Feds issue guidance on athletic activities counted for Title IX compliance

The U.S. Department of Education’s Office for Civil Rights (OCR) has issued guidance regarding intercollegiate or interscholastic athletic activities that can be counted for the purpose of Title IX compliance. The guidance, in the form of a September 17, 2008 “Dear Colleague Letter” to state educational agencies, local educational agencies, and postsecondary institutions, focuses on the method by which OCR determines whether a particular activity is a “sport.” OCR notes that it has no specific definition of the term. “Instead, OCR considers several factors related to an activity’s structure, administration, team preparation and competition, which are identified below, when determining whether an activity is a sport that can be counted as part of an institution’s intercollegiate or interscholastic athletics program for the purpose of determining compliance with 34 C.F.R. § 106.41(c).” 

Many institutions are members of athletic organizations, such as state athletic associations, whose requirements which address the factors identified by OCR. The letters states: “When the organizational requirements satisfy these factors and compliance with the requirements is not discretionary, OCR will presume that such an institution’s established sports can be counted under Title IX.” This presumption, however, “can be rebutted by evidence demonstrating that the institution is not offering the activity in a manner that satisfies the factors below.” Where the presumption either does not apply or has been rebutted, “OCR will evaluate an institution’s activity on a case-by-case basis” and will consider the several factors.

First, OCR will consider whether the activity is structured and administered in a manner consistent with established interscholastic varsity sports in the institution’s athletics program, including whether the operating budget, support services (including academic, sports medicine and strength and conditioning support), and coaching staff are administered by the athletics department or another entity and are provided in a manner consistent with established varsity sports and whether the participants in the activity are eligible to receive athletic scholarships and athletic awards. Second, OCR will examine whether the team prepares for and engages in competition in a manner consistent with established varsity sports in the institution’s interscholastic athletics program, including whether the practice opportunities (e.g., number, length, and quality) are available in a manner consistent with established varsity sports and whether the regular season competitive opportunities differ quantitatively and/or qualitatively from established varsity sports. The letter then goes into more detail as to its considerations when looking into the competitive opportunities.