Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Happy holidays to you and yours. Before you take time off next week, I need your help with a holiday dilemma. As the principal of a high school, I need to know if there are problems in my accepting a generous gift offered by a “Secret Santa.” Many years ago, this fellow played basketball for our high school team. Though I understand that he was largely a bench warmer in his playing years, he still has fond memories of his time on the team. Now, after making his fortune with some Internet company, he wants to buy satin warm-ups for the players of this year’s team, complete with their names embroidered on the back.
The dilemma is that this Secret Santa is serious about the “secret” part. He told me that he will make this gift only on the condition that his name remains confidential. So far, we have just spoken on the telephone, and therefore there is no email trail. But I don’t know how I can get the money from him to buy the warm-up jackets without creating a paper trail that would reveal his identity if some snoop makes an FOIA request. Can Legal Mailbag suggest a solution?
Mum’s the Word
Legal Mailbag has dealt with such issues in the past, and there are at least two ways to keep the identity of the donor confidential. First, this donor must have a lawyer, and on his behalf the lawyer can send you a check from his law firm’s trust account. The identity of the lawyer would be public information, but the lawyer would have no duty (or ability) to disclose the identity of her client without the client’s consent. That is probably the best solution, but the donor could also just order the warm-ups himself and deliver them to you in person in a dark alley after school.
Before you call your Secret Santa back, Legal Mailbag must bring another issue to your attention. It appears that this donation is earmarked for the Boys Basketball team, and that could create a problem under Title IX. Since public schools receive federal funds, they are subject to the Title IX requirement that female and male students are treated equitably as to facilities, equipment, and the like. In explaining obligations under Title IX, the United States Department of Justice addressed the issue in summary fashion as follows:
The regulations go on to provide that a recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal opportunity for members of both sexes. A number of factors are set forth to determine equality of opportunity including but not limited to the provision of equipment, scheduling of games and practice time, travel and per diem allowances, assignment and compensation of coaches, provision of locker rooms, provision of medical and training facilities, provision of housing and dining facilities and publicity. See 65 Fed. Reg. 52873 – 52874.
United States Department of Justice, Title IX Manual (updated September 23, 2023). Given these requirements, purchasing fancy warm-ups for the members of the Boys Basketball team but not for the members of the Girls Basketball team could create a significant Title IX issue.
Legal Mailbag knows that the funds for these warm-ups would come from a private donor. However, once a public school district receives private funds as a donation, the district’s use of those funds becomes subject to Title IX requirements. One appellate court described this rule as follows:
More importantly, however, a public university cannot avoid its legal obligations by substituting funds from private sources for funds from tax revenues. Once a university receives a monetary donation, the funds become public money, subject to Title IX’s legal obligations in their disbursement. As the District Court properly explained, outside funding is not a defense for “a university which provides more than substantially proportionate athletic opportunity to one gender in violation of Title IX.” Chalenor v. Univ. of N.D., No. 2-99cv-170, slip op. at 7 (Aug. 22, 2000) (reproduced at App. 113). Thus, the District Court correctly concluded: “A school may not skirt the requirement of providing both sexes equal opportunity in athletic programs by providing one sex more than substantially proportionate opportunity through the guise of ‘outside funding.’ ” Chalenor, No. 2-99cv-170, slip op. at 8. The University had no obligation to accept the donation, and, even if it had, disbursement of the funds still would have been subject to the strictures of Title IX. (Emphasis added).
Chalenor v. University of North Dakota, 291 F.3d 1042 (8th Cir. 2002). Thus, even though these funds will come from an outside source, Title IX requirements will still apply to their expenditure.
All is not lost here, of course. Legal Mailbag suggests that you share this information with your Secret Santa and ask him either to dig a little deeper into his pockets and fund similar fancy warm-ups for the girls’ team. Alternatively, perhaps he can scale back his gift to provide just the warm-up jackets, again, however, to both the boys and girls teams. It is the perfect time of the year to ask. Happy holidays!