In recognition of the 50th anniversary of its enactment, interested parties in Delaware and throughout the country are investigating whether athletic programs are complying with Title IX.

by Katie Prevost & Maria Fernanda Almanza-Morales

Title IX was passed 50 years ago, in part because Dr. Donnis Thompson (a Black female athletic pioneer) and Patsy Mink (the first Asian-American U.S. Congresswoman) called on Congress to end the discrimination female student-athletes were facing at the University of Hawaii, as documented in the aptly titled film Rise of the Wahine (the Hawaiian word for women and the name for the University of Hawaii female athletic program).[1]  Prior to 1972, 3.6 million boys participated in high school sports, but only around 300,000 girls participated.[2] Fortunately, since the passage of Title IX, participation by girls in high school sports has increased by over three million.[3]

In recognition of the 50th anniversary of the enactment of Title IX, interested parties in Delaware[4] and throughout the country[5] are investigating whether athletic programs are complying with the law’s requirement that, No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance . . . .”[6]

To comply with Title IX, Delaware schools that receive Federal funding must provide female athletic programs equal opportunity regarding: publicity, scheduling of games and practice times, equipment and supplies, coaching, locker rooms, practice and competitive facilities, access to tutoring, travel and daily per diem allowances, recruitment, medical and training facilities and services, housing and dining facilities and services, and support services.[7]

The ACLU of Delaware, in conjunction with the University of Delaware Department of Women & Gender Studies, recently examined whether high school girls’ athletic programs in the State of Delaware are receiving equal opportunities in compliance with Title IX. Current and former high school student-athletes were interviewed and had the option to fill out a confidential questionnaire about their experiences in high school regarding publicity, scheduling of game times, coverage of games, and access to college scouts. The results suggest that boys’ athletic programs continue to receive more benefits and opportunities than girls’ athletic programs.

The results suggest that boys’ athletic programs continue to receive more benefits and opportunities than girls’ athletic programs.

For example, the research identified a boys’ high school football program which receives a disproportionately high amount of publicity. One football player revealed that he routinely enjoyed the privileges of being recognized at school rallies and having packed crowds during prime-time games with the band, cheer and/or dance teams performing. He also admitted having easier access to college scholarships because the majority of his high school games were recorded and his high school coaches helped him make highlight reels and connect him to college scouts. The findings were similar for boys’ basketball teams. Our research found high school boys’ games in general are more frequently advertised on school websites, posters, YouTube, National Federation of High Schools Network, daily announcements, and Instagram.

Soccer players reported that girls’ games were often scheduled during school hours or immediately after school, making it difficult for working parents or any fans to attend. A female soccer player, when interviewed, disclosed that her games were not routinely announced on the daily announcements, were not regularly recorded, and she had to make her own highlight reel to try and get noticed by colleges. She revealed that the cheerleading team hardly ever performed at any of her games, even at the rarely scheduled prime-time games, nor when they qualified for tournament finals. Worse, the female student-athletes interviewed repeatedly stated they did not know where to go for help remedying these inequities. This must change.

Fortunately, the Delaware Department of Education (DDOE) and the Delaware Office of Women’s Advancement and Advocacy (OWAA) have spent the last several months developing a plan to strengthen Title IX in the State of Delaware.[8] The plan focuses on:

  1. “Increase public awareness with the inclusion of Title IX information and resources on the website of the Delaware Department of Education with encouragement for schools and districts to do the same. Easily accessible information allows for students and families to know their rights under Title IX and keeps the process for remedying issues clear. To maintain this clarity, the DDOE will add information related to Title IX, including the names and contact info for each [charter school and] school district’s Title IX Coordinator, to the DDOE website. DDOE also will make a recommendation to school districts that they include Title IX information on their websites in a place easily accessible by students and parents.
  2. Increase Title IX training. A state effort to provide timely, regular, Title IX training for all relevant staff can help schools, athletic directors, administrators, and others, such as the DIAA [Delaware Interscholastic Athletic Association which is part of the DDOE] with the necessary guidance to comply with Title IX and promote gender equity.
  3. Increase data collection and reporting to provide transparency on Title IX compliance. The Delaware Department of Education, in conjunction with the Delaware Office of Women’s Advancement and Advocacy, will collaborate with Delaware public school districts and charters to consider a survey related to Title IX compliance. Such a survey would be completed by every public school providing middle and/or interscholastic athletic opportunities in Delaware.”[9]

Additionally, in February 2023, the U.S Department of Education Office for Civil Rights (“OCR”) published a Resource for Students, Parents, Coaches, Athletic Directors, and School Communities which explains the rights that K-12 students have to participate in interscholastic, intramural, or club athletic programs free from discrimination based on sex and to help these parties evaluate whether their school’s athletic program is providing equal opportunity consistent with Title IX.[10] OCR explains, for example, that schools must provide equivalent coverage for boys’ and girls’ teams and athletes on its website, social media sites, and any other publicity.[11] The OCR also states that cheerleaders, pep bands, and drill teams must be provided equivalently for girls’ and boys’ teams. [12]  Additionally, OCR guidance makes clear that boys’ and girls’ teams must both have a reasonable opportunity to compete before an audience – including the balanced scheduling of games on Friday nights versus weekend mornings.[13]

The edict is clear: state officials, administrators, athletic directors, and the entire school community must rethink the norms of sports in Delaware. No longer should “Friday Night Lights” be synonymous with boys’ football games. There is no reason why a high school girls’ game in any sport cannot be publicized and held during prime time with the band, cheerleaders and dance squad all performing. Title IX demands as much. Pinpointing the crux of the matter, one legal scholar stated, “Opponents of such an interpretation may argue that men’s sports have a larger following, with higher rates of viewership, and thus generate more revenue. [In fact, this is the exact argument that was made against the Wahine women players when they demanded equality 50 years ago.[14] ] But the preference for men’s sports derives from the history of inequality in women’s and men’s athletics.”[15]

The edict is clear: state officials, administrators, athletic directors, and the entire school community must rethink the norms of sports in Delaware.

Until such time that all female athletic programs in Delaware receive equal treatment under Title IX; students, parents, guardians, employees, or others in the school community may file a complaint through their school’s grievance procedure as outlined by their school district’s Title IX Coordinator.[16]  Alternatively or in addition to, any person may file a complaint regarding a suspected violation of Title IX with the Office of Civil Rights.[17]  You may also contact the ACLU of Delaware if you feel your rights have been violated under Title IX.   No one should sit quietly and allow 50 more years to go by before these wrongs get righted. The ACLU of Delaware will continue to fight to end discrimination on the basis of sex and to ensure the State of Delaware’s plan to strengthen its female athletic programs happens without delay.

[3] Id.

[5] Rosa Leon, Title IX Reinterpreted: Obligation of Publicity, 10:1 Miss. Sports L. Rev. 2021, at 261.

[9]  Id.

[11] Id. at 5.

[12] Id.

[13] Id. at 3.

[14] See Supra, footnote 1.

[15] See Supra, footnote 5 at 264.

[16] See Supra, footnote 10, at 1-2, and 9.