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NCAA Gender Equity & Title IX

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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
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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