Sports Programming and Scheduling

Provisions of Title IX

According to Title IX, “No person in the United States shall, on the basis of sex, be denied the benefits of, or be subjected to discrimination under, any education program or activity receiving Federal financial assistance” (20 U.S.C. § 1681). In 1979, the U.S. Department of Health, Education, and Welfare, now the U.S. Department of Education, promulgated a policy interpretation of Title IX that led to legal limitations on sports scheduling under 34 C.F.R. § 106.41. Section 106.41 of this regulation specifically concentrates on the equitable participatory policies of athletics programs. Further, the regulation directs athletic administrators to consider the equal athletic opportunities in 10 areas, including scheduling of games and practice time (34 C.F.R. § 106.41 (c)(3)).

In order to comply with Title IX, athletic programming must meet one prong of the Title IX tripartite test. Under the first prong, institutional officials must ensure that each gender's representation in varsity athletics is substantially proportionate to its representation in the student body. Pursuant to the second prong, if institutional officials have not achieved substantial proportionality in programming, they may demonstrate that there is a continuing history of expanding opportunities for the underrepresented gender. The third prong stipulates that institutional officials may demonstrate that they are currently accommodating all interests and abilities of the underrepresented gender.

Equitable scheduling typically implicates the third prong of the tripartite test, which requires institutional officials to show that they have taken steps to ensure that the interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated. The Office of Civil Rights, which investigates and enforces Title IX compliance, noted that the third prong was used in more than two-thirds of the enforcement cases brought before its enforcement staff. Institutional policies are paramount in demonstrating that an institution has met the needs of all student-athletes and has complied with federal statutes.

When evaluating scheduling policies, athletic administrators must affirmatively address two key aspects of scheduling. The first question inquires whether scheduling policies are discriminatory in their language or effect. In other words, even though a schedule may appear to be fair, its effect may not be fair if it overlaps with the season of another sport in which student-athletes may wish to participate. The second question considers whether substantial and unjustified disparities exist between males and females in benefits, services, or opportunities, such as opportunities to use practice facilities and access to training staffs derived from scheduling. If the answers to these questions reveal discriminatory actions, then litigation could ensue. In order to better address these questions, athletic scheduling policies and procedures must comply with Title IX statutory and administrative law, which depends on five principles of equitable scheduling of playing and practice seasons. These principles include the number of competitive events that occur per sport, the number and length of practice opportunities, the time of day competitive events are scheduled, the time of day when practice opportunities are scheduled, and the opportunities to engage in preseason and postseason competition.

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