Presentation on theme: "NCAA Gender Equity & Title IX"— Presentation transcript:
1NCAA Gender Equity & Title IX HistoryParticipationFinancial AidJanet Judge, Sports Law Associates, Inc.Karen Morrison, Director,NCAA Gender InclusionWelcome & Structure of the Day’s Agenda
2What 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
3NCAA Gender Equity Directives NCAA Mission and Strategic PlanNCAA Constitution/BylawsNCAA Inclusion InitiativeSenior Woman Administrator DesignationNCAA Financial Reporting SystemCommittee on Women’s AthleticsEmerging Sports for WomenGender Equity PlanningThe 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 HSAAMichigan HSAAIndiana HSAAOCR letter to D-II GLIAC
5Strategic Approach Creates an environment -- Recognizes and values talents, skills and perspectivesUses 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.PipelineCulturePolicy development that promotes inclusive culturesPresidential leadershipConnecting with like-minded Affiliates & Internal leadershipInternal Practice
6CWA Activity Emerging Sports program changes Woman of the Year Award Resources –Staying in BoundsTransgender SA ParticipationPregnant & Parenting SA ToolkitEducation & Professional DevelopmentNCAA Gender Equity ForumNCAA GE Manual and online resource centerPerceived Barriers and SWA ResearchNCAA workLife Balance Initiative & Be Well
8What 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 institutionsTitle VI – prohibited discrimination in federally assisted programs, but only on the basis of race, color and national origin, not sexEqual Pay Act – prohibited salary discrimination on the basis of sex, but not for professional and administrative employees, like professorsThe 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.
9Sources of Law U.S. Constitution Statutes Regulations Policy Material Case LawSecondary Sources
10Who Interprets & Enforces the Law? The US Department of Education/Office for Civil RightsDevelops and implements RegulationsManages ComplaintsInvestigation & EnforcementEducation12 Regional OfficesUS Court system – federal or state lawBinding in that jurisdiction
11Quick History The 1970’s Passed in 1972 -- Compliance Date of 1978 Multiple Attempts to Weaken the law in Committee FailAssigned to Department of Education/OCRNCAA Lawsuit attempting to restrict application to athletics – Dismissed in 1978.1979 – Key OCR Regulations for athletics issuedParticipation and sponsorship go UP for Men and Women since Title IX became law; including the last two years.32,000160,000
12The 1980’s Suspended Operation 1984-1988 – Grove City v. Bell Civil Rights Restoration Act of 1988NCAA Women’s Championships & AIAW –74,000170,000
13The 1990’sCourts Find a Private Right of Action & Monetary Damages for Intentional ViolationsCohen v. Brown University – key case’96 and ’98 Clarification Letters Issued‘96 EADA – federal disclosure96,000186,000
142000+ ‘02 Commission on Opportunity in Athletics ’03 Further Clarification & ’05 Clarification BattleRetaliation Supreme Court Decision – ’052010 OCR Clarifications186,000249,000
15Athletics Compliance Areas Sexual Harassment GenerallyTitle IX campus CoordinatorAthletics SpecificParticipationFinancial AidTreatment of student-athletesPlus – EADA & FundraisingUnder the EADA, 20 U.S.C. § 1092(g), co-educational universities receiving federalfunding and participating in intercollegiate athletics must report certain data, including studentenrollment and student athletic participation, annually to ED. The EADA, however, was notpromulgated under Title IX, and the two statutes serve different purposes. Thus, while OCRmay examine EADA numbers, it does not rely on EADA data to determine if a school is incompliance with Title IX. Instead, OCR makes an independent determination of the number ofathletic participation opportunities and evaluates the data related to the factors outlined above todetermine if the university is offering genuine opportunities.
16Title IX regulations require schools to Designate a Title IX Coordinator toAdopt and disseminate a nondiscrimination policyPut grievance procedures in place to address complaints of discrimination2004 OCR “Dear Colleague” LetterThis is a campus-wide requirement. The role is usually fulfilled by someone in the Human Resources
18Who Counts as an OCR “Participant” Who Counts as an OCR “Participant”? Three ways of counting – Title IX participation analysis; EADA; & Financial AidReceives 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; andParticipates in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season; andIs listed on the eligibility or squad lists; orWho, 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 competeon teams sponsored by the institution even though the team may be required to raise its ownoperating funds, and (iii) athletes who practice but do not compete ClarificationEADA: 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; andPractice 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.
19ParticipantFor 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 casesFor 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 individualparticipants.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.
20What is a Sport for OCR Purposes? Team selection based upon objective factors … abilityDefined seasonCoaching, recruitment, budget, tryouts and eligibility, length and number of practice sessions and competitive opportunitiesAdministered by the athletics departmentPrimary 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 awards1. Program Structure and Administration – Consistent with other varsity sportsA. Operating budget, support services and coaching staff are administered by athletics department; andB. 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; and3. 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; andD. 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 participationin post-season competition is dependent on or related to regular season results in a manner consistent with established varsity sports; and4. Selection of teams/participants is based on factors related primarily to athletic ability.
212008 OCR Guidance re Athletic Activities 2010 Quinnipiac lawsuit & OCR amicus brief2008 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 complianceAccording 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
22Equitable Participation Opportunities Any one part of the Three Prong Test:Prong One: Substantial proportionalityProng Two: History and continuing practice of program expansionProng Three: Fully and effectively accommodate interests and abilitiesSet out in the 1979 Policy Interpretation1996 Clarification of Intercollegiate Athletics Policy Guidance: The Three Part Test
23Fulltime Duplicated Undergraduates Student-Athletes Substantial ProportionalityFulltime Duplicated Undergraduates Student-AthletesOCR 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; andan 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%?
24What about Roster Management? Managing team sizes by setting floors and ceiling targetsPossible Issues:Beware Day-after 1st competition changesFloors set, but resources not providedCases to note:Choike v. Slippery Rock Univ 2006Beidiger v. Quinnipiac University 2010Mansourian v. UC-Davis in progressSlippery 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.
25Prong 2 -- History and Continuing Practice of Program Expansion Record of adding intercollegiate teams by sexRecord of upgrading teams to intercollegiate status by sexRecord of increasing number of participants of under-represented sexAffirmative responses to requests to add or elevate sports Continuing PracticeCurrent implementation of a policy/procedure for requesting the addition of sports (includes elevation)Effective communicationCurrent implementation of a plan/program responsive to developing interests & abilitiesDemonstrated 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.-
26Cutting Sports Cutting a Viable Women’s team Must immediately meet ProportionalityCutting a men’s teamDisfavored practiceDoes not help withProng 2
27Prong 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.
28Unmet Interest & Ability OCR will evaluate:Nondiscriminatory methods for assessing interest and abilityWhether a viable team was eliminatedMultiple indicators of Interest and of AbilityOCR 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; andparticipation 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 & abilitiesMethods do not disadvantage underrepresented sexAbility measure – takes into account team performance recordsMethods are responsive to expressed interestSchool would have to overcome presumption of noncompliance with strong evidence that interest, ability or competition no longer existed for the eliminated teamThe 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; andIf 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 consideredTryouts/observations
29Unmet 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 teamsPlus – If the last time you checked, you were close to having the minimum number of players needed to sustain a team…keep checking.
30Third Prong Recommendations Effective, ongoing procedures – collect, maintain, analyze information on interests & abilitiesEasily 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; andConduct 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 involvedOCR – Ability is Potential. Can they contribute to a team
312010 Dear Colleague…survey advice A survey alone is not enoughOCR will evaluate your surveyContentPurpose statementList all sports; allow room to add sports & commentsAsk for contact informationTarget PopulationAll FT undergrads & admitted of the underrepresented sex.Census avoids sampling shortcomings
322010 Dear Colleague…survey advice cont Responses – Rates & Non-responsesTry a mandatory activity, like course registrationGive time to complete laterWidely publicize & use multiple mechanisms- AccuracyConfirm lack of interest before exitingConfidentialityFrequency – other factors include size of previous assessment and response rate
33How many are sufficient to Sustain a Team? Minimum # needed for competitionOpinions of AD’s & CoachesTypical team sizes - NCAA/ConferenceOCR May consider:Rate of substitutionsVariety of skill setsMinimum for practice
34Reasonable expectation of competition -- Normal Competitive Region Who do you compete againstWhat’s offered in your geographic regionSchool may be required to actively take steps to encourage sponsorship, if its competitive region has historically low numbersDocument efforts
36Title IX Athletics Financial Aid Compare the Scholarship Dollars Spent (not Budgeted) -- Current Athletic ProgramCount All Athletes One Time OnlyConsiderationsEADA -- Summer & Exhausted Aid includedTuition WaiversNon-discriminationpolicySummer 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.
37Women get 39-41% of Athletics Aid Within 1% of SA Unduplicated %If 60 % SA’s areMenIf 40% of SA’s are WomenMen get 59-61% ofAthletics AidWomen get 39-41% of Athletics AidIf 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
38Non-Discriminatory Variance… Program developmentIn-state and out-of-state tuitionUnexpected fluctuations in the participationPhasing in of athletics scholarshipsUnexpected last-minute decisions by scholarship athletes not to enrollpursuant to a plan to increase participation
47Medical & Training Services Availability of Medical PersonnelPractice and GamesTravel IssuesHealth, Accident & Injury InsuranceAvailability & Qualifications of Certified Athletic TrainersAvailability & Quality of:Weight FacilitiesTraining FacilitiesConditioning Facilities
48Housing & Dining Services Is Student Athlete Housing Provided?If it is, are there Special Services?LaundryParkingCleaning ServiceTraining Table
49Publicity Availability & Quality of Personnel Access to other Publicity SourcesQuantity & Quality of Publications and other Promotional MaterialsTravel Issues
50Support Services Amount of Administrative Assistance Amount of Secretarial & Clerical AssistanceOffice SpaceComputers, Phones, Office Machines
51Recruiting Provision of Substantially Equal Opportunities to Recruit Provision of Financial and Other ResourcesWhether Differences in Benefits, Opportunities, and Treatment Afforded Prospective Student Athletes have a Disproportionately Limiting Effect on Recruitment
52Permissible Differences Unique aspects of particular sports are recognized:RecruitmentEvent Management CostsEquipmentPublicity IssuesCompensation IssuesMedical Issues
53Are the Disparities Significant? Difference, on the Basis of Sexin 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.
59NCAA Information Key Contact: Karen Morrison email@example.com Director of Gender InclusionNCAA Gender Equity Homepage:Home ► Governance► Office of Inclusion ► Gender EquityHas information about –Title IX –Professional development programs for womenNCAA Gender Equity ManualSenior Woman AdministratorsEmerging Sports for WomenWoman of the Year AwardResearch and Best PracticesCommittee on Women’s AthleticsGender Equity Planning