Complying with Title IX

By Michael McKeon

In 2000, three years into a federal class action suit that had been brought against a Connecticut school district under Title IX of the Education Amendments of 1972, the plaintiffs’ attorney was conducting a deposition of the school district’s athletic director, who was under oath.

The plaintiffs’ attorney methodically took the athletic director through dozens of purchase orders and budget documents, asking about the district’s provision of equipment to comparable male and female teams. It was late in the day, and eyes were beginning to glaze in the small, windowless conference room when the plaintiffs’ attorney asked whether any female teams had been relegated hand-me-down uniforms from its male counterpart. Without missing a beat, the athletic director answered: “Yes, the girls’ swim team.” There were a few seconds of silence, and then the room erupted, even the plaintiffs’ attorneys joining in the laughter.

In addition to bringing a rare moment of levity in a lawsuit that would grind on for an additional four years until it was finally resolved in the school district’s favor, this exchange underscored an important and often overlooked element of Title IX litigation, that athletic equity is not simply about the number of sports teams available to either gender.

To the contrary, although litigation involving equitable athletic opportunity typically generates the most media attention, Title IX addresses not only whether the allegedly underrepresented gender was denied equitable athletic opportunities, but also the requirement that athletes of both genders be provided with equitable athletic benefits.

It’s hard to argue with the underlying impetus for mandating equitable athletic benefits, and most school districts have embraced it not only because they are legally required to do so but also because it is appropriate and fair. Nonetheless, 40 years after Title IX’s enactment, many of these same districts might find themselves hard-pressed to withstand scrutiny of how their athletic benefits are being allocated within their school systems. This is due to the extraordinarily broad scope of this prong of Title IX enforcement and litigation, a reality that has not been lost on plaintiffs’ attorneys.

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