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

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Presentation on theme: "NCAA Gender Equity & Title IX Janet Judge, Sports Law Associates, Inc. Karen Morrison, Director, NCAA Gender Inclusion History Participation."— Presentation transcript:

1 NCAA Gender Equity & Title IX Janet Judge, Sports Law Associates, Inc. Karen Morrison, Director, NCAA Gender Inclusion History Participation Financial Aid

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

4 NCAA Inclusion Initiative

5 Strategic Approach Creates 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 Pipeline o 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 – o Staying in Bounds o Transgender SA Participation o 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."

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 o Multiple Attempts to Weaken the law in Committee Fail o Assigned to Department of Education/OCR 32,000160,000

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

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 96,000186,000

14 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

15 Athletics Compliance Areas Sexual Harassment Generally Title IX campus Coordinator Athletics Specific o Participation o Financial Aid o Treatment of student-athletes Plus – EADA & Fundraising

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”? 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.

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.

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

21 2008 OCR Guidance re Athletic Activities 2010 Quinnipiac lawsuit & OCR amicus brief

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

23 Fulltime Duplicated Undergraduates Student-Athletes Substantial Proportionality

24 What about Roster Management? Managing team sizes by setting floors and ceiling targets Possible Issues: o Beware Day-after 1 st competition changes o Floors set, but resources not provided Cases to note: o Choike v. Slippery Rock Univ 2006 o Beidiger v. Quinnipiac University 2010 o Mansourian v. UC-Davis in progress

25 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)

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?

28 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

29 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)

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

31 2010 Dear Colleague…survey advice A survey alone is not enough OCR will evaluate your survey o 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

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

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

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

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 o EADA -- Summer & Exhausted Aid included o Tuition Waivers o Non-discrimination policy

37 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 Within 1% of SA Unduplicated %

38 Non-Discriminatory V ARIANCE … o Program development o In-state and out-of-state tuition o Unexpected fluctuations in the participation o Phasing in of athletics scholarships o Unexpected last-minute decisions by scholarship athletes not to enroll

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 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 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 Practice and Games Travel Issues 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 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 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

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