February 7, 1995
Karen Gilyard, Esq.
Atkinson, Andelson, Loya, Ruud and Romo
13304 East Alondra Boulevard
Cerritos, California 90701
(In reply, please refer to Docket Number 09-91-1222.)
Dear Ms. Gilyard:
This letter is to notify you of the final determination of the Office for Civil Rights (OCR) regarding the resolution of a complaint filed against the Jurupa Unified School District by Ms.'s [redacted], hereinafter the complainants, alleging discrimination on the basis of sex with regard to their employment conditions, the provision of educational opportunities for girls in physical education, and the provision of equivalent services, benefits and opportunities in the interscholastic athletics programs at Rubidoux High School (RHS). Additionally the complainants alleged that the recipient harassed and retaliated against them for asserting their protected rights and those of their students.
In a partial letter of finding issued on February 2, 1994, OCR found violations of the regulations in the three areas of employment, physical education and athletics. Included was a finding that girl and boy athletes were not receiving equivalent benefits and services under 34 C.F.R. 106.41(c). No violation was found with respect to the retaliation allegations. Two areas of violation were resolved through a voluntary resolution agreement.
This letter will address the remaining unresolved issue: whether the obligation of the District to assure that services, benefits and opportunities in its athletic program are provided on an equivalent basis to both boys and girl applies to those services, benefits and opportunities that are provided through the use of "outside" financial assistance such as donations, fund-raising by coaches, and booster clubs.
OCR has the responsibility for enforcing Title IX of the Education Amendments of 1972 and its implementing regulation at 34 C.F.R. Part 106. Title IX prohibits discrimination on the basis of sex in programs or activities receiving Federal financial assistance from the Department of Education. Since the District receives such assistance from the Department, it is subject to the statute and the regulations, and OCR has jurisdiction over this complaint.
Title IX requires that girl students be provided with aids, benefits and services equivalent to those provided to boy students, and that girls not be limited on the basis of sex in the enjoyment of any right, privilege, advantage or opportunity provided under any educational program or activity operated by the District. Athletics programs are specifically addressed at 34 C.F.R. 106.41 of the Title IX regulation which provides that no person shall, on the basis of sex, be denied benefits or be treated differently from another person in any interscholastic athletics program offered by a recipient. As a means of assessing compliance, OCR follows the Policy interpretations issued December 11, 1979, 44 Fed. Reg. 71413 et seq. (1979).
In the February 2, 1994 letter of finding, OCR described the evidence which led OCR to conclude that the District itself was not providing equivalent benefits (including equipment and supplies) to girl athletes at RHS. During the investigation OCR learned that, in addition to District support, individual interscholastic teams at RHS receive money and other financial benefits from booster clubs and other private sources. Information from the District regarding the balances in team trust accounts showed that, during 1991-92 and 1992-93 respectively, boys' teams received at least $6850 and $9311, and girls' teams received at least $5150 and $5520. While, in general, it is known that the funds are used for such things as equipment and meals for athletes, the District was unable to document how these funds were spent. The figures suggest a disparity favoring boys in the provision of benefits and services.
Furthermore, OCR received anecdotal evidence of differences in benefits through outside sources. OCR learned that, during one recent year, boy basketball players received a substantial discount on expensive basketball shoes through an arrangement their coach had with a local supplier. Girl basketball players did not receive any discount on the purchase of their shoes. Girls paid $54.00 for shoes while boys paid only $25.00. Another disparity described to OCR that favors boy athletes is that, before each football game, the players are provided with a meal paid for from booster club funds. To OCR's knowledge, no girls team members are provided such a benefit.
Disparities favoring boys such as those described above do not, in and of themselves, constitute a violation of Title IX. As with OCR's determination on disparities in District-provided benefits, if the District had been able to provide evidence of an off-setting benefit provided to girls and not to boys (from any funding source), there would be no basis for a violation of Title IX. However, the District stated that it does not keep records on the expenditure of outside financial support and was not able to determine whether benefits to boy athletes from such sources are matched by some equivalent benefit to girls.
Since the District could not provide OCR with documented information about benefits to athletes from private sources, it was not possible to factor such benefits into the overall OCR determination at the time the findings were issued. OCR asked the District to adopt a prospective policy stating that the District would assure that any benefits and services provided to one gender from outside sources did not result in unequal benefits or services to the other gender. The District refused to adopt such a policy.
The District has taken the position that it has no obligation or authority to monitor athletic income or expenditures from private sources, to provide information to OCR about such funds, or to assure that comparable benefits and services are provided to athletes of both sexes, taking into account all sources. The District argues that it is not responsible for private activities and, further, that District oversight in this area would inhibit private fundraising initiatives.
Analysis and Conclusion
The District's position as to its obligations is not acceptable under Title IX. The District has a responsibility under Title IX to ensure that boys' and girls' programs are provided with equivalent benefits, treatment, services or opportunities regardless of their source. When determining equivalency, benefits, services or opportunities attained through the use of private funds, such funds are considered in combination with all benefits, services or opportunities. This interpretation is consistent with the OCR "Title IX Athletics Investigator's Manual," pertinent Federal court decisions, and the legislative history of Title IX and the Civil Rights Restoration Act of 1987.
The basic concern of OCR is the following: The private funds that are used to support District athletics programs, although neutral in principle, are likely to be subject to the same historical patterns that Title IX was enacted to address. In the experience of OCR, sponsors, as a whole, are more interested and willing to assist boys' teams than girls' teams and male-oriented "booster" activities generate more public interest than girl's activities. If all benefits are not considered in examining interscholastic athletics, the purpose and effect of Title IX requirements could be routinely undermined by the provision of unequal benefits through private financial assistance.
While OCR acknowledges that this policy may be seen as discouraging private initiatives (which are unquestionably valuable to recipients and students), we cannot diminish the protection of Title IX by exempting benefits, treatment, services or opportunities provided to athletes through the use of private funds. Private fundraising, including student-initiated fundraising, has been, and continues to be, permissible under Title IX. It should also be noted that this does not mean that teams must "share" proceeds from fundraising activities. It does, however, place a responsibility on the District to insure that benefits, services, treatment and opportunities overall, regardless of funding sources, are equivalent for male and female athletes.
As explained above, the difference favoring boys in the amount of funds available from outside sources at RHS during the two years examined is not, in and of itself, a violation of Title IX. Similarly, the situations involving athletic shoes and meals are not by themselves violations of Title IX. It is possible that there were off-setting benefits provided to girls. However, without additional information available from the District, OCR cannot establish whether or not benefits were equivalent overall. While OCR has the authority to ask the District to keep the necessary information in the future, the failure to maintain the information in the past is also not in itself a violation. Since neither OCR nor the District has the necessary data, OCR concludes that there is insufficient evidence to show that, in addition to the areas outlined in the February 4, 1994, letter of finding, outside assistance to athletics teams at RHS was a cause of unequal benefits and services to girl athletes. OCR is therefore closing this case of the date of this letter.
However, OCR emphasizes that, in order for the District to be in continuing compliance with 34 C.F.R. ???106.41, it must assure that services, benefits and opportunities in its athletic program are provided on an equivalent basis to both boys and girls, INCLUDING those services, benefits and opportunities that are provided through the use of "outside" financial assistance such as donations, fund-raising by coaches, and booster clubs.
This letter addresses only the issues discussed above and should not be interpreted to address the District's compliance with any other laws or regulations enforced by OCR.
Under the Freedom of Information Act, it may be necessary to release this document and related records on request. In the event that OCR receives such a request, it will seek to protect, to the extent provided by law, personal information which if released, could reasonably be expected to constitute an unwarranted invasion of privacy.
That you for your cooperation in this matter. Should you have questions regarding this letter or need other assistance, please contact Patricia Shelton at (415) 556-7091.
John E. Palomino, Regional Civil Rights Director
CC: Dr. Benita Roberts, Superintendent