Football Booster Club Causes Title IX Problems for NJ High School

Last month we noted that the OCR was looking into whether the football team at Phillipsburg (N.J.) High School receives special treatment in violation of Title IX. In response, the school district hired its own lawyers to conduct an investigation. Though the district considered keeping the law firm's report under wraps, it later decided to make the findings public, which it did on Wednesday. According to the local press, the law firm's report "revealed that female athletes feel like second-class citizens in comparison to high school football players." A major factor that contributed to the inequitable treatment was fundraising (and spending) by the football boosters. Private funding outfitted football player in apparel and shoes and sponsored game-day meals, treatment that no female athletes received. (Additional details on the law firm report are here.)

OCR's position on booster clubs is clear: Attributing inequities to booster-raised funds does not absolve schools of providing equal treatment to student athletes regardless of gender. As the agency explained after confronting the issue in a similar case more than 10 years ago:

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. 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.

Consistently, OCR does not allow colleges to use ticket revenue to justify inequitable funding for certain sports. The theory is the same: Title IX puts the obligation on the school to provide a nondiscriminatory environment for its students. At the end of the day, student athletes are students. Private dollars can support private sports if they want to, but if they put them towards the schools, schools have to ensure that they aren't used to promote inequality. Schools don't get to tell their female students, "Too bad. You don't get equal treatment from us because society values boys' sports more." (It is beyond Title IX's scope to ensure equal treatment among men's sports. But schools can, and I argue should, voluntarily apply the same principle to ensure that boys' football does not receive equal treatment over others boys sports.)