ncaa gender equity & title ix janet judge, sports law associates, inc. karen morrison, director,...
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NCAA Gender Equity & Title IX
Janet Judge, Sports Law Associates, Inc.
Karen Morrison, Director, NCAA Gender Inclusion
HistoryParticipationFinancial Aid
What is Gender Equity?
An athletics program can be considered gender equitable when the participants in both the men's and women's sports programs would accept as fair and equitable the overall program of the other gender.
No individual should be discriminated against on the basis of gender, institutionally or nationally, in intercollegiate athletics.
NCAA Gender Equity Task Force
NCAA Gender Equity Directives
NCAA Mission and Strategic Plan
NCAA Constitution/Bylaws
NCAA Inclusion Initiative
Senior Woman Administrator Designation
NCAA Financial Reporting System
Committee on Women’s Athletics
Emerging Sports for Women
Gender Equity Planning
NCAAInclusion Initiative
Strategic ApproachCreates an environment --o Recognizes and values talents, skills and perspectives o Uses these attributes to reach academic and organizational
objectives.
Inclusion will become our climate (what you feel) while diversity is our measuring post (what you see).
Bifurcated focus.o Pipelineo Culture
Policy development that promotes inclusive cultures Presidential leadership Connecting with like-minded Affiliates & Internal leadership Internal Practice
CWA Activity
Emerging Sports program changes
Woman of the Year Award
Resources – o Staying in Boundso Transgender SA Participationo Pregnant & Parenting SA Toolkit
Education & Professional Development NCAA Gender Equity Forum NCAA GE Manual and online resource center
Perceived Barriers and SWA Research
NCAA workLife Balance Initiative & Be Well
Title IX
What is Title IX?
"No person in the United States shall, on the basis of sex,
-- be excluded from participation in,
-- be denied the benefits of, or -- be subjected to discrimination
under any education program or activity receiving Federal financial assistance."
Sources of Law
U.S. Constitution
Statutes
Regulations
Policy Material
Case Law
Secondary Sources
Who Interprets & Enforces the Law?
The US Department of Education/Office for Civil Rights Develops and implements Regulations Manages Complaints Investigation & Enforcement Education 12 Regional Offices
US Court system – federal or state law Binding in that jurisdiction
Quick History The 1970’s
Passed in 1972 -- Compliance Date of 1978
o Multiple Attempts to Weaken the law in Committee Fail
o Assigned to Department of Education/OCR
32,000 160,000
The 1980’s
Suspended Operation 1984-1988 – Grove City v. Bell
Civil Rights Restoration Act of 1988
170,00074,000
The 1990’s• Courts Find a Private Right of Action & Monetary Damages for
Intentional Violations
• Cohen v. Brown University – key case
• ’96 and ’98 Clarification Letters Issued
• ‘96 EADA – federal disclosure
96,000 186,000
2000+‘02 Commission on Opportunity in Athletics
o ’03 Further Clarification & ’05 Clarification Battle
Retaliation Supreme Court Decision – ’05
2010 OCR Clarifications
249,000186,000
Athletics Compliance Areas
Sexual Harassment Generally
Title IX campus Coordinator
Athletics Specifico Participation
o Financial Aid
o Treatment of student-athletes
Plus – EADA & Fundraising
Title IX regulations require schools to
Designate a Title IX Coordinator to
Adopt and disseminate a nondiscrimination policy
Put grievance procedures in place to address complaints of discrimination
2004 OCR “Dear Colleague” Letter
This is a campus-wide requirement. The role is usually fulfilled by someone in the Human Resources
Title IX Participation
Who Counts as an OCR “Participant”? Three ways of counting – Title IX participation analysis; EADA; & Financial Aid
Receives institutionally-sponsored support normally provided to athletes competing at the institution, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport’s season; and
Participates in organized practice sessions and other team meetings and activities on a regular basis during a sport’s season; and
Is listed on the eligibility or squad lists; or
Who, because of injury, cannot meet a, b, or c above but who continues to receive financial aid on the basis of athletic ability.
Participant
For purposes of participation analysis – count every spot occupied on any team.
Multi-sport athletes count one time for each sport they play.
Schools should document all special cases
For purposes of financial aid analysis, count student-athletes once.
What is a Sport for OCR Purposes?• Team selection based upon objective factors … ability
• Defined season
• Coaching, recruitment, budget, tryouts and eligibility, length and number of practice sessions and competitive opportunities
• Administered by the athletics department
• Primary purpose of the activity is athletics competition.
The OCR has stated that it may also consider the following:
• What do knowledgeable organizations say?
• Recognized by the conference & national intercollegiate athletics associations?
• National and conference championships exist?
• National or conference rule books or manuals?
• National or conference regulation of officials & standardized criteria upon which the competition may be judged?
• Participants receive scholarships & athletics varsity awards
• 2008 OCR Guidance re Athletic Activities
• 2010 Quinnipiac lawsuit & OCR amicus brief
Equitable Participation Opportunities
Any one part of the Three Prong Test:
Prong One: Substantial proportionality
Prong Two: History and continuing practice of program expansion
Prong Three: Fully and effectively accommodate interests and abilities
Fulltime Duplicated Undergraduates Student-Athletes
Substantial Proportionality
What about Roster Management?
Managing team sizes by setting floors and ceiling targets
Possible Issues:o Beware Day-after 1st competition changeso Floors set, but resources not provided
• Cases to note: o Choike v. Slippery Rock Univ 2006o Beidiger v. Quinnipiac University 2010
o Mansourian v. UC-Davis in progress
Prong 2 -- History and Continuing Practice of Program Expansion
History• Record of adding intercollegiate teams by sex• Record of upgrading teams to intercollegiate status by sex• Record of increasing number of participants of under-represented sex• Affirmative responses to requests to add or elevate sports
Continuing Practice• Current implementation of a policy/procedure for requesting the addition of sports (includes elevation)• Effective communication• Current implementation of a plan/program responsive to developing interests & abilities• Demonstrated efforts to monitor developing interests & abilities (and timely reaction to the results)
Cutting Sports
Cutting a Viable Women’s team • Must immediately meet Proportionality
Cutting a men’s team• Disfavored practice• Does not help with Prong 2
Prong 3 – Fully and Effectively Meeting Interests & Abilities
Is there Unmet Interest?
Is there sufficient ability to sustain a team in the sport?
Is there a reasonable expectation of competition for the team?
OCR will evaluate:A. Nondiscriminatory methods for
assessing interest and ability
B. Whether a viable team was eliminated
C. Multiple indicators of Interest and of Ability
Unmet Interest & Ability
D.How Often?• Previous assessment capture interests & abilities
of students & admitted students?
• Changes in demographics or student population (OCR footnote – in a typical 4-year school, the student body changes significantly each year)
• Whether there have been complaints regarding lack of opportunity or requests to add new teams
• Plus – If the last time you checked, you were close to having the minimum number of players needed to sustain a team…keep checking.
Unmet Interest & Abilities (continued)
Third Prong Recommendations Effective, ongoing procedures – collect, maintain, analyze information on
interests & abilities
Easily understood and widely disseminated policies & procedures for receiving & responding to requests for teams. Must go to students (new & existing), coaches and employees.
Ongoing reviews of the school’s club or intramural sport participation levels;
Keep current on high school sports, amateur sports association and community sports leagues data in your geographical recruiting area;
Track the interscholastic athletics participation of admitted students; and
Conduct interviews and meetings with students, admitted students, coaches, administrators and others regarding interest in particular sports.
Get your campus Title IX Coordinator and Title IX Committee involved
2010 Dear Colleague…survey advice
A survey alone is not enough
OCR will evaluate your surveyo Content
Purpose statement List all sports; allow room to add
sports & comments Ask for contact information
o Target Population All FT undergrads & admitted of the
underrepresented sex. Census avoids sampling
shortcomings
2010 Dear Colleague…survey advice cont
• Responses – Rates & Non-responseso Try a mandatory activity, like course registrationo Give time to complete latero Widely publicize & use multiple mechanismso Email - Accuracyo Confirm lack of interest before exiting
• Confidentiality
• Frequency – other factors include size of previous assessment and response rate
Minimum # needed for competition
Opinions of AD’s & Coaches
Typical team sizes - NCAA/Conference
OCR May consider:o Rate of substitutionso Variety of skill setso Minimum for practice
How many are sufficient to Sustain a Team?
Reasonable expectation of competition -- Normal Competitive Region
o Who do you compete againsto What’s offered in your geographic regiono School may be required to actively take steps to
encourage sponsorship, if its competitive region has historically low numbers
Financial AidFinancial Aid
Title IX Athletics Financial Aid
• Compare the Scholarship Dollars Spent (not Budgeted) --Current Athletic Program
• Count All Athletes One Time Only• Considerations
o EADA -- Summer & Exhausted Aid includedo Tuition Waivers o Non-discrimination
policy
•Non-Discriminatory VARIANCE…
o Program developmento In-state and out-of-state tuitiono Unexpected fluctuations in the participationo Phasing in of athletics scholarshipso Unexpected last-minute decisions by scholarship athletes not to enroll
Title IX Treatment Issues
Other Benefits & Opportunities
AKA “The Laundry List” Equipment and Supplies Scheduling Travel & Per Diem Tutors Coaches Facilities Medical & Training Housing Publicity Support Services Recruiting
Equipment and SuppliesQuality
Suitability
Amount
Maintenance & Replacement
Availability
Scheduling of Games & Practice Times
Number of Competitive Events
Practice Time and Length
Time of Day Issues
Pre and Post Season Competition
Travel & Per Diem AllowanceType of Transportation
Where Do the Athletes Stay?
Length of Stay Before After
Per Diem Allowances
Dining Arrangements
Academic TutorsOpportunity to Receive
Academic Tutoring Availability Procedures
Assignment and Compensation of Tutors Tutor Qualifications Tutor Experience Rate of Pay Relative Workload
CoachesOpportunity to Receive Coaching
Full-Time Coaches Part-Time and Assistant Coaches Graduate Assistants
Assignment Training, Experience & Other Professional Standing
Compensation Rate Duration of Contracts & Renewal Experience Nature of Coaching Duties Working Conditions Other Terms & Conditions - Employment
FacilitiesLocker Rooms
Availability Quality
Practice & Competitive Facilities Quality & Availability Exclusive Use Maintenance Preparation
Medical & Training ServicesAvailability of Medical Personnel
Practice and Games Travel Issues
Health, Accident & Injury Insurance
Availability & Qualifications of Certified Athletic Trainers Practice and Games Travel Issues
Availability & Quality of: Weight Facilities Training Facilities Conditioning Facilities
Housing & Dining ServicesIs Student Athlete Housing Provided?
If it is, are there Special Services? Laundry Parking Cleaning Service Training Table
PublicityAvailability &
Quality of Personnel
Access to other Publicity Sources
Quantity & Quality of Publications and other Promotional Materials
Travel Issues
Support ServicesAmount of Administrative Assistance
Amount of Secretarial & Clerical Assistance
Office Space
Computers, Phones, Office Machines
Recruiting
Provision of Substantially Equal Opportunities to Recruit
Provision of Financial and Other Resources
Whether Differences in Benefits, Opportunities, and Treatment Afforded Prospective Student Athletes have a Disproportionately Limiting Effect on Recruitment
Permissible DifferencesUnique aspects of particular sports are recognized:
Recruitment Event Management Costs Equipment Publicity Issues Compensation Issues Medical Issues
Are the Disparities Significant?Difference, on the Basis of Sex
in benefits or services that has a . . .negative impact on athletes of one sex . . .when compared with benefits or services available to
athletes of the other sex.
Significant Disparity: So Substantial as to Deny Equal Opportunity
to Athletes of One Sex.
Disparities that are not Significant. . .Evidence to be Evaluated on a case by case basis.
Emerging Sports
On the List Equestrian (D-I & II)
Rugby
Sand Volleyball (D-I & II)
InterestedTriathlon
Stunt
Acrobatics & Tumbling
??
Home ► Governance ► Inclusion ► Gender Equity and Title IX
Finding NCAA ResourcesFinding NCAA Resources
NCAA InformationKey Contact: Karen Morrison [email protected]
Director of Gender Inclusion
NCAA Gender Equity Homepage: www.ncaa.org/gender_equity
Home ► Governance► Office of Inclusion ► Gender Equity
Has information about – Title IX – www.ncaa.org/title_ix Professional development programs for women NCAA Gender Equity Manual Senior Woman Administrators Emerging Sports for Women Woman of the Year Award Research and Best Practices Committee on Women’s Athletics Gender Equity Planning