1. NCAA Gender Equity & Title IX
History
Participation
Financial Aid
Janet Judge, Sports Law Associates, Inc.
Karen Morrison, Director,
NCAA Gender Inclusion
Welcome & Structure of the Day’s Agenda

2. 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

3. 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
The NCAA as an Association is not subject to Title IX regulations, though it receives dues from the member institutions, which receive federal funds and are subject to Title IX. National Collegiate Athletic Association v. R.M. Smith, 525 U.S. 459 (1999)
Recent cases:
Florida HSAA
Michigan HSAA
Indiana HSAA
OCR letter to D-II GLIAC

4. NCAA Inclusion Initiative

5. Strategic Approach Creates an environment --
Recognizes and values talents, skills and perspectives
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.
Pipeline
Culture
Policy development that promotes inclusive cultures
Presidential leadership
Connecting with like-minded Affiliates & Internal leadership
Internal Practice

6. CWA Activity Emerging Sports program changes Woman of the Year Award
Resources –
Staying in Bounds
Transgender SA Participation
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

7. Title IX

8. 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."
Title VII of Civil Rights Act – prohibited discrimination in Employment on the basis of race, color, religion, national origin and sex, but excluded educational institutions
Title VI – prohibited discrimination in federally assisted programs, but only on the basis of race, color and national origin, not sex
Equal Pay Act – prohibited salary discrimination on the basis of sex, but not for professional and administrative employees, like professors
The Fourteenth Amendment to the Constitution assures all persons "equal protection of the laws," but before Title IX no case concerning discrimination against women in education had ever been decided in favor of women by the Supreme Court.

9. Sources of Law U.S. Constitution Statutes Regulations Policy Material
Case Law
Secondary Sources

10. 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

11. Quick History The 1970’s Passed in 1972 -- Compliance Date of 1978
Multiple Attempts to Weaken the law in Committee Fail
Assigned to Department of Education/OCR
NCAA Lawsuit attempting to restrict application to athletics – Dismissed in 1978.
1979 – Key OCR Regulations for athletics issued
Participation and sponsorship go UP for Men and Women since Title IX became law; including the last two years.
32,000
160,000

12. The 1980’s Suspended Operation 1984-1988 – Grove City v. Bell
Civil Rights Restoration Act of 1988
NCAA Women’s Championships & AIAW –
74,000
170,000

13. 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

14. 2000+ ‘02 Commission on Opportunity in Athletics
’03 Further Clarification & ’05 Clarification Battle
Retaliation Supreme Court Decision – ’05
2010 OCR Clarifications
186,000
249,000

15. Athletics Compliance Areas
Sexual Harassment Generally
Title IX campus Coordinator
Athletics Specific
Participation
Financial Aid
Treatment of student-athletes
Plus – EADA & Fundraising
Under the EADA, 20 U.S.C. § 1092(g), co-educational universities receiving federal
funding and participating in intercollegiate athletics must report certain data, including student
enrollment and student athletic participation, annually to ED. The EADA, however, was not
promulgated under Title IX, and the two statutes serve different purposes. Thus, while OCR
may examine EADA numbers, it does not rely on EADA data to determine if a school is in
compliance with Title IX. Instead, OCR makes an independent determination of the number of
athletic participation opportunities and evaluates the data related to the factors outlined above to
determine if the university is offering genuine opportunities.

16. 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

17. Title IX Participation

18. Who Counts as an OCR “Participant”
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.
1979 Policy Interp
“Participants” also include (i) walk-on athletes, (ii) athletes who compete
on teams sponsored by the institution even though the team may be required to raise its own
operating funds, and (iii) athletes who practice but do not compete Clarification
EADA: Participant is defined to include students who, as of the day of a varsity team’s first scheduled contest:
Are listed by the institution on the varsity team’s roster;
Receive athletically related student aid; and
Practice with the varsity team and receive coaching from varsity coach(es).
Any student who satisfies one or more of the above criteria is a participant. This includes a student on a team the institution designates or defines as junior varsity or freshman or a student withheld from competition to preserve eligibility (red shirt) or for academic, medical or other reasons.

19. 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.
NYT article – roster management.
Miller v Cincinnati – confirms counting multi-sport participants every time they are on a sport roster. Plaintiffs argued the court should use the unduplicated count of student-athletes, counting participants only once, no matter their participation. Plaintiffs asserted that the university also incorrectly reported the number of male and female athletes by counting indoor TF, outdoor TF, and CC as separate sports.
However, the court deferred to DOE regulations instructing schools to count participation opportunities rather than individual
participants.
UC-Davis – circuit after NCAA amicus brief removed statement that indoor SA didn’t count as duplicate participants because all the same athletes were on the outdoor team.

20. 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
1. Program Structure and Administration – Consistent with other varsity sports
A. Operating budget, support services and coaching staff are administered by athletics department; and
B. Participants are eligible to receive athletic scholarships and athletic awards (e.g., varsity awards);
2. Team Preparation and Competition –
A. Practice opportunities (e.g., number, length and quality)
B. Regular season competitive opportunities - quantitatively and/or qualitatively; Team competes against intercollegiate or interscholastic varsity opponents;
When analyzing this factor, the following may be taken into consideration:
1. Number of competitions and length of play are predetermined by a governing athletics organization, an athletic conference, or a consortium of institutions;
2. Competitive schedule reflects the abilities of the team; and
3. Defined season; whether the season is determined by a governing athletics organization, an athletic conference, or a consortium.
C. Opportunity for student athletes to engage in the pre-season and/or post-season competition , e.g., whether state, national and/or conference championships exist for the activity; and
D. 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.
1. 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;
2. Whether resources for the activity (e.g., practice and competition schedules, coaching staff) are based on the competitive needs of the team;
3. 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
4. Selection of teams/participants is based on factors related primarily to athletic ability.

21. 2008 OCR Guidance re Athletic Activities
2010 Quinnipiac lawsuit & OCR amicus brief
2008 Letter - 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
According to the text, if a sport is recognized by an intercollegiate athletic organization and the organization has in place the factors addressed by the OCR, the agency will “presume” that the sport can be counted for purposes of Title IX. The presumption may be challenged by offering evidence to show that the sport as implemented does not meet the OCR elements set forth below. Determinations are fact specific and are made on a case-by-case basis. Even then, institutions may seek reconsideration of the decision in light of additional information “related to the activity’s structure, administration, team preparation and competition.”
OCR Amicus in Quinnipiac

22. 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
Set out in the 1979 Policy Interpretation
1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three Part Test

23. Fulltime Duplicated Undergraduates Student-Athletes
Substantial Proportionality
Fulltime Duplicated Undergraduates Student-Athletes
OCR cites the following examples of substantial proportionality:
exact proportionality;
a disparity of one percent caused by an increase in the current year’s enrollment after a year of exact proportionality; and
an institution’s pursuit of proportionality over a five-year period and in the final year – when proportionality would otherwise have been reached – enrollment of the under-represented sex increased so that there was a two percent disparity.
UC-Davis – 1.5%
Quinnipiac – 3.85%?

24. What about Roster Management?
Managing team sizes by setting floors and ceiling targets
Possible Issues:
Beware Day-after 1st competition changes
Floors set, but resources not provided
Cases to note:
Choike v. Slippery Rock Univ 2006
Beidiger v. Quinnipiac University 2010
Mansourian v. UC-Davis in progress
Slippery Rock - In short, Prong One cannot be satisfied by numbers “viewed in a vacuum,” but rather only when athletic participation opportunities are meaningful. Choike v. Slippery Rock Univ., As this court has noted, “what matters for purposes of complying with Title IX in spirit and in fact” is not equality in numbers alone, but rather the corresponding genuine athletic participation opportunities.
Quinnipiac - setting a floor for rosters is, in and of itself, an unacceptable practice for achieving substantial proportionality when, as is the case here, there is evidence that women’s teams are “not actually providing genuine participation opportunities for all roster members.” The court cited to the credible testimony presented by Plaintiffs that the Quinnipiac athletics department set unsustainably large women’s team sizes, well above average squad sizes and the coaches’ needs, and did not provide commensurate increases in funding, staff, equipment, and other benefits that are an inextricable part of a genuine participation opportunity.
When there is reason to doubt that the reported numbers are an accurate reflection of genuine athletic participation opportunities, there is reason to “look behind those numbers” and examine the quality of opportunities being offered.

25. Prong 2 -- History and Continuing Practice of Program Expansion
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)
This increase in percentage participation cannot be achieved through cancellation of men’s programs, manipulation of participation opportunities for men and women on existing teams, or upgrades to existing women’s varsity teams, but rather must be the result of adding new programs for women. Second, the expansion must be continuing. In short, this part of the test seeks to determine what the institution has done to expand opportunity for the underrepresented sex lately. -

26. 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

27. 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?
The OCR and courts have held that the athletics ability analysis should focus on whether athletes can play the sport and not whether they will be successful.
Unless there exists a sport (or sports) for the underrepresented sex for which all three of the following conditions are met: (1) unmet interest sufficient to sustain a varsity team in the sport(s); (2) sufficient ability to sustain an intercollegiate team in the sport(s); and (3) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school’s normal competitive region.

28. Unmet Interest & Ability
OCR will evaluate:
Nondiscriminatory methods for assessing interest and ability
Whether a viable team was eliminated
Multiple indicators of Interest and of Ability
OCR will determine whether there is sufficient unmet interest among the institution's students who are members of the underrepresented sex to sustain an intercollegiate team. OCR will look for interest by the underrepresented sex as expressed through the following indicators, among others:
requests by students and admitted students that a particular sport be added;
requests that an existing club sport be elevated to intercollegiate team status;
participation in particular club or intramural sports;
interviews with students, admitted students, coaches, administrators and others regarding interest in particular sports;
results of questionnaires of students and admitted students regarding interests in particular sports; and
participation in particular in interscholastic sports by admitted students.
In addition, OCR will look at participation rates in sports in high schools, amateur athletic associations, and community sports leagues that operate in areas from which the institution draws its students in order to ascertain likely interest and ability of its students and admitted students in particular sport(s).5 For example, where OCR's investigation finds that a substantial number of high schools from the relevant region offer a particular sport which the institution does not offer for the underrepresented sex, OCR will ask the institution to provide a basis for any assertion that its students and admitted students are not interested in playing that sport. OCR may also interview students, admitted students, coaches, and others regarding interest in that sport.
Take into consideration nationally increasing level of interests & abilities
Methods do not disadvantage underrepresented sex
Ability measure – takes into account team performance records
Methods are responsive to expressed interest
School would have to overcome presumption of noncompliance with strong evidence that interest, ability or competition no longer existed for the eliminated team
The athletics experience and accomplishments in interscholastic sports and Club or intramural competition;
Opinions of coaches, administrators and athletes at the school as to whether interested students and admitted students have the potential to sustain a varsity team; and
If the team has previously competed at the club or intramural level, whether the competitive experience indicates that team has potential to sustain an intercollegiate team.
Plus:
Participation in other sports that might demonstrate skills or abilities fundamental to the sport being considered
Tryouts/observations

29. Unmet Interest & Abilities (continued)
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.

30. 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
OCR – Ability is Potential. Can they contribute to a team

31. 2010 Dear Colleague…survey advice
A survey alone is not enough
OCR will evaluate your survey
Content
Purpose statement
List all sports; allow room to add sports & comments
Ask for contact information
Target Population
All FT undergrads & admitted of the underrepresented sex.
Census avoids sampling shortcomings

32. 2010 Dear Colleague…survey advice cont
Responses – Rates & Non-responses
Try a mandatory activity, like course registration
Give time to complete later
Widely publicize & use multiple mechanisms
- Accuracy
Confirm lack of interest before exiting
Confidentiality
Frequency – other factors include size of previous assessment and response rate

33. How many are sufficient to Sustain a Team?
Minimum # needed for competition
Opinions of AD’s & Coaches
Typical team sizes - NCAA/Conference
OCR May consider:
Rate of substitutions
Variety of skill sets
Minimum for practice

34. Reasonable expectation of competition -- Normal Competitive Region
Who do you compete against
What’s offered in your geographic region
School may be required to actively take steps to encourage sponsorship, if its competitive region has historically low numbers
Document efforts

35. Financial Aid

36. Title IX Athletics Financial Aid
Compare the Scholarship Dollars Spent (not Budgeted) -- Current Athletic Program
Count All Athletes One Time Only
Considerations
EADA -- Summer & Exhausted Aid included
Tuition Waivers
Non-discrimination
policy
Summer aid and aid awarded to student-athletes who have exhausted their eligibility generally should not be included in analysis for Title IX purposes, even though summer aid must be reported on EADA forms.
EADA Athletically related student aid is aid awarded a student that requires the student to participate in an intercollegiate athletics program. It includes aid awarded to student-athletes who are injured and still receive scholarship assistance as well as fifth-year team members who have exhausted eligibility. Summer aid, too.
schools must include the dollar value of tuition waivers awarded to students if they are awarded on the basis of athletics ability. It is important to include only those dollars awarded on the basis of athletics ability.

37. Women get 39-41% of Athletics Aid
Within 1% of SA Unduplicated %
If 60 % SA’s are
Men
If 40% of SA’s are Women
Men get 59-61% of
Athletics Aid
Women get 39-41% of Athletics Aid
If a college consistently awards a greater number of out-of-state scholarships to men, it may be required to demonstrate that this does not reflect discriminatory recruitment practices. Similarly, if a university asserts the phase-in of scholarships for a new team as a justification for a disparity, the university may be required to demonstrate that the time frame for the phasing-in of scholarships is reasonable in light of college sports practices to aggressively recruit athletes to build start-up teams quickly.
Burden is on the college – you control these distributions

38. Non-Discriminatory Variance…
Program development
In-state and out-of-state tuition
Unexpected fluctuations in the participation
Phasing in of athletics scholarships
Unexpected last-minute decisions by scholarship athletes not to enroll
pursuant to a plan to increase participation

39. Title IX Treatment Issues

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

41. Equipment and Supplies
Quality
Suitability
Amount
Maintenance & Replacement
Availability

42. Scheduling of Games & Practice Times
Number of Competitive Events
Practice Time and Length
Time of Day Issues
Pre and Post Season Competition

43. Travel & Per Diem Allowance
Type of Transportation
Where Do the Athletes Stay?
Length of Stay
Before
After
Per Diem Allowances
Dining Arrangements

44. Academic Tutors Opportunity to Receive Academic Tutoring
Availability
Procedures
Assignment and Compensation of Tutors
Tutor Qualifications
Tutor Experience
Rate of Pay
Relative Workload

45. Coaches Opportunity to Receive Coaching Assignment Compensation
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

46. Facilities Locker Rooms Practice & Competitive Facilities Availability
Quality
Practice & Competitive Facilities
Quality & Availability
Exclusive Use
Maintenance
Preparation

47. Medical & Training Services
Availability of Medical Personnel
Practice and Games
Travel Issues
Health, Accident & Injury Insurance
Availability & Qualifications of Certified Athletic Trainers
Availability & Quality of:
Weight Facilities
Training Facilities
Conditioning Facilities

48. Housing & Dining Services
Is Student Athlete Housing Provided?
If it is, are there Special Services?
Laundry
Parking
Cleaning Service
Training Table

49. Publicity Availability & Quality of Personnel
Access to other Publicity Sources
Quantity & Quality of Publications and other Promotional Materials
Travel Issues

50. Support Services Amount of Administrative Assistance
Amount of Secretarial & Clerical Assistance
Office Space
Computers, Phones, Office Machines

51. 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

52. Permissible Differences
Unique aspects of particular sports are recognized:
Recruitment
Event Management Costs
Equipment
Publicity Issues
Compensation Issues
Medical Issues

53. 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.

54. Emerging Sports

55. On the List Interested Equestrian (D-I & II) Rugby
Sand Volleyball (D-I & II)
Interested
Triathlon
Stunt
Acrobatics & Tumbling ??

56. Home ► Governance ► Inclusion ► Gender Equity and Title IX

57. Finding NCAA Resources

59. NCAA Information Key Contact: Karen Morrison kmorrison@ncaa.org
Director of Gender Inclusion
NCAA Gender Equity Homepage:
Home ► Governance► Office of Inclusion ► Gender Equity
Has information about –
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