NCAA Gender Equity & Title IX Janet Judge, Sports Law Associates, Inc. Karen Morrison, Director, NCAA Gender Inclusion [email protected] History Participation.

NCAA Gender Equity & Title IX

Janet Judge, Sports Law Associates, Inc.

Karen Morrison, Director, NCAA Gender Inclusion

[email protected]

HistoryParticipationFinancial Aid

What is Gender Equity?

An athletics program can be considered gender equitable when the participants in both the men's and women's sports programs would accept as fair and equitable the overall program of the other gender.

No individual should be discriminated against on the basis of gender, institutionally or nationally, in intercollegiate athletics. 

NCAA Gender Equity Task Force

NCAA Gender Equity Directives

NCAA Mission and Strategic Plan

NCAA Constitution/Bylaws

NCAA Inclusion Initiative

Senior Woman Administrator Designation

NCAA Financial Reporting System

Committee on Women’s Athletics

Emerging Sports for Women

Gender Equity Planning

NCAAInclusion Initiative

Strategic ApproachCreates an environment --o Recognizes and values talents, skills and perspectives o Uses these attributes to reach academic and organizational

objectives.

Inclusion will become our climate (what you feel) while diversity is our measuring post (what you see).

Bifurcated focus.o Pipelineo Culture

Policy development that promotes inclusive cultures Presidential leadership Connecting with like-minded Affiliates & Internal leadership Internal Practice

CWA Activity

Emerging Sports program changes

Woman of the Year Award

Resources – o Staying in Boundso Transgender SA Participationo Pregnant & Parenting SA Toolkit

Education & Professional Development NCAA Gender Equity Forum NCAA GE Manual and online resource center

Perceived Barriers and SWA Research

NCAA workLife Balance Initiative & Be Well

Title IX

What is Title IX?

"No person in the United States shall, on the basis of sex,

-- be excluded from participation in,

-- be denied the benefits of, or -- be subjected to discrimination

under any education program or activity receiving Federal financial assistance."

Sources of Law

U.S. Constitution

Statutes

Regulations

Policy Material

Case Law

Secondary Sources

Who Interprets & Enforces the Law?

The US Department of Education/Office for Civil Rights Develops and implements Regulations Manages Complaints Investigation & Enforcement Education 12 Regional Offices

US Court system – federal or state law Binding in that jurisdiction

Quick History The 1970’s

Passed in 1972 -- Compliance Date of 1978

o Multiple Attempts to Weaken the law in Committee Fail

o Assigned to Department of Education/OCR

32,000 160,000

The 1980’s

Suspended Operation 1984-1988 – Grove City v. Bell

Civil Rights Restoration Act of 1988

170,00074,000

The 1990’s• Courts Find a Private Right of Action & Monetary Damages for

Intentional Violations

• Cohen v. Brown University – key case

• ’96 and ’98 Clarification Letters Issued

• ‘96 EADA – federal disclosure

96,000 186,000

2000+‘02 Commission on Opportunity in Athletics

o ’03 Further Clarification & ’05 Clarification Battle

Retaliation Supreme Court Decision – ’05

2010 OCR Clarifications

249,000186,000

Athletics Compliance Areas

Sexual Harassment Generally

Title IX campus Coordinator

Athletics Specifico Participation

o Financial Aid

o Treatment of student-athletes

Plus – EADA & Fundraising

Title IX regulations require schools to

Designate a Title IX Coordinator to

Adopt and disseminate a nondiscrimination policy

Put grievance procedures in place to address complaints of discrimination

2004 OCR “Dear Colleague” Letter

This is a campus-wide requirement. The role is usually fulfilled by someone in the Human Resources

Title IX Participation

Who Counts as an OCR “Participant”? Three ways of counting – Title IX participation analysis; EADA; & Financial Aid

Receives institutionally-sponsored support normally provided to athletes competing at the institution, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport’s season; and

Participates in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season; and

Is listed on the eligibility or squad lists; or

Who, because of injury, cannot meet a, b, or c above but who continues to receive financial aid on the basis of athletic ability.

Participant

For purposes of participation analysis – count every spot occupied on any team.

Multi-sport athletes count one time for each sport they play.

Schools should document all special cases

For purposes of financial aid analysis, count student-athletes once.

What is a Sport for OCR Purposes?• Team selection based upon objective factors … ability

• Defined season

• Coaching, recruitment, budget, tryouts and eligibility, length and number of practice sessions and competitive opportunities

• Administered by the athletics department

• Primary purpose of the activity is athletics competition.

The OCR has stated that it may also consider the following:

• What do knowledgeable organizations say?

• Recognized by the conference & national intercollegiate athletics associations?

• National and conference championships exist?

• National or conference rule books or manuals?

• National or conference regulation of officials & standardized criteria upon which the competition may be judged?

• Participants receive scholarships & athletics varsity awards

• 2008 OCR Guidance re Athletic Activities

• 2010 Quinnipiac lawsuit & OCR amicus brief

Equitable Participation Opportunities 

Any one part of the Three Prong Test:

Prong One: Substantial proportionality

Prong Two: History and continuing practice of program expansion

Prong Three: Fully and effectively accommodate interests and abilities

Fulltime Duplicated Undergraduates Student-Athletes

Substantial Proportionality

What about Roster Management?

Managing team sizes by setting floors and ceiling targets

Possible Issues:o Beware Day-after 1st competition changeso Floors set, but resources not provided

• Cases to note: o Choike v. Slippery Rock Univ 2006o Beidiger v. Quinnipiac University 2010

o Mansourian v. UC-Davis in progress

Prong 2 -- History and Continuing Practice of Program Expansion

History• Record of adding intercollegiate teams by sex• Record of upgrading teams to intercollegiate status by sex• Record of increasing number of participants of under-represented sex• Affirmative responses to requests to add or elevate sports 

Continuing Practice• Current implementation of a policy/procedure for requesting the addition of sports (includes elevation)• Effective communication• Current implementation of a plan/program responsive to developing interests & abilities• Demonstrated efforts to monitor developing interests & abilities (and timely reaction to the results)

Cutting Sports

Cutting a Viable Women’s team • Must immediately meet Proportionality

Cutting a men’s team• Disfavored practice• Does not help with Prong 2

Prong 3 – Fully and Effectively Meeting Interests & Abilities

Is there Unmet Interest?

Is there sufficient ability to sustain a team in the sport?

Is there a reasonable expectation of competition for the team?

OCR will evaluate:A. Nondiscriminatory methods for

assessing interest and ability

B. Whether a viable team was eliminated

C. Multiple indicators of Interest and of Ability

Unmet Interest & Ability

D.How Often?• Previous assessment capture interests & abilities

of students & admitted students?

• Changes in demographics or student population (OCR footnote – in a typical 4-year school, the student body changes significantly each year)

• Whether there have been complaints regarding lack of opportunity or requests to add new teams

• Plus – If the last time you checked, you were close to having the minimum number of players needed to sustain a team…keep checking.

Unmet Interest & Abilities (continued)

Third Prong Recommendations Effective, ongoing procedures – collect, maintain, analyze information on

interests & abilities

Easily understood and widely disseminated policies & procedures for receiving & responding to requests for teams. Must go to students (new & existing), coaches and employees.

Ongoing reviews of the school’s club or intramural sport participation levels;

Keep current on high school sports, amateur sports association and community sports leagues data in your geographical recruiting area;

Track the interscholastic athletics participation of admitted students; and

Conduct interviews and meetings with students, admitted students, coaches, administrators and others regarding interest in particular sports.

Get your campus Title IX Coordinator and Title IX Committee involved

2010 Dear Colleague…survey advice

A survey alone is not enough

OCR will evaluate your surveyo Content

Purpose statement List all sports; allow room to add

sports & comments Ask for contact information

o Target Population All FT undergrads & admitted of the

underrepresented sex. Census avoids sampling

shortcomings

2010 Dear Colleague…survey advice cont

• Responses – Rates & Non-responseso Try a mandatory activity, like course registrationo Give time to complete latero Widely publicize & use multiple mechanismso Email - Accuracyo Confirm lack of interest before exiting

• Confidentiality

• Frequency – other factors include size of previous assessment and response rate

Minimum # needed for competition

Opinions of AD’s & Coaches

Typical team sizes - NCAA/Conference

OCR May consider:o Rate of substitutionso Variety of skill setso Minimum for practice

How many are sufficient to Sustain a Team?

Reasonable expectation of competition -- Normal Competitive Region

o Who do you compete againsto What’s offered in your geographic regiono School may be required to actively take steps to

encourage sponsorship, if its competitive region has historically low numbers

Financial AidFinancial Aid

Title IX Athletics Financial Aid

• Compare the Scholarship Dollars Spent (not Budgeted) --Current Athletic Program

• Count All Athletes One Time Only• Considerations

o EADA -- Summer & Exhausted Aid includedo Tuition Waivers o Non-discrimination

policy

•Non-Discriminatory VARIANCE…

o Program developmento In-state and out-of-state tuitiono Unexpected fluctuations in the participationo Phasing in of athletics scholarshipso Unexpected last-minute decisions by scholarship athletes not to enroll

Title IX Treatment Issues

Other Benefits & Opportunities

AKA “The Laundry List” Equipment and Supplies Scheduling Travel & Per Diem Tutors Coaches Facilities Medical & Training Housing Publicity Support Services Recruiting

Equipment and SuppliesQuality

Suitability

Amount

Maintenance & Replacement

Availability

Scheduling of Games & Practice Times

Number of Competitive Events

Practice Time and Length

Time of Day Issues

Pre and Post Season Competition

Travel & Per Diem AllowanceType of Transportation

Where Do the Athletes Stay?

Length of Stay Before After

Per Diem Allowances

Dining Arrangements

Academic TutorsOpportunity to Receive

Academic Tutoring Availability Procedures

Assignment and Compensation of Tutors Tutor Qualifications Tutor Experience Rate of Pay Relative Workload

CoachesOpportunity to Receive Coaching

Full-Time Coaches Part-Time and Assistant Coaches Graduate Assistants

Assignment Training, Experience & Other Professional Standing

Compensation Rate Duration of Contracts & Renewal Experience Nature of Coaching Duties Working Conditions Other Terms & Conditions - Employment

FacilitiesLocker Rooms

Availability Quality

Practice & Competitive Facilities Quality & Availability Exclusive Use Maintenance Preparation

Medical & Training ServicesAvailability of Medical Personnel

Practice and Games Travel Issues

Health, Accident & Injury Insurance

Availability & Qualifications of Certified Athletic Trainers Practice and Games Travel Issues

Availability & Quality of: Weight Facilities Training Facilities Conditioning Facilities

Housing & Dining ServicesIs Student Athlete Housing Provided?

If it is, are there Special Services? Laundry Parking Cleaning Service Training Table

PublicityAvailability &

Quality of Personnel

Access to other Publicity Sources

Quantity & Quality of Publications and other Promotional Materials

Travel Issues

Support ServicesAmount of Administrative Assistance

Amount of Secretarial & Clerical Assistance

Office Space

Computers, Phones, Office Machines

Recruiting

Provision of Substantially Equal Opportunities to Recruit

Provision of Financial and Other Resources

Whether Differences in Benefits, Opportunities, and Treatment Afforded Prospective Student Athletes have a Disproportionately Limiting Effect on Recruitment

Permissible DifferencesUnique aspects of particular sports are recognized:

Recruitment Event Management Costs Equipment Publicity Issues Compensation Issues Medical Issues

Are the Disparities Significant?Difference, on the Basis of Sex

in benefits or services that has a . . .negative impact on athletes of one sex . . .when compared with benefits or services available to

athletes of the other sex.

Significant Disparity: So Substantial as to Deny Equal Opportunity

to Athletes of One Sex.

Disparities that are not Significant. . .Evidence to be Evaluated on a case by case basis.

Emerging Sports

On the List Equestrian (D-I & II)

Rugby

Sand Volleyball (D-I & II)

InterestedTriathlon

Stunt

Acrobatics & Tumbling

??

Home ► Governance ► Inclusion ► Gender Equity and Title IX

Finding NCAA ResourcesFinding NCAA Resources

NCAA InformationKey Contact: Karen Morrison [email protected]

Director of Gender Inclusion

NCAA Gender Equity Homepage: www.ncaa.org/gender_equity

Home ► Governance► Office of Inclusion ► Gender Equity

Has information about – Title IX – www.ncaa.org/title_ix Professional development programs for women NCAA Gender Equity Manual Senior Woman Administrators Emerging Sports for Women Woman of the Year Award Research and Best Practices Committee on Women’s Athletics Gender Equity Planning