### OFFICE OF THE ASSISTANT SECRETARY

| The Office  for Civil Rights in the United States Department of Education issues this  guidance to provide State educational agencies, local educational agencies, and  postsecondary institutions with information to ensure that male and female  students are provided equal opportunities to participate in intercollegiate and  interscholastic athletics programs consistent with *Title IX of the Education  Amendments of 1972*, 20 U.S.C §§ 1681 *et seq*., and its implementing  regulations (34 C.F.R. Part 106).

This guidance represents the Department’s current  thinking on this topic. It does not create or confer any rights for or on any  person. This guidance does not impose any requirements beyond those required  under applicable law and regulations. 

If you are  interested in commenting on this guidance, please email us your comment at  OCR@ed.gov or write to us at the following address: Assistant Secretary for  Civil Rights, 400 Maryland Avenue, SW, Potomac Center Plaza, Washington,  DC 20202-1100. |
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September 17, 2008

Dear Colleague:

On behalf of the Office for Civil Rights (OCR) of the United  States Department of Education, I am writing to provide technical assistance  regarding your compliance with *Title IX of the Education Amendments of 1972*(*Title  IX*)*,*20U.S.C. §§ 1681 *et seq*.  Specifically, this letter provides clarifying  information to help institutions determine which intercollegiate or  interscholastic athletic activities can be counted for the purpose of *Title  IX* compliance; it does not represent a change in OCR’s policy under *Title IX*.

*Title IX*
*Title IX*
> 
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 offered by a  recipient...  

34 C.F.R. § 106.41(a).  In particular, the regulations require  institutions to “provide equal  athletic opportunity for members of both sexes.”  34 C.F.R. § 106.41(c).

When OCR conducts an investigation to determine  whether an institution provides equal athletic opportunities as required by the *Title IX* regulations, OCR evaluates the opportunities provided by the  institution’s intercollegiate or interscholastic “sports.”  OCR does not have a specific definition of  the term “sport.”  Instead, OCR considers  several factors related to an activity’s structure, administration, team  preparation and competition, which are identified below, when determining  whether an activity is a sport that can be counted as part of an institution’s  intercollegiate or interscholastic athletics program for the purpose of  determining compliance with 34 C.F.R. § 106.41(c).  

Many institutions  are members of intercollegiate athletic organizations, such as the National  Collegiate Athletic Association and the National Association of Intercollegiate  Athletics, or state high school associations that have organizational  requirements, which address the factors identified by OCR.  When the organizational requirements satisfy  these factors and compliance with the requirements is not discretionary, OCR  will presume that such an institution’s established sports can be counted under *Title IX. *This presumption can be  rebutted by evidence demonstrating that the institution is not offering the  activity in a manner that satisfies the factors below.  

When the presumption does not apply or has been rebutted  effectively, OCR will evaluate an institution’s activity on a case-by-case  basis.  In such an evaluation, OCR will  consider the factors below to make an overall determination of whether the  activity can be considered part of the institution’s intercollegiate or  interscholastic athletics program for the purpose of *Title IX* compliance.  

If, after reviewing the factors in their entirety, OCR  determines that an activity should not be counted under *Title IX*, an  institution may ask OCR to reconsider its initial determination and may provide  OCR with other evidence related to the activity’s structure, administration,  team preparation and competition.  This  approach affords recipients the flexibility to create athletics programs that  are responsive to the specific interests and abilities of their particular  student bodies.  

In  its case-by-case evaluation of whether an activity can be counted as an  intercollegiate or interscholastic sport for the purpose of *Title IX*compliance,  OCR will consider all of the following factors: 

-  **PROGRAM STRUCTURE AND ADMINISTRATION**  — Taking into account the unique aspects inherent in  the nature and basic operation of specific sports, OCR considers whether the  activity is structured and administered in a manner consistent with established  intercollegiate or interscholastic varsity sports in the institution’s  athletics program, including:    
Whether the operating budget, support services (including academic, sports medicine and strength and conditioning support) and coaching staff are administered by the athletics department or another entity, and are provided in a manner consistent with established varsity sports; and 
Whether the participants in the activity are eligible to receive athletic scholarships and athletic awards (e.g., varsity awards) if available to athletes in established varsity sports; to the extent that an institution recruits participants in its athletics program, whether participants in the activity are recruited in a manner consistent with established varsity sports.

- **TEAM PREPARATION AND COMPETITION**  — Taking into account the unique aspects inherent in the nature and  basic operation of specific sports, OCR considers whether the team prepares for  and engages in competition in a manner consistent with established varsity  sports in the institution’s intercollegiate or interscholastic athletics  program, including:         - Whether the practice opportunities (e.g., number, length and quality) are available in a manner consistent with established varsity sports in the institution’s athletics program; and   
  - Whether the regular season competitive opportunities differ quantitatively and/or qualitatively from established varsity sports; whether the team competes against intercollegiate or interscholastic varsity opponents in a manner consistent with established varsity sports;   	When analyzing this factor, the following may be taken into consideration:	    
  Whether the number of competitions and length of play are predetermined by a governing athletics organization, an athletic conference, or a consortium of institutions;
Whether the competitive schedule reflects the abilities of the team; and
Whether the activity has a defined season; whether the season is determined by a governing athletics organization, an athletic conference, or a consortium.

  - If pre-season and/or post-season competition exists for the activity, whether the activity provides an opportunity for student athletes to engage in the pre-season and/or post-season competition in a manner consistent with established varsity sports; for example, whether state, national and/or conference championships exist for the activity; and
  - Whether the primary purpose of the activity is to provide athletic competition at the intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities.     When analyzing this factor, the following may be taken into consideration:    
  Whether the activity is governed by a specific set of rules of play adopted by a state, national, or conference organization and/or consistent with established varsity sports, which include objective, standardized criteria by which competition must be judged; 
Whether resources for the activity (e.g., practice and competition schedules,
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  coaching staff) are based on the competitive needs of the team; 
If post-season competition opportunities are available, whether participation in post-season competition is dependent on or related to regular season results in a manner consistent with established varsity sports; and
Whether the selection of teams/participants is based on factors related primarily to athletic ability.    Please keep in mind that OCR’s determinations based on these  factors are fact-specific.  Therefore,  determinations may vary depending on a school district or postsecondary  institution’s athletics program, the nature of the particular activity, and the  circumstances under which it is conducted.    It is OCR’s policy  to encourage compliance with the *Title IX* athletics regulations in a  flexible manner that expands, rather than limits, student athletic  opportunities.  By disseminating this  list of factors, OCR intends to provide institutions with information to  include new sports in their athletics programs, such as those athletic  activities not yet recognized by governing athletics organizations and those  featured at the Olympic games, if they so choose.  Expanding interscholastic and  intercollegiate competitive athletic opportunities through new sports can  benefit students by creating and stimulating student interest in athletics,  taking advantage of athletic opportunities specific to a particular competitive  region, and providing the opportunity for access to a wide array of competitive  athletic activities.   OCR remains available to provide  technical assistance on this issue to recipients on a case-by-case basis.  If you have further questions regarding the  application of *Title IX* to athletics programs, or seek technical  assistance, please contact the OCR enforcement office serving your state or  territory.  Contact information for these  offices is available on the Department’s website at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.  Thank you for your attention to these matters and your  continued efforts to ensure equal athletic opportunities for all of our  nation’s students.  Sincerely, Stephanie  MonroeAssistant Secretary for Civil Rights     1 For purposes of this analysis, there is no presumption that the amount of time dedicated to competition must be equal to or greater than the amount of time dedicated to practice.     Top           Last Modified: 01/10/2020