In Franklin County, the girls’ basketball season began two weeks before the boys’ season. During that time, the girls played games on Friday and Saturday evenings, “primetime,” attracting large crowds and enjoying the support of the band, cheerleaders, and the dance team. Once the boys’ season started, however, the girls’ games were disproportionately relegated to weeknights. On weeknights, fewer fans attended and players struggled to balance the demands of homework with the time and energy needed for school-night games; the unfavorable schedule also fostered feelings of inferiority. For the seasons between 2007 and 2010, 95% of the boys’ games were played in primetime while only about half of the girls’ games were played in primetime.

The district court granted summary judgment to the district, finding that the treatment of the girls’ basketball players did not result in a disparity so substantial that it denied them equal athletic opportunity. The Seventh Circuit disagreed.

The Title IX regulations provide that “No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics.” The regulations enumerate ten factors to determine whether there is equal athletic opportunity.

The first factor considers “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” This factor is related to effective accommodation claims. Districts can demonstrate effective accommodation through any one of three means: the numbers of males and females participating in athletics is substantially proportionate to their overall enrollment; members of one sex are underrepresented in athletics but the district can show a continuing practice of program expansion; or the present program accommodates the interests and abilities of the underrepresented sex.

This case, however, was an equal treatment claim. Equal treatment claims deal with equality of equipment and supplies; scheduling of games and practice time; travel and per diem allowances; opportunity for coaching and academic tutoring; assignment and compensation of coaches and tutors; locker rooms and other facilities; medical and training services; housing and dining services; and publicity. Additional factors include recruitment of student athletes and provision of support services.

When considering whether a disparity in one of these areas denies one sex equal athletic opportunity, the court views the athletic program as a whole, rather than conducting a sport-specific comparison. Thus, a disadvantage in one sport could be offset by an advantage in another. In this case, however, the district did not offer any indication that the disadvantage in scheduling girls’ basketball games was counterbalanced by an advantage for girls in another area.

The court was also guided by a 1997 letter from the Department of Education, Office of Civil Rights to the Indiana High School Athletics Association addressing the unequal scheduling of girls’ and boys’ basketball games at primetimes. The letter noted a substantial disparity at that time and warned that schools could be found to be out of compliance if they reserved Friday nights for boys’ games without a nondiscriminatory justification. Despite receiving the letter 14 years ago, Franklin County continued to have a substantial disparity between boys’ and girls’ games played in primetime. The court found that this disparity “may have the effect of discouraging girls from participating in sports in contravention of the purposes of Title IX.”

The district court had also granted summary judgment to the district on the players’ equal protection claims, finding the district was an arm of the state and therefore immune from Section 1983 liability. School districts are not typically considered part of the state, but a recent change in Indiana legislation substantially increased the proportion of funding districts receive from the state and the amount of oversight the state has over the districts. The Seventh Circuit, however, found that the change did not erase the distinction between the state and the school district; the school district remained an independent political unit and would ultimately be responsible for paying any judgment. Therefore the district was subject to suit under Section 1983 for alleged equal protection violations.

In light of this decision, districts should consider not only whether the interests and abilities of both sexes are accommodated by the selection of sports and levels of competition, but whether athletes of both sexes are treated equally in terms of equipment, facilities, coaches, and scheduling such that there is true equality of athletic opportunity.