ATIXA
Happy Anniversary Title IX!
Nancy Hogshead-Makar
nhogshead@fcsl.edu
Senior Director of Advocacy; Women's Sports Foundation
Professor of Law; Florida Coastal School of Law
Twitter: Hogshead3au
Title IX: If an Educational
Institution Receives Taxpayer
Money, It Must Agree to
Provide an Environment Free
from Sex-Discrimination
Five Areas of the Law: Different Strategies for
Mandating Equality for Women in Athletics
• United States Constitution
Equal Protection Clause, 42 U.S.C. § 1983
• Public Accommodations Laws
• Ted Stevens Olympic and Amateur Sports Act
36 U.S.C. § 220501, et seq.
• Title IX of the Educational Amendments of 1972
20 U.S.C. Section 1681 et seq.
• Equal Pay Act and Title VII
Coaching, Administration and Leadership
Title IX Covers…
… every aspect of federally funded education programs.
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Access to Higher Education
Athletics
Career Education
Education for Pregnant and Parenting Students
Employment
Learning Environment
Math and Science
Sexual Harassment
Standardized Testing
Technology
Title IX and Equity in Athletics Participation
Only Sport is Sex-Segregated
Title IX Requires Compliance in
Each of These Three Areas
1. Participation
• Effective accommodation of interests & abilities
2. Athletic Financial Assistance
• Financial aid: Female and male student-athletes must
receive athletics scholarship dollars proportional to their
participation.
3. Treatment of student-athletes
• Equal treatment of female and male student-athletes in
the areas known as the “laundry list”
Title IX and Equity in Athletics Participation
Participation: How Many Women’s Sports
Teams Must a School Sponsor?
1979 Test: Schools Must meet one of these 3 prongs
• Prong 1: Opportunities for males and females substantially
proportionate to their respective enrollments. OR
• Prong 2: Where one sex has been underrepresented, a
history and continuing practice of program expansion
responsive to the developing interests and abilities of that
sex. OR
• Prong 3: Where it can be demonstrated that the interests
and abilities of the underrepresented sex have been fully
and effectively accommodated by that present program.
Title IX and Equity in Athletics Participation
Boys’ High School Sports Participation
2010-11: 4,494,406 - The Highest in History
High School Athletics Participation Survey Totals 1971-2010
5,000,000
4,500,000
4,000,000
3,000,000
2,500,000
Boys
2,000,000
Girls
1,500,000
1,000,000
500,000
0
1971
1973
1977
1979
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
2009
Participants
3,500,000
Year
http://www.nfhs.org/content.aspx?id=4208
Sponsorship Levels – Numbers of Participants
NCAA Championship Sports Participation
Women
Men
300000
250000
200000
150000
100000
50000
0
1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
(Provisional members included from 1995-96 to present.)
Trends in Fast-growth Women’s Sports
Women's CC
Women's Soccer
Softball
Women's Indoor Track
Women's Outdoor Track
Women's Golf
1000
950
900
850
800
750
700
650
600
550
500
450
400
350
300
250
200
150
100
50
0
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
Title IX and Equity in Athletics Participation
Trends in Fast-growth Men’s Sports
Men's Soccer
1000
950
900
850
800
750
700
650
600
550
500
450
400
350
300
250
200
150
100
50
0
1981
1983
Men's Indoor Track
1985
1987
1989
Baseball
1991
1993
Men's CC
1995
1997
Men's Basketball
1999
2001
2003
Men's Lacrosse
2005
2007
Title IX and Equity in Athletics Participation
“Interest” in Sport is
Dictated by Opportunities
Demand - H.S. v. NCAA Participation
*2009-2010 National Federation High School Athletic Association (www.nfhs.org) athlete data
**2009-2010 NCAA® Sports Sponsorship and Participation Rates Report
NCAA Participation Rates
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Participants: 412,768
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57.4% male; 42.6% female
Teams: 17,682
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Net Change – Since the 1990-91 academic year, female teams up 2,268, male
teams up 273
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Women’s teams up each of the last 25 yrs, while men’s teams have increased 7
of last 11 yrs
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9,380 women’s teams; 8,302 men’s teams
Average number of student-athletes per school: 232 men & 168 women
Greatest team growth for women – soccer, golf, indoor track, cross country, outdoor
track and softball
Greatest growth for men – indoor track, cross country, baseball, basketball, lacrosse
and soccer.
Greatest losses of teams for men: wrestling, gymnastics, swimming/diving, fencing.
NCAA Sports Sponsorship and Participation Rates Website:
http://www.ncaapublications.com/Uploads/PDF/ParticipationRates2009c2f40573-60aa-4a08-874d-1aff4192c5e4.pdf
Title IX and Equity in Athletics Participation
Scholarships
• Total Dollars must be within +/- 1% of Student-Athlete
Population
Title IX and Equity in Athletics Participation
Treatment of Athletes
• The treatment and benefits the men and women receive
must be comparable.
• Let’s look at a few components of “Treatment” that are
particularly relevant…
Title IX and Equity in Athletics Participation
Treatment of Athletes
Equipment
Scholarships
Facilities
Medical/
Training Services
Scheduling
Treatment
Tutoring
Coaching
Support
Services
Publicity
Travel &
Daily
Allowance
Title IX and Equity in Athletics Participation
Treatment of Athletes
Treatment of Athletes
Equipment
Title IX and Equity in Athletics Participation
Treatment of Athletes
Publicity
Title IX and Equity in Athletics Participation
Treatment of Athletes
Travel and Daily Allowance
Title IX and Equity in Athletics Participation
Treatment of Athletes
Coaching
Employment decisions, including
those regarding coaches, are to be
made in a non-discriminatory
manner.
Title IX and Equity in Athletics Participation
Treatment of Athletes
Facilities
Under Title IX, both baseball
and softball programs are
entitled to comparable
facilities.
Title IX and Equity in Athletics Participation
Athletic Department Budgets
Recognizing that some sports are more expensive
than others, there is NO equal funding requirement,
however…
When gender differences in money exist, it may result in problems
with overall program fairness.
e.g., uniforms may have different costs, but per-athlete travel
costs are typically the same.
Title IX and Equity in Athletics Participation
Treatment of Athletes
Support Services: Booster Clubs
Title IX and Equity in Athletics Participation
Avoid Misperceptions
• Athletics participation is part of education.
• Title IX does not require a school to drop or eliminate
programs to meet compliance.
• Avoid blaming women when a men’s teams’ request for
resources cannot be accommodated.
• Avoid creating programs with a few men’s sports viewed as
important and the other sports “get what they get.”
Title IX and Equity in Athletics Participation
Avoid Misperceptions
• Remember that females seek and deserve the same
benefits from athletics that males do. This means breaking
down gender stereotypes.
• Use strategies to educate administrators and school boards
when they create compliance barriers.
• Booster clubs cannot create differences in athlete treatment.
Use strategies to educate and manage booster clubs and
parent groups about the law.
• Be proactive and do the right thing for all student-athletes.
Title IX and Equity in Athletics Participation
Cases for Athletics
• Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005)
• Lisa Simpson; Anne Gilmore v. University of Colorado
Boulder, et al., (No. 06-1184, No. 07-1182; 2007U.S. App.
LEXIS 21478) U.S. Ct. of Appeals, 10th Cir., September 6,
2007
• Tiffany Williams v. Board of Regents of University of
Georgia, (2006 U.S. App, LEXIS 5895) U.S. Ct. of Appeals,
11th Circuit, March 9, 2006
• Melissa Jennings v. University of N. Carolina, Chapel
Hill, (2006 U.S. App. LEXIS 8869) U.S. Ct. of Appeals, 4th
Circuit, April 11, 2006
• Fitzgerald ,et al., v. Barnstable School Committee et al.,
129 U.S. 788 (January 21, 2009)
Title IX and Equity in Athletics Participation
Jackson
• K-12 Case
• 1999 - Jackson complains about inequity in sports
programs’ funding (gender)
• 2000 - He begins to get negative evaluations
• 2001 – Dismissed as coach, retained as teacher
• He sues under Title IX’s private right of action
Title IX and Equity in Athletics Participation
Jackson
• Procedure:
• District Court – School prevails
• 11th Circuit – Upholds Dist. Ct. finding
• Supreme Court – Overturns
• Question: Does the private right of action for
discrimination only apply to the direct victim of the
discrimination, or does it also apply to a party who
advocated on behalf of the victim?
• Retaliation covered under Title IX
Title IX and Equity in Athletics Participation
Simpson
• The Facts
• 2 women (students) are raped by two recruits at a
party.
• NOTE: The assaults occurred off‐campus, on
private property, and were in part committed by
non‐students. (speaking to the scope of Title IX)
• The Procedure
• District Court – Finds for CU on summary judgment.
• 10th Circuit Court of Appeals - Overturns
Title IX and Equity in Athletics Participation
Simpson
1. That CU had an “official policy” of showing
high‐school football recruits a “good time” on their
visits to the CU campus;
2. That the alleged assaults were caused by CU’s failure
to provide adequate supervision and guidance to
player‐hosts chosen to show the football recruits a
“good time”; and
3. That the likelihood of such misconduct was so obvious
that CU’s failure was the result of deliberate
indifference.
(Another legal standard)
Title IX and Equity in Athletics Participation
Williams
• The Facts
• Rapist was a recruited basketball player who had
prior criminal record re; sexual misconduct.
• Victim went to a basketball player’s dorm to have
consensual sex. Afterwards, victim raped by two
students.
• Victim withdraws from school after event.
• The conduct process hearing occurs 1 year later
with findings of not responsible.
Title IX and Equity in Athletics Participation
Williams
• The District Court:
• dismissed Williams’ Title IX and § 1983 claims,
• denied her requests for declaratory and injunctive
relief, and
• denied in part and granted in part her motion to
amend her complaint.
• The Circuit Court of Appeals:
• Reversed the district court's decisions to dismiss
Williams' Title IX claims against UGA and UGAA;
• reversed the district court’s decision to deny
Williams' motion to amend her complaint;
• affirmed the other holdings of the district court,
including the dismissal of the §1983 claims.
• The case was then settled out of court for an
undisclosed amount.
Title IX and Equity in Athletics Participation
Williams
• Actual Knowledge:
• Rapist (Cole) actively recruited by coach, AD and
Univ. Pres, knowing he had disciplinary problems
and criminal problems, associated with SH.
• Deliberate Indifference:
• UGA waited 11 months, until after criminal
investigation, which ct says unreasonable; UGA can
act promptly.
• Student-Athletes suggested that athletes get SH
training.
• Placed Cole in dorm w/o supervision
• No discipline of Cole after rape.
• No actions preventing future attacks.
Title IX and Equity in Athletics Participation
Jennings
• The Facts
• A female soccer player (and two other players) are
sexually harassed by their head coach with
repeated inquiries into players’ sexual activities and
comments.
• She reports the events to counsel and is told to
“work it out” with the coach on her own
• She and her family tell the Chancellor’s Assistant
and the AD.
• She is dismissed from the team.
Title IX and Equity in Athletics Participation
Jennings - Procedure
• The district court:
• dismissed Jennings Title IX and § 1983 claims,
• Two other P’s settle: one for undisclosed 6 figures and
the other for $70,000,
• 3-judge panel circuit court of appeals:
• Upholds the dismissal
• En Banc
• Overturns the Ct. of Appeals.
Settlement: Plaintiff for $375K, fees, a required annual review
of policy and annual training for the coach.
Title IX and Equity in Athletics Participation
Jennings - Significance
1. The case examines the power-relationship between coach
and player
2. Plaintiff not the direct victim to most of the banter.
3. It determined that coach’s “locker room banter” was severe
and pervasive
4. The “deliberate indifference” of the response (and other
failings)
Title IX and Equity in Athletics Participation
What does Title IX and Athletics have to
do with Sexual Harassment and Assault?
• The purpose of gender equity in the athletic department is
substantively to show men and women as equals.
• Schools cannot tell male athletes to treat women as equals
when they treat men as superiors.
• If the Athletic Department does not accept women as equal
to men, it cannot expect male athletes to do so.
Title IX and Equity in Athletics Participation
Questions?
