Scenario 3 Conversation with Legal Experts What if your school spent most of its money on boys' teams? (To read the scenario in its entirety, with comments from our student panel, click on the above link. Click on participant names to read bios.) Marcia Greenberger Participants: Ben, 11th grade, doesn't play sports. Brooke, 12th grade, plays school sports. Shiona, 12th grade, has played school sports. Annie, 11th grade, plays on the basketball team. Neena Chaudhry is a lawyer at the National Women's Law Center Marcia Greenberger is a lawyer at the NWLC. Ron Peeler & Elizabeth Grob are lawyers whose focus includes school issues.     Ben Ben: Can the girls sue the school for discrimination, even though the donations came from private sources? Marcia Greenberger/Neena Chaudhry: The girls can sue the school for discrimination regardless of the source of funding. Under Title IX’s regulations, the school cannot claim that it is only following the orders of an independent, discriminatory entity—in this scenario, the alumni—because by implementing their wishes, the school essentially adopts, and is responsible for, the discriminatory policies as its own. Title IX requires schools to treat its male and female athletes equally, which includes the provision of equipment and facilities that are at issue in this scenario, regardless of where the money came from. Ronald Peeler/Elizabeth Grob: A school's obligations under Title IX and other state and federal laws are not avoided just because the school received money from a private source. An individual who is giving money to the school certainly can demand that money will be used for a specific purpose, such as a boys’ locker room. However, if the school accepts the gift and spends it in that way, it must recognize its responsibilities under Title IX, and if an inequity under the law is created, it will need to be corrected. To avoid concerns about inequity, the school district could try to convince the donor that the money should be spent in a way that will not create concerns under Title IX.   Annie Annie: If only the football team gets the benefit of the new facilities and equipment, aren't other boys' teams being discriminated against also? Marcia Greenberger/Neena Chaudhry: The scenario presented—in which only the football team gets the benefits of the new facilities and equipment funded by alumni—may involve other boys’ teams being treated unfairly, and the boys could complain about this treatment. But Title IX and the Constitution deal only with issues of discrimination based on gender, and the boys are not being treated differently on this basis. The girls might be able to claim discrimination if the school does not provide any of the girls’ teams with facilities or equipment as good as that provided to the boys’ football team. Ronald Peeler/Elizabeth Grob:This question raises a good point that other boys' teams are not being treated as well as the football team. Title IX, however, does not give the other boys’ teams a statutory right to claim that their sport has not been treated fairly. Title IX prohibits discrimination based on gender.   Shiona Shiona: If the school received funds for a whites-only sports program, could they have one? Can the school do indirectly what they can't do directly? Marcia Greenberger/Neena Chaudhry: The Equal Protection Clause (in the case of public schools) and Title VI of the Civil Rights Act of 1964 (in the case of federally funded education programs or activities) prohibit discrimination on the basis of race or ethnicity and therefore would prohibit a whites-only sports program. The fact that the school received outside funds for such a program is irrelevant; the school cannot use an intermediary to support discrimination. Ronald Peeler/Elizabeth Grob:Even though the school district may have received funds from a private source for a whites-only sports program, the school still is not allowed to discriminate on the basis of race. As result, the school would be unable to have a whites-only sports program. The school cannot establish a discriminatory program simply because the funding comes from an "indirect" source. In other words, with regard to race discrimination it cannot do indirectly what it can't do directly.   Brooke Brooke: If a school is funded by the government, does it have to undergo the same equal protection tests when creating regulations? (i.e., strict scrutiny test and substantial relationship test.) Marcia Greenberger/Neena Chaudhry: A school funded by the government may not be covered by the Equal Protection Clause because the equal protection tests are based on constitutional principles that apply only to the government—in this case, public schools. So a private school may receive federal funds but it would not be subject to the Equal Protection Clause; it would be covered by Title IX, however, which applies to all schools, public and private, that receive federal funds. Under the Equal Protection Clause, gender-based government action requires an "exceedingly persuasive justification" and may not rely on the "overbroad generalizations about the different talents, capacities, or preferences of males and females." This recent statement of the equal protection test for gender comes from the Supreme Court’s 1996 decision in the Virginia Military Institute case, in which women challenged VMI’s decision not to admit women to the school. Ronald Peeler/Elizabeth Grob Ronald Peeler/Elizabeth Grob: The Equal Protection clause guarantees that a governmental entity will treat people in a similar situation in a similar manner. It does not restrict the governmental entity's ability to classify persons or draw lines in the creation and application of laws and policies, but it does guarantee that those classifications will not be based upon impermissible criteria or be used arbitrarily to burden a group of individuals. For example, in some instances race might be an impermissible criteria. So long as the governmental entity had a rational basis for creating the classification, a court normally would not invalidate the regulation providing for the classification. However, if the classification is based upon an impermissible criteria such as religious viewpoint or content of speech, the court will impose a higher level of scrutiny when reviewing classification criteria. As a result, the governmental entity would be unable to classify individuals based upon that impermissible criteria. A public school is bound to follow the Equal Protection clause. Whether a private school is bound by that provision depends upon the situation. Courts have recognized that the receipt of government funds does not render the government responsible for a private entity's decisions concerning the use of those funds. The person seeking to establish that the action of a private party violated the Constitution must be able to point to the specific act or actions of the government which in fact motivated the private action. The purpose of this column is to identify issues. It does not purport to be exhaustive or to render legal advice. You should consult with qualified counsel or other professionals in developing responses to specific situations. 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