Superintendent
Emmanuel Caulk
Portland Public
Schools
196 Allen
Avenue
Portland,
Maine 04103
Re:
Compliance Rev. No. 01-11-5001
Dear
Superintendent Caulk:
I write to inform
you of the resolution of the above-referenced compliance review that was
initiated by the U.S. Department of Education, Office for Civil Rights (OCR),
under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (Title IX), and its implementing regulation at 34 C.F.R. Part 106. As you know, the purpose of this compliance
review was to determine whether the Portland Public Schools (District) was
providing its students an equal opportunity to participate in its
interscholastic athletics program by effectively accommodating the interests
and abilities of its male and female students, as required by 34 C.F.R. §
106.41(a) & (c)(1). OCR also
analyzed whether the District provides males and females equal opportunity with
respect to (1) the opportunity to
receive coaching and assignment and compensation of coaches, and (2) the
provision of locker rooms and athletic facilities, as required by 34 C.F.R. §
106.41(a) & (c)(5 - 7). While OCR’s
review determined that the District was not in compliance with the Title IX
requirements in these areas, the District agreed to address these issues as set
forth in the enclosed Resolution Agreement.
As
part of the investigation, OCR met with the prior superintendent, the
District’s athletic directors, legal counsel, and other administrative
officials. These individuals, as well as
many others within the District, fully cooperated with OCR, providing
documentation and access to District facilities and coaches, students, and
staff. We appreciated the District’s
cooperation in our investigation and negotiations and are confident this will
continue into the monitoring period to follow.
I.
Jurisdiction
OCR
undertook this compliance review pursuant to Title IX and its implementing
regulation at 34 C.F.R. Part 106, which prohibits discrimination on the basis
of sex in education programs and activities receiving Federal financial
assistance. As a recipient of Federal
financial assistance from the Department, the District is subject to Title
IX. In addition to the language from the
Regulation, OCR also uses as a means of assessing compliance the
Intercollegiate Athletics Policy Interpretation issued on December 11, 1979 in
the Federal Register (Policy Interpretation); the Clarification of
Intercollegiate Athletics Policy Guidance: The Three Part Test, issued on
January 16, 1996; and the Intercollegiate Athletics Policy Clarification: The
Three Part Test – Part Three, issued on April 20, 2010. The provisions of these policy documents are
generally applicable to interscholastic athletics programs.
II.
Background
The District
is the largest school district in the state of Maine. It has two primary high schools: Portland
High School (Portland High) and Deering High School (Deering High). The District also has a third high school –
Casco Bay High School – but it is a small “school of choice” for the District,
enrolling only approximately 275 students.
Casco Bay High School does not operate its own athletics program. Instead, Casco Bay students seeking to
participate in interscholastic athletics are provided the choice to take part
in the athletics program of either Portland High or Deering High. OCR accounted for Casco Bay students in
reviewing the programs of both Portland High and Deering High, but this student
population was not a determining factor in OCR’s review as both schools had
relatively small and approximately equal numbers of Casco Bay female and male
students participating in the their athletics programs.
III.
Issues Investigated
OCR
investigated the following issues during this compliance review:
A.
Whether
the District provided female students an equal opportunity to participate in
its interscholastic athletics program by effectively accommodating their
interests and abilities, in accordance with 34 C.F.R. § 106.41(a) & (c)(1).
B.
Whether
the District provided female athletes an equal opportunity in the following
areas:
1)
The
opportunity to receive coaching; assignment and compensation of coaches, in
accord with 34 C.F.R. § 106.41(a) & (c)(5)-(6).
2)
The
provision of locker rooms, practice facilities, and competition facilities, in
accord with 34 C.F.R. § 106.41(a) & (c)(7).
The Title IX provision of equal opportunities with
respect to the opportunity to participate in interscholastic athletics is
addressed in the Title IX implementing regulation at. 34 C.F.R. § 106.41(c)(l).
The implementing regulation states that, in determining whether equal
opportunities are provided for boys and girls, OCR considers whether the
selection of sports effectively accommodates the interests and abilities of
members of both sexes to the extent necessary to provide equal opportunity.
OCR’s determination of whether equal athletic
opportunities are provided involves a two-part analysis that examines whether
both sexes have (1) equal opportunities to compete,
and (2) equivalent levels of competition.
A. Equal Opportunities to Compete
With
regard to the first part of the analysis – whether both sexes have equal
opportunities to compete – OCR considers three factors to determine whether a
district is providing nondiscriminatory participation opportunities. These factors are commonly referred to as the
“Three Part Test” and are described in the Policy Interpretation and subsequent
OCR policy clarifications. A district
must meet at least one part of the Three Part Test to be in compliance with the
regulation. The three parts are as
follows:
1.
Whether
participation opportunities for male and female students are provided in
numbers substantially proportionate to their respective enrollments; or
2.
Where
the members of one sex have been and are underrepresented among athletes,
whether the district can show a history and continuing practice of program
expansion which is demonstrably responsive to the developing interests and
abilities of the members of that sex; or
3.
Where
the members of one sex are underrepresented among athletes, and the district
cannot show a history and continuing practice of program expansion, as
described above, whether it can demonstrate that the interests and abilities of
the members of the underrepresented sex are fully and effectively accommodated
by the present program.
Each part
of the three-part test is an equally sufficient and separate method of
complying with the Title IX regulatory requirement to provide nondiscriminatory
athletic participation opportunities.
Part One: Participation in Proportion to Enrollment
The
Policy Interpretation, in relevant part, defines athletic participants as those
athletes: “(a) [w]ho are receiving the institutionally-sponsored support normally
provided to athletes competing at the institution involved, e.g., coaching, equipment, medical and
training room services, on a regular basis during a sport’s season; and (b)
[w]ho are participating in organized practice sessions and other team meetings
and activities on a regular basis during a sport’s season; and (c) [w]ho are
listed on the [rosters] maintained for each sport…” Using this definition as a guide, OCR
reviewed team rosters from the 2009-10, 2010-11, and 2011-12 seasons and
interviewed head coaches, as well as assistant coaches, athletes, and the
Athletic Directors of both Portland High and Deering High. OCR focused its analysis on the 2010-11 and
2011-12 academic years. Based on our
investigation, OCR determined that the
District
was not providing participation opportunities for female students in numbers
substantially proportionate to their 2010-11 or 2011-12 enrollment at either
Portland High or Deering High.
In
reviewing the District’s program, OCR analyzed each high school with an
interscholastic athletics program individually because they had separate
athletic directors, separate budgets, and competed against each other in the
same league. As mentioned above, the
District does have a third high school – Casco Bay – but it is a small school
of choice and students wishing to participate in athletics from Casco Bay have
the option of participating at either Deering High or Portland High. Also, OCR did note these students in its
review, but found that the students broke evenly between the schools and were
roughly equivalent with regard to the male and female breakdown of the
athletes.[1] The overall numbers for the District were as
follows:
Portland
School District Student Population*
|
|
2010-11
|
2011-12
|
||
|
Males
|
1,195
|
51.33%
|
1,110
|
49.91%
|
|
Females
|
1,133
|
48.67%
|
1,114
|
50.09%
|
|
Total
|
2,328
|
2,224
|
||
*Data
provided by the District and the Maine Dept. of Education
Portland
School District Athletic Participation*
|
|
2010-11
|
2011-12
|
||
|
Male Athl.
|
830
|
54.97%
|
793
|
53.65%
|
|
Female Athl.
|
680
|
45.03%
|
685
|
46.35%
|
|
Total
|
1,510
|
1,478
|
||
*Data
compiled from team rosters and coach interviews
As
a result, OCR determined that in 2010-11, girls were underrepresented in the
District’s athletics program, with a disparity of 3.64%. In 2011-12, that disparity remained and even
grew slightly to 3.74%. OCR then
conducted its analysis in each school to determine whether the disparities in
question would yield enough athletes to potentially field a team.
Portland High
At
Portland High, OCR learned that there was an enrollment of 995 students during
the 2010-11 academic year. Boys
accounted for 480 of those students, or 48.24% of the student body. In that same year, girls accounted for 515 of
those students, or 51.76% of the student body.
OCR also determined that there were 408 boys and 364 girls participating
in the Portland High athletics program, for a total of 772 athletic
opportunities during the 2010-11 academic year.
Boys constituted 52.85% of those athletic opportunities and girls
constituted 47.15%. Accordingly, there
was a disparity of 4.61% between the girls’ representation in the overall
student body and their athletic participation rate. This constituted approximately 74 athletic
opportunities needed for girls to achieve parity without cutting any athletic opportunity
for boys.
During
the 2011-12 academic year, OCR learned that there was an enrollment of 944
students at Portland High. Boys
accounted for 442 of those students, or 46.82% of the student body. In that same year, girls accounted for 502 of
those students, or 53.18% of the student body.
OCR also determined that there were 392 boys and 354 girls participating
in the Portland High athletics program, for a total of 746 athletic
opportunities during the 2011-12 academic year.
Boys constituted 52.55% of those athletic opportunities and girls
constituted 47.45%. Accordingly, there
was a disparity of 5.73% between the girls’ representation in the overall
student body and their athletic participation
rate. This constituted approximately 91
athletic opportunities needed for girls to achieve parity without cutting any
athletic opportunity for boys.
Portland
High Student Population*
|
|
2010-11
|
2011-12
|
||
|
Males
|
480
|
48.24%
|
442
|
46.82%
|
|
Females
|
515
|
51.76%
|
502
|
53.18%
|
|
Total
|
995
|
944
|
||
*Data
provided by the District
Portland
High Athletic Participation*
|
|
2010-11
|
2011-12
|
||
|
Male Athl.
|
408
|
52.85%
|
392
|
52.55%
|
|
Female Athl.
|
364
|
47.15%
|
354
|
47.45%
|
|
Total
|
772
|
746
|
||
*Data
compiled from team rosters and coach interviews
Deering
High
At Deering
High, OCR learned that there was an enrollment of 1,052 students during the 2010-11
academic year. Boys accounted for 560 of
those students, or 53.23% of the student body.
In that same year, girls accounted for 492 of those students, or 46.77%
of the student body. OCR also determined
that there were 422 boys and 316 girls participating in the Deering High athletics
program, for a total of 738 athletic opportunities during the 2010-11 academic
year. Boys constituted 57.18% of those
athletic opportunities and girls constituted 42.82%. Accordingly, there was a disparity of 3.95%
between the girls’ representation in the overall student body and their
athletic participation rate. This
constituted approximately 55 athletic opportunities needed for girls to achieve
parity without cutting any athletic opportunity for boys.
During the
2011-12 academic year, OCR learned that there was an enrollment of 986 students
at Deering High. Boys accounted for 525
of those students, or 53.25% of the student body. In that same year, girls accounted for 461 of
those students, or 46.75% of the student body.
OCR also determined that there were 401 boys and 331 girls participating
in the Deering High athletics program, for a total of 732 athletic
opportunities during
the 2011-12 academic year. Boys
constituted 54.78% of those athletic opportunities and girls constituted
45.22%. Accordingly, there was a
disparity of 1.53% between the girls’ representation in the overall student
body and their athletic participation rate.
This constituted approximately 21 athletic opportunities needed for
girls to achieve parity and without cutting any athletic opportunity for boys.
Deering
High Student Population*
|
|
2010-11
|
2011-12
|
||
|
Males
|
560
|
53.23%
|
525
|
53.25%
|
|
Females
|
492
|
46.77%
|
461
|
46.75%
|
|
Total
|
1,052
|
986
|
||
*Data
provided by the District
Deering
High Athletic Participation*
|
|
2010-11
|
2011-12
|
||
|
Male Athl.
|
422
|
57.18%
|
401
|
54.78%
|
|
Female Athl.
|
316
|
42.82%
|
331
|
45.22%
|
|
Total
|
738
|
732
|
||
*Data
compiled from team rosters and coach interviews
Numbers
aside, the District’s interscholastic athletics program is similar across its
two major high schools. Portland High’s
interscholastic athletics program consists of 25 sports, of which there
are 10 female teams competing at the varsity level, 11 male teams competing at
the varsity level, and 4 teams classified as co-ed that compete at the varsity
level.[2]
Deering High’s athletics program is similar, consisting of 23 sports, of which
there are 10 female teams competing at the varsity level, 10 male teams
competing at the varsity level, and 3 teams classified as co-ed that compete at
the varsity level.[3] At both Portland High and Deering High, there
exist several levels of athletic opportunities available, i.e., varsity, junior varsity, and “first teams” (or freshman
teams). However, in certain sports, e.g., golf and tennis, the athletes are
listed on one team and certain members competed formally in varsity matches
while others competed in informal junior varsity level matches. The District has a boys’ and girls’ team
in almost every sport sanctioned by the state’s interscholastic sport governing
body, the Maine
Principals’ Association (MPA). The only MPA-sanctioned girls’ sport not
currently offered in the District is volleyball. Portland High also has a sailing team that is
not sanctioned by the MPA, but competes interscholastically in a regional
league with other New England towns.
Still,
there remains room for growth at both Portland High and Deering High in terms
of the levels of participation, e.g.,
adding an additional level of a team or adding volleyball.
In sum, OCR
found that there was a district-wide disparity of close to 4% between the
enrollment of girls and their participation in the District’s interscholastic
program; OCR also found disparities at each of the high schools. Accordingly, the District is not in
compliance with part one of the Three Part Test. Portland
High would need to create 91 athletic participation opportunities to reach
compliance on this first part of the Three Part Test; Deering High would need to
add 21 opportunities, for a total of 112 opportunities District wide.[4]
It is also possible that the two high
schools could collaborate – as they currently do with girls’ hockey – if there
is an insufficient number of students to create a team at either school but
there would be a sufficient number to create a combined team.
Part Two: History of Program Expansion
OCR
next analyzed whether the District – at either Portland High or Deering High –
demonstrated a history and continuing practice of program expansion responsive
to the developing interests and abilities of the under-represented sex. This part of the Three Part Test looks at a
district’s past and continuing efforts to provide non-discriminatory
participation opportunities through program expansion. OCR first considers a district’s historical
record of adding interscholastic teams for the under-represented sex. If a district can demonstrate a consistent
effort to add interscholastic teams for the underrepresented sex over time, OCR
then looks at other factors that demonstrate a district’s commitment to
providing equal athletic opportunities to both sexes, for example, its implementation of a
nondiscriminatory policy or procedure for requesting the addition of sports and
the effective communication of the policy or procedure to students.
In
analyzing this part of the Three Part Test, OCR reviewed the start date (or
best estimate) for every sport offered by the District that had a recorded
history. The District informed OCR that
the start dates of many additional sports were unknown or could not be defined
with any accuracy because they were started long ago. For example, OCR was informed that the
District’s athletics program history dates back to at least 1908, when boys’
basketball began at Portland High. OCR
reviewed team pictures from the early 1900s that indicated that boys’ football
and baseball started at approximately the same time. Additional sports were added in the 1970s,
1980s and through the 2000s at both Portland High and Deering High, however,
there was no written record of when sports were specifically added. The District has canceled or combined sports
teams for the underrepresented sex in the past few years, including a girls’ first
team field hockey at Portland High and girls’ hockey at Deering High.[5]
OCR noted that both high schools also had first teams in softball in previous
years.
Based on
this information, OCR concluded that the District could not demonstrate both a
“history” and “continuing practice” of program expansion for its
underrepresented sex. While there were
periods of time in the District’s history when it increased participation
opportunities for girls, there were significant periods of time when little or
no expansion occurred and other, more recent periods of time when the District
shrunk its program offering for girls.
Accordingly, OCR determined that the District did not meet part two
of the Three Part Test.
Part Three: Interests and Abilities
When
a school cannot demonstrate compliance with either parts one or two, OCR next
turns to part three of the Three Part Test to determine if the District is
fully and effectively accommodating the athletic interests and abilities of the
underrepresented sex. To make this
determination, OCR considers the District’s assessment of any unmet interest
and ability in its athletics program.
OCR also considers other indicators of possible interest and ability
such as developing sports on a regional or national level, as well as local
youth and feeder programs in the areas from which a district draws its
students.
The
District had not conducted an athletic interest survey at either Portland High
or Deering High during the tenure of either of the relatively new Athletic
Directors (both starting within the last 4 years) and it was unclear when, if
ever, any survey was conducted or what other outreach efforts were undertaken
to assess athletic interest of the girls in the District. OCR learned during its interviews of athletes
and coaches of potential interest in a volleyball team, the only MPA sanctioned
sport not currently offered for girls.
OCR also learned about a coed volleyball club that existed at Portland
High, and it learned of some opportunities offered by the City of Portland to
encourage girls to participate in hockey and soccer, but there was no
indication that the District had coordinated with any of those efforts to
improve its own athletics program. Both of
the Athletic Directors interviewed by OCR expressed their commitment to improving
athletic opportunities in the District.
Lastly, OCR
also noted that the District’s criteria and process for starting new sports are
very informal and not well publicized, with much discretion left at the local
high school level with students ostensibly approaching the Athletic Directors
and making their case to start teams.
Based on
its investigation, OCR determined that the District has not satisfied prong
three of the Three Part Test because the interests and abilities of female
students have not been fully and effectively accommodated by its
interscholastic athletics program. The
District had not adequately assessed or taken other steps prior to OCR’s review
that would demonstrate that it has met its students’ interests and
abilities. The District had not undertaken
a recent district wide survey or other assessment of the athletic interest and
abilities of any of its students. OCR’s
investigation revealed potential interest in girls’ volleyball, the only MPA
sanctioned sport not currently offered for girls, as
the result of a survey conducted by the District during our investigation. The District has agreed to add girls’
volleyball in the 2014-15 academic year, as described below.
- Equal Levels of Competition
The second
part of the two-part athletic opportunity analysis examines the level and quality of competitive opportunities
provided to the athletes. In making this
determination,
OCR considers whether the competitive schedules for boys’ and
girls’ teams, on a program-wide basis, afford proportionally similar numbers of
male and female athletes equivalently advanced competitive opportunities. OCR compares the competitive events for each
team at the institution’s declared competitive level(s) and determines whether
any of the teams compete below the declared levels.
In this
case, the District is a member of the Southern Maine Activities Association
(SMAA) and competes primarily against other teams at the same level in the
SMAA. Portland High’s coed sailing team
is an exception: it is a collaborative team with a nearby private school and it
competes in the New England Schools Sailing Association (NESSA), a division of
the Inter-Scholastic Sailing Association.
OCR asked each individual coach interviewed whether they felt that their
teams played at the appropriate competitive level and against appropriate
teams, and in each instance this was confirmed.
Virtually every coach OCR interviewed described the SMAA as the premier
large school league in the state of Maine.
Similarly, the Portland High Athletic Director confirmed that the NESSA
is very competitive.
As a result of these findings, OCR concluded that the levels of
competition for boys’ and girls’ teams, on a program-wide basis, generally afforded
male and female athletes equivalent competitive opportunities.
***
In
conclusion, OCR has determined that the District interscholastic athletics
program does not provide students an equal opportunity to participate in its
interscholastic athletics program by effectively accommodating the interests
and abilities of its male and female students, as required by 34 C.F.R. §
106.41(a) & (c)(1).
Pursuant to
the terms of the enclosed Resolution Agreement and based on the District’s assessment
of student interest and ability in girls’ volleyball, the District has agreed
to add girls’ volleyball to its interscholastic athletics program beginning in
the 2014-15 school year unless further assessment determines interest at either
Deering or Portland High School is not sufficient to field a team. The District will promote and recruit for the
teams prior to the next school year and will provide resources and facilities,
including locker rooms, practice and competitive facilities, to the new
volleyball teams that are comparable to those provided to other teams. The District also agreed to continue to
assess student interest and ability and to add teams and additional athletic
opportunities for girls so that by no later than the 2015-16 school year, the District’s
interscholastic athletics program will meet part one of the Three Part Test (in
that the number of girls participating in athletics will be in proportion to
their enrollment) or part three of the Three Part Test (the interscholastic
program will fully accommodate the interest of girls in athletics). The District will provide also notice each
year to the District community of all of the sports available for students to
participate in at the high school.
V.
Issue
Two: Comparable Athletic Benefits
The
Title IX regulation at 34 C.F.R. § 106.41(a) provides 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 athletics offered by a recipient district. In ensuring compliance with this section of
Title IX, OCR examined several aspects of the District’s program to ensure that
it was providing female students an equal opportunity to benefit from its
interscholastic athletics program, in accord with 34 C.F.R. § 106.41(a) and
(c), as well as the Policy Interpretation mentioned above. OCR specifically examined whether the
District provided female athletes an equal opportunity in the following areas:
1.
The
opportunity to receive coaching; assignment and compensation of coaches, in
accord with 34 C.F.R. § 106.41(a) and (c)(5) & (c)(6).
2.
The
provision of locker rooms, practice facilities, and competitive facilities, in
accord with 34 C.F.R. § 106.41(a) & (c)(7).
In
considering each of these areas in the District’s athletics program, OCR
conducted an overall review of the boys’ and girls’ teams at both Portland High
and Deering High. In other words, OCR
compared the facilities and coaches provided to the teams in the girls’
programs at each individual school to the facilities and coaches provided to
the teams in the boys’ programs at the same school. When disparities were identified between the
girls’ and the boys’ teams, e.g., if a
boys’ team received a superior benefit in some way, OCR considered whether the
benefit provided to the boys’ program was offset by an unmatched benefit to any
of the teams in the girls’ program. In
making this “program-wide” comparison, and before OCR concluded that a benefit
to one of the teams in the girls’ program offset a benefit provided to one of
the teams in the boys’ program, OCR considered whether the offsetting benefits
were equivalent or equal in effect. In
other words, OCR only found the benefit offsetting if it had the same or a
similar effect on the student-athlete(s) or team within this program component.
Once
OCR identified disparities and found no evidence of offsetting, we considered
whether the differences between the benefits provided to the boys’ and girls’
programs were negligible. Where the
disparities were not negligible, OCR examined whether they were the result of
legitimate, nondiscriminatory factors.
If OCR found no legitimate, nondiscriminatory reasons for the
disparities, OCR then determined whether the identified disparities resulted in
the denial of equal opportunity to male or female athletes, either because the
disparities collectively were of a substantial and unjustified nature or
because the disparities in the program component were substantial enough by
themselves to deny equal athletic opportunity.
The result of this comparison was not to ensure identical benefits,
opportunities, or treatment, but rather, to ensure that, overall, the athletics
program provided equivalent benefits to boys and girls.
Further, the District has a responsibility under Title IX to ensure that equivalent benefits and services are provided to members of both sexes in its athletics programs, regardless of the funding source(s) for these benefits and services. Thus, OCR considers benefits and services provided through the use of private funds, including booster club funding, in combination with all other benefits and services. Where private funds provide benefits or services that assist only teams of one sex, the district must ensure that teams of the other sex receive equivalent benefits and services. If private funds provide benefits and services to athletes of one sex that are greater than what the institution is capable of providing to athletes of the other sex, then the institution shall take action to ensure that benefits and services are equivalent for both sexes.
- Opportunity to Receive Coaching & the
Assignment and Compensation of Coaches
The
regulations at 34 C.F.R. § 106.41(c)(5) and (c)(6) require that, in determining
whether equal opportunities are provided to both sexes in an athletics program,
OCR consider the availability, assignment, and compensation of coaches. The Policy Interpretation discusses several
considerations to take into account in assessing Title IX compliance regarding
coaching, including the relative availability of full-time, part-time, and
assistant coaches, as well as the training, experience, other professional
qualifications and professional standing.
The Policy Interpretation states that a violation will be found where
compensation or assignment policies or practices deny male and female athletes
coaching of equivalent quality, nature, and availability. The Policy Interpretation states that nondiscriminatory
factors can affect the compensation of coaches, however, OCR must determine
whether differences are caused by permissible factors such as the range and
nature of duties, the experience of individual coaches, the number of
participants for particular sports, the number of assistant coaches supervised,
and the level of competition at issue.
In
reviewing this component, OCR again met with the Athletic Directors from both
Portland High and Deering High. Both
Athletic Directors described a system whereby a formula dictates the pay for
coaches based on whether they are a head coach or an assistant. They explained
that they had general budgets and the prior coaches’ salary to use as a guide
in determining coaching salaries.
In
examining individual coaching salaries, OCR determined that most coaching
salaries are equal within sports, for example, the boys’ and girls’
varsity cross country coaches both receive the same compensation ($3,195), even
if they receive less than the girls’ field hockey or boys’ and girls’ soccer
coaches ($4,791). Similarly, most
salaries are relatively equivalent between sports, for example, the
field hockey coaches earn the same as the boys’ or girls’ lacrosse coaches, and
slightly more than the cross-country or golf coaches. The only exception to this rule is the
varsity football coaches, the varsity boys’ and girls’ basketball coaches, and
the boys’ and girls’ hockey coaches, who earn more than any other coaches in
the District. All eight head coaches
(four varsity basketball coaches, two varsity hockey coaches, and two varsity
football coaches at both Portland High and Deering High) received these higher
salaries ($7,187), and the District explained that it is because of the length
of the season and the commitment required from the positions, e.g., the football coaches report in
early August and work until Thanksgiving, whereas many other fall sports do not
start until late August and wrap up in early November. Given that the salary is the same for each
sport and that three of the coaches at issue are coaches of girls’ teams, OCR
accepted this non-discriminatory justification.
With
regard to duration of contracts, conditions relating to contract
renewal, and other terms and conditions of employment, contracts are year to year, and the
information gathered by OCR did not reveal any examples of involuntary non-renewal. The nature of the coaching duties, working
conditions, and terms of employment also appeared equivalent for all
coaches. With regard to training, experience,
other professional qualifications and professional standing, we found that the coaches were
equivalent and there were no instances where a boys’ team received superior
coaches in this regard.
Next
OCR interviewed the coaches and assistant coaches, as well as the players, to
determine the nature of coaching assignments for each team. OCR determined that the District primarily
follows a model that assigns a head coach to each varsity, junior varsity, and
first team. For many sports, such as
football, wrestling, and soccer, the junior varsity and first team coaches also
serve a dual role as assistants to the varsity coaches. In other sports, like lacrosse and
basketball, the coaches focus primarily on their own team and volunteers assist
the head coaches at each level. OCR also
noted that many varsity teams in the District also have dedicated assistant
coaches, e.g., football, girls’
hockey, boys’ and girls’ track, swimming, etc.
In these cases, OCR spoke with the assistant coaches and tried to
determine their responsibilities, which range from general assistant duties to
being a specialized positional coach.
In
talking with coaches and students, OCR also learned that most teams have
volunteer coaches that do not appear on the District’s budgets. While many of these volunteers are true
volunteers that do not receive compensation, the various booster clubs
compensated many volunteer coaches. For
example, OCR learned that the football, as well as boys’ soccer and basketball
teams all have “volunteer” assistant coaches who are given gifts or payments by
the booster clubs at the end of the season.
Once a “volunteer” receives a payment by a booster club, for purposes of
its analysis of the availability of coaches, OCR considered it a benefit to the
team that received the coaching services of that volunteer and included it in
the same analysis as the District-hired coaches.
With
that as a framework, it became evident that, although the teams largely receive
coaches of equivalent quality, training and experience and they are paid using
a consistent formula, the boys’ teams receive the primary benefit from the paid
volunteer coaching system that exists in the District. For example, while the Portland High boys’
and girls’ basketball teams have an equal number of paid head coaches, the boys
have an additional paid “volunteer” coach.
At Deering High there are similar situations, with the boys’ baseball
team receiving several “volunteer coaches” that are paid by booster clubs,
while the softball team receives none.
Even comparing the teams that have no analog (football, field hockey),
the boys’ teams (football) have more paid “volunteer” coaches than any girls’
teams that do not have a boys’ analog (field hockey). This is true at both Portland High and
Deering High.
***
In
conclusion, OCR’s review demonstrated that there are disparities in favor of
the boys in regard to the availability of coaching. Specifically, several boys’ teams received
additional coaching opportunities that were not provided to the girls, due to the
remuneration provided to volunteer assistant coaches through the booster clubs. OCR has concluded that the disparities
favoring boys were not offset by any disparities favoring girls, and were substantial
enough to deny female athletes an equal opportunity to receive coaching, and
that the District failed to comply with the applicable Title IX regulation.
The
Resolution Agreement requires the District to ensure that it is providing equal
athletic opportunities in the provision of coaching for boys and girls at the
high schools and also specifically required the District to provide OCR with a
salary re-assessment by December 31, 2013.
The Resolution Agreement also requires that the District ensure that
booster club and other private funding are considered as part of the District’s
responsibility to provide equivalent athletics benefits and services to both
sexes. The District has already revised
its policy on booster club operation. It
is currently instituting a model that only allows a single booster club that is
centrally administered for all sports.
It is expected that this change to the booster club policy will directly
impact the provision of paid “volunteer” coaches.
B.
Locker
Rooms, Practice Facilities & Competitive Facilities
The
regulation at 34 C.F.R. § 106.41(c)(7) states that, in determining whether
equal opportunities are provided to both sexes in an athletics program, OCR
will consider the provision of locker rooms, practice facilities, and
competitive facilities. The Policy
Interpretation discusses a number of factors to be considered in determining
whether a district is providing equal opportunity in this area, including the
quality and availability of locker rooms, practice facilities, and competitive
facilities, and the exclusivity, maintenance and preparation of practice and
competitive facilities.
In conducting
its review, OCR visited each of the District’s practice and competitive
facilities, as well as its locker rooms, weight room, trainer’s room, and
storage facilities to inspect them for each of these attributes. OCR also interviewed the Athletic Directors,
the grounds crew chief, and coaches and athletes from virtually all of the
District’s sports to ask them about the quality and exclusivity of their
facilities. With regard to each area,
OCR analyzed whether there were differences between boys’ and girls’
facilities, locker rooms, etc. In the
event that there were differences, OCR looked to determine the overall effect
of these differences on a program-wide level.
In the instance that the overall effect of any difference was more than
negligible, OCR offset those differences with other benefits for the opposite sex. After completing this review, OCR determined
that there were disparities in favor of the boys’ program.
1.
The quality,
availability, and exclusivity of use of the facilities provided for practice
and competitive events
As an
initial matter, OCR determined that, given the limited space available in the
District, boys’ and girls’ sports teams at both Portland High and Deering High
shared facilities whenever possible. For
example, the boys’ and girls’ outdoor track teams at both Portland High and
Deering High use Fitzpatrick Stadium for practice and competition. This type of facility sharing is a common
practice for all of the running sports, e.g.,
indoor track and cross country, at both Portland High and Deering High. But the practice is not limited to just these
sports. For example, the boys’ and
girls’ soccer teams at Deering High use the fields behind the school for
practices and can use different parts of the same facility at the same time.
Another
practice that both Portland High and Deering High use to ensure their teams
have appropriate facility access is to have teams alternate usage of the
facilities. For example, the Portland
High boys’ and girls’ lacrosse teams use the same fields for practices and
games and alternate between these fields as required, i.e., when the girls have a game they play at Fitzpatrick Stadium
and the boys practice at the Preble Street fields and vice versa. Similarly, both the boys’ and girls’ hockey
teams at Portland High share the Portland Ice Arena and alternate the times for
practice and competition. Both high schools also alternate field usage among
different sports. For example, the
football programs at both Portland High and Deering High share the competitive
fields they play on (Fitzpatrick Stadium and Memorial Field, respectively) with
other boys’ and girls’ teams of several other fall and spring sports teams, e.g., field hockey, lacrosse, soccer.
In
instances where the common practice for a sport is to alternate usage of a
facility, OCR examined the practice and competition times of all the teams
using the facility and questioned the coaches to ensure that the teams shared
the facilities fairly. OCR also spoke
with parks and recreation officials from the City of Portland who played an
important role in scheduling the District’s athletic events on City-owned
fields to better understand the difficulties in that process. Finally, for sports classified as co-ed, OCR
asked if there are any distinctions based on sex, e.g., do the boys have the option to use an aspect of the facility
more or in a different way than the girls.
Based on
this review, OCR determined that, with regard to the teams that share a
facility with another team of a different sex, for the most part both teams use
the same facilities for the same purposes, the fields are the same quality for
both users, i.e., no additional
maintenance is done with respect to the sex that is playing, and the use of the
facility is scheduled such that no sex unfairly receives the benefits of the
most convenient practice times, or shoulders the burden of practicing or
playing at difficult times, e.g., no
sex is forced to consistently use fields in the early morning or at dusk when
lighting is poor or it is cold.
There is,
however, one primary disparity in favor of boys. Specifically, the boys’ varsity baseball
program at both Portland High and Deering High compete at Hadlock Stadium, home
to the Portland Sea Dogs, a Double-A professional baseball team. Hadlock Stadium is a professional grade field
that houses 7,000 fans. Meanwhile, the
girls’ varsity softball teams at both Portland High and Deering High compete at
Payson Park and Harlow Field, both of which have poorer quality fields, poorer
dugouts, and a seating capacity of only about 100 fans. Moreover, Deering High’s varsity softball
team practices at Deering High’s softball field, which is of similar poor
quality and also serves as the competition field for the junior varsity
team. Although the dimensions of Hadlock
Stadium make it inappropriate for softball, and the fact that the District does
not own the field makes it impossible to change these dimensions, the District (in
conjunction with the City) has agreed to provide substantial renovations to address
the disparity between Payson Park and Hadlock Field, while also providing a
level of exclusivity that the boys do not enjoy at Hadlock Field. This plan is set forth in the enclosed
Resolution Agreement.
2.
The quality,
availability & exclusivity of use of the locker room facilities
OCR next
examined the District’s locker room facilities to ensure that boys and girls
are provided equivalent locker rooms of adequate quality, that the locker rooms
are sufficiently available for their use, and that the locker rooms are
appropriately exclusive to the team in question. After interviewing both Athletic Directors
and interviewing coaches at Portland High and Deering High, OCR gained an
understanding of how locker rooms are assigned and used in the District. Although the District does not have a formal
policy for locker room assignments and use, the District does have a consistent
practice of assigning locker rooms to teams at either their respective high school
or the facility in question, e.g., the
Expo, the Riverdon Pool, the Portland Ice Arena, and Hadlock Field, whenever
possible. Sports that fall into this
category include the indoor and outdoor track teams, the baseball teams, the
swimming teams, and the tennis teams.
Still other coaches informed OCR that their team does not use lockers or
are not assigned locker rooms, e.g.,
the golf and skiing teams, while other teams are assigned locker rooms at both
the Expo and their playing facility, e.g.,
the girls’ and boys’ hockey teams. OCR
took all of this information into consideration when comparing the boys’ and
girls’ programs at both Portland High and Deering High.
As with the
playing facilities, above, the biggest concern raised in OCR’s review of the
locker rooms at Portland High was the inequity that occurred when teams are
provided locker rooms outside of the high schools. For example, while the Portland High baseball
team is assigned a designated locker room at the Expo (which is adjacent to Hadlock
Field), OCR learned that the girls’ softball team does not receive the benefit
of a designated locker room, and girls change at the high school or wherever
they are able to find space. Similarly,
while the boys’ and girls’ soccer teams have assigned locker rooms at the Expo,
the boys enjoy the benefit of an exclusive locker room while the girls share
their locker room with umpires and football officials.
At Deering
High there exist similar concerns, as well as concerns with the locker rooms at
the school. For example, Deering High
uses its general physical education locker rooms for its athletes, but the
boys’ teams also have the benefit of a dedicated varsity locker room that is
the same size as the boys’ physical education locker room. The “varsity” locker room is a separate room
reserved for male athletes while the physical education locker room is the sole
locker room for every girl in the school.
The lockers in this varsity locker room are also considerably larger
than the general physical education locker room lockers and there is a bench
with a white board for team usage. The
boys’ team coaches – and male coaches, generally – also have access to a
coach’s office and a coaches’ locker room in the boys’ locker room area, while
the girls’ locker room does not include any equivalent space. Because this was a consistent practice at
Deering High – the boys using the dedicated varsity locker room while the girls
used the general physical education locker room – OCR found that it was a
concern.
3.
The
maintenance and preparation of practice and competitive facilities
Finally,
OCR also examined the quality of each athletic facility and locker room. As discussed above, most of the facilities
are used jointly by both the girls’ and boys’ teams and are scheduled in accord
with the teams’ needs and without regard to sex. Thus, in the instances where certain fields
have specific problems, i.e., poor field conditions, the problems are
shared equally between the sexes and do not adversely affect one sex over
another with the exceptions noted above.
***
In
conclusion, OCR found several disparities regarding locker rooms, practice
facilities, and competitive facilities at both Portland High and Deering
High. Specifically, the boys had access
to high quality playing fields that the girls could not use, and the girls
received inferior locker room facilities, which were not offset by benefits to
the boys. These disparities were substantial enough to deny equal opportunity
to female athletes in the District. The
District has set out specific steps that it is taking to remedy these concerns
in the enclosed Resolution Agreement.
The District has agreed to ensure that locker rooms, practice and
competitive facilities for girls’ teams will be equivalent to those provided to
boys’ teams and to maintain girls’ athletic facilities to ensure they are
equitable as compared to the boys’ facilities. Renovations will be made to locker rooms and
coaches rooms and substantial upgrades will be made to the girls’ softball
field. OCR noted that the District has already begun construction on these
projects.
VI.
Conclusion
OCR will
monitor the District’s implementation of the enclosed Resolution Agreement. The
Resolution Agreement, when fully implemented, will address the issues covered
by the review.
Please be
advised that this letter and the enclosed agreement cover only the issues
investigated as part of this compliance review and should not be construed to
address any other Title IX issues not investigated at this time. Letters of finding contain fact-specific
investigative findings and dispositions of individual cases. They are not
formal statements of OCR policy and should not be relied upon, cited, or
construed as such. OCR’s formal policy statements are approved by a duly
authorized OCR official and made available to the public.
OCR may initiate administrative
enforcement or judicial proceedings to enforce the specific terms and
obligations of this Agreement. Before
initiating administrative enforcement or judicial proceedings to enforce this
Agreement, OCR shall give the District written notice of the alleged breach and
a minimum of sixty (60) calendar days to cure the alleged breach.
OCR would like to thank outside
legal counsel Melissa Hewey, Chief Operating Officer Peter Eglinton, Athletic Directors
Melanie Craig and Michael Connolly, and former Athletic Directors Michael
McCullum and Bill LeRoy, as well as other District and City staff for their
cooperation during the course of this compliance review. We look forward to continuing to work productively
with you and your staff as we monitor the District’s implementation of the
enclosed agreement.
If you have any questions, please
feel free to contact Phil Catanzano, Civil Rights Attorney, at (617) 289-0038
or , or Anthony Cruthird, Compliance
Team Leader, at (617) 289-0037 or anthony.cruthird@ed.gov. You may also contact me at (617) 289-0011.
Sincerely,
Thomas J. Hibino
Regional
Director
Enclosure
cc: Melissa Hewey, Esq. (by e-mail)
[1] Deering High
had 7 students from Casco Bay participating in its program in 2010-11, 4 girls
and 3 boys; in 2011-12 they had 5 such students participating in its
interscholastic athletics program, 3 girls and 2 boys. Portland High had 3 Casco Bay athletes
participating in its interscholastic athletics program in 2010-11 and 2011-12;
in both years there were 2 boys and 1 girl.
[2] Boys’ sports include
cross-country, football, soccer, basketball, hockey, indoor track, wrestling,
baseball, lacrosse, tennis, and outdoor track.
Girls’ sports included cross country, field hockey, soccer, basketball,
hockey, indoor track, lacrosse, softball, tennis, and spring track. The co-ed sports included golf, skiing,
swimming, and sailing.
[3] Boys’
sports include cross-country, football, soccer, basketball, indoor track,
wrestling, baseball, lacrosse, tennis, and outdoor track. Girls’ sports included cross country, field
hockey, soccer, basketball, hockey, indoor track, lacrosse, softball, tennis,
and spring track. The co-ed sports
included golf, skiing, and swimming.
Also, the girls’ hockey team is actually a combined team with Portland
High; for purposes of this review, the athletes were counted at their respective
schools.
[4] When Casco Bay is
factored in, the
total
number of opportunities is
similar, at 111.
[5] The Portland High first
team field hockey team was cancelled in 2010-11. The Deering High girls’ hockey team was
combined with the Portland High girls’ hockey team in 2010-11, but since then there
have only been 1-2 Deering High girls participating in the combined girls’ hockey team at any one
time.