NCAA Gender Equity & Title IX

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

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. NCAAInclusion 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."

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 32,000 160,000

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

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 Sportfor 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. Substantial Proportionality Fulltime Duplicated Undergraduates Student-Athletes

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

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. 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

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

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 • Email - 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

35. Financial Aid

36. Title IX Athletics Financial Aid • Compare the Scholarship DollarsSpent (not Budgeted) -- Current Athletic Program • Count All Athletes One Time Only • Considerations • EADA -- Summer & Exhausted Aid included • Tuition Waivers • Non-discrimination • policy

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

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