

Contact sports: if a school sponsors a team for members ofone sex in a contact sport, it must do so for members of theother sex under the following circumstances:

1) The opportunities for members of the excluded sexhave historically been limited; and

2) There is sufficient interest and ability among themembers of the excluded sex to sustain a viableteam and a reasonable expectation of competitionfor that team.

Contact sports include boxing, wrestling, rugby, ice hockey,football, basketball and other sports in which the purposeor major activity involves bodily contact.

When an equal opportunity to participate in the elementaryor secondary school level athletic program of an educationalinstitution or public service is not provided to members of asex whose overall athletic opportunities have previouslybeen limited, that educational institution or public serviceshall, where there is demonstrated interest, provide separateteams for members of the excluded sex in sports which itdetermines will provide members of that excluded sex withan equal opportunity to participate in its athletic programand which will attempt to accommodate their demonstratedinterests.

Any public or private elementary or secondary school mayprovide in the same sport two teams which are separatedaccording to sex when overall athletic opportunities for onesex have previously been limited, but the team for the othersex may only be substantially separated by sex.

When an equal opportunity to participate is not provided tomembers of a sex whose overall athletic opportunities toparticipate have previously been limited, the school, wherethere is a demonstrated interest, shall provide separateteams in sports which it determines will provide membersof the excluded sex with an equal opportunity and whichwill attempt to accommodate their demonstrated interest.

Question

Question 16:Must our schoolprovide the samesports for both malesand females?

OCR Policy Interpretation1979OCR Policy Statement 1991

Question 17:When is it permissibleto provide separatemale and femaleteams?

OCR Policy Interpretation1979OCR Policy Statement 1991Minn. Stat. § 121A.04,Subd. 4


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Short Answer

Where a school sponsors ateam in a particular non-contact sport formembers of one sex, it mustallow athletes of the other sexto try-out for the team, ifhistorically, there have beenlimited athletic opportunitiesfor members of the other sex.

Explanation

Non-contact sports: if a school sponsors a team formembers of one sex in a non-contact sport, it must do sofor members of the other sex under the followingcircumstances:

1) The opportunities for members of the excluded sexhave historically been limited;

2) There is sufficient interest and ability among themembers of the excluded sex to sustain a viableteam and a reasonable expectation of competitionfor that team; and

3) Members of the excluded sex do not possesssufficient skill to be selected for a single integratedteam, or to compete actively on such a team ifselected.

If two teams are provided in the same sport, one of theseteams may be restricted to members of a sex whose overallathletic opportunities have previously been limited, andmembers of either sex shall be permitted to try out for theother team.

When overall athletic opportunities for one sex havepreviously been limited, members of that sex shall bepermitted to try out and, if successful, to participate on anyteam in any sport. This part does not prohibit anyelementary or secondary school from making participationon a team in a sport dependent upon a demonstrated levelof skill and ability. When an educational institution hasestablished a team exclusively for members of the sex whoseoverall athletic opportunities have previously been limited,members of the other sex may not try out for or participateon that team.

Question

Question 18:When does our schoolhave to allow femalesto try-out for maleteams and vice-versa?

OCR Policy Interpretation1979OCR Policy Statement 1991Minn. Stat. § 121A.04,Subd. 3(d)Minn. R. 3525.3200, subp. 4


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Short Answer

A report you are required tosubmit to MDE on or beforeOctober 15 of each yearcontaining information aboutboth intramural andinterscholastic athletics yourschool provides.

Explanation

MDE is to assure schools/school districts provide an equalopportunity for members of both sexes to participate inathletic programs.

Annually, on or before October 15, all public and privateelementary and secondary schools that offer interscholasticand intramural sports must submit, to MDE, an elementaryand secondary athletic program report containinginformation about both interscholastic and intramuralathletics provided.

The report shall contain by building:

1. Number of sports offered for each sex;

2. The season each sport is offered for each sex;

3. Number of weeks each sport is offered;

4. Number of teams in each sport;

5. Number of coaches assigned each sport;

6. Number of students by sex participating in eachsport;

7. Dollar expenditure per sport;

8. Total unduplicated count of student participation inthe interscholastic program by sex; and

9. Total unduplicated count of student participation inthe intramural program by sex.

The report is submitted to MDE electronically, via theinternet, at https://education.state.mn.us/Athletics. Uponreceipt of a school’s athletic program report, MDE mustevaluate the data contained in the report and forwardreports requiring additional attention to the commissionerof human rights. MDE may reduce or withhold theschool’s/school district’s state aid for any school year fornoncompliance with state laws prohibiting discriminationbecause of race, color, creed, religion, national origin, sex,age, marital status, status with regard to public assistance ordisability.

Question

Question 19:What is the athleticprogram report?

Minn. R. 3525.3600Minn. R. 3525.3700Minn. Stat. § 127A.42


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Short Answer

Co-ed sports are generallylimited to adapted sports orintramural sports.

Report the information as itpertains to the studentsparticipating from yourschool only.

Yes.

You are asked to submitparticipation numbers, bysport and by gender, toMSHSL on or before June 1 of each year.

Explanation

Co-ed: means a team that is open to both sexes. Co-edteams are generally limited to adapted athletic programs orintramural athletic programs.

If both your female team and male team share a coach, forexample in golf, that does not make your sport a co-ed sportand each team must be listed out separately in your athleticprogram report.

Submit the information on the athletic program report as itpertains only to the students/staff in your school building.

For example, if your school building is not providing acoach, put 0 for the number of coaches.

MSHSL gathers participation numbers by sport and bygender and forwards them to the National Federation ofState High School Associations to compile nation-wideparticipation numbers.

Athletic administrators are asked to access the administrativeside of the MSHSL’s web site at the conclusion of the falland winter activities and on May 1 each spring. The formused to collect participation data is entitled ActivityParticipation Survey, and each school is required to providethe data not later than June 1 of each school year.

Question

Question 20:For the athleticprogram reportrequired to besubmitted to MDE,what sports areconsidered co-edsports?

Questions

Question 21:Our school is in acooperative for one ormore sports, how dowe report thisinformation on theathletic programreport required to besubmitted to MDE?

Question 22:Do we have to reportathletic numbers tothe MSHSL?


Resources

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ResourcesThe United States Department of Education, Office for Civil Rights (OCR) enforcesthe Federal Title IX law. The OCR office for Minnesota is located at:

Chicago Office Office for Civil Rights Customer Service Hotline:U.S. Department of Education 1-800-421-3481500 W. Madison Street, Suite 1475 Telephone: 312-730-1560Chicago, IL 60661-4544 FAX: 312-730-1576

Email: [email protected]: www.ed.gov/ocr

The Minnesota Department of Education (MDE) reviews school compliance withstate and federal anti-discrimination laws. MDE is located at:

Minnesota Department of Education Division of Compliance and Monitoring Telephone: 651-582-8237Attention: Sara Winter FAX: 651-582-87251500 Highway 36 WestRoseville, MN 55113

Email: [email protected]: www.education.state.mn.us

The Minnesota Department of Human Rights (MDHR) enforces state anti-discrimination laws and investigates all charges alleging sex discrimination in athletic programs in schools. MDHR is located at:

Minnesota Department of Human Rights Freeman Building Telephone: 651-539-1100625 Robert Street North TTY: 651-296-1283Saint Paul, MN 55155 Toll Free: 1-800-657-3704

Website: www.humanrights.state.mn.us

The Minnesota State High School League (MSHSL) is a 501-c(3) nonprofitcorporation that is a voluntary association of high schools. The MSHSL controlscontests by and between Minnesota High Schools, and the eligibility rules for suchcompetitions are developed by the member schools themselves. The MSHSL Board ofDirectors administers post-season tournaments and develops policies which directMSHSL initiatives. MSHSL is located at:

Minnesota State High School League Attention: Dave Stead Telephone: 763-560-22622100 Freeway Blvd. FAX: 763-569-0499Brooklyn Center, MN 55430-1735

Email: [email protected]: www.mshsl.org


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ResourcesLegal Resources andDocuments Cited

20 U.S.C. §§ 1681 et seq.

34 C.F.R. § 106.41. Athletics.

Minn. Stat. § 121A.04. Athletic Programs: Sex Discrimination.

Minn. Stat. § 127A.42. Reduction of Aid for Violation of Law.

Minn. Stat. § 363A.23. Exemption Based on Education.

Minn. R. 3535.3000. Definitions.

Minn. R. 3535.3200. Separation by Teams.

Minn. R. 3535.3300. Biennial Determination of Student Interest.

Minn. R. 3535.3400. Creating Equal Opportunity for Two Teams.

Minn. R. 3535.3600. Compliance Reports and Submission of Data.

Minn. R. 3535.3700. Duties of the Commissioner of Education.

Dear Colleague Letter - Intercollegiate Athletics Policy Clarification: The Three-Part Test– Part Three (April 20, 2010) (OCR Clarification 2010).

Questions and Answers about Dear Colleague Letter – Intercollegiate Athletics PolicyClarification: The Three – Part Test – Part Three (April 20, 2010) (OCR Q & A 2010).

Athletic Equity Success Stories (March 9, 2005) (OCR Success Stories 2005).

OCR Letter to Aitkin (March 18, 2004) (regarding whether dance team is a “sport” forpurposes of Title IX) (OCR Letter to Aitkin).

Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IXCompliance (July 11, 2003) (OCR Clarification 2003).

OCR Letter to Minnesota State High School League (April 11, 2000) (regardingdefinition of sport) (OCR Letter to MSHSL).

Check it Out: Is the Playing Field Level for Women and Girls at Your School? An AthleticsEquity Checklist for Students, Athletes, Coaches, Parents, Administrators, and Advocates,National Women’s Law Center (2000) (National Women’s Law Center Checklist2000).

Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16,1996) (OCR Clarification 1996).

OCR Letter to Jurupa Unified School District (Feb. 7, 1995) (regarding privatefinancial assistance and Title IX) (OCR Letter to Jurupa Unified).

Equal Opportunity in Intercollegiate Athletics: Requirements Under Title IX of theEducation Amendments of 1972 (OCR Policy Statement 1991).

Intercollegiate Athletics Policy Interpretation (Dec. 11, 1979) (OCR PolicyInterpretation 1979).


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