NCAA Gender Equity
& Title IX
History
Participation
Financial Aid
Janet Judge, Sports Law Associates, Inc.
Karen Morrison, Director,
NCAA Gender Inclusion
kmorrison@ncaa.org
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
NCAA
Inclusion Initiative
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
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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 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
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
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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
74,000
170,000
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
186,000
249,000
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
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 studentathletes 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
Substantial Proportionality
Fulltime
Undergraduates
Duplicated
Student-Athletes
What about Roster Management?
 Managing team sizes by setting floors and ceiling
targets
 Possible Issues:
o Beware Day-after 1st 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
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?
Unmet Interest & Ability
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 & Abilities (continued)
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.
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 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
2010 Dear Colleague…survey advice cont
• Responses – Rates & Non-responses
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o
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o
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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
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:
o Rate of substitutions
o Variety of skill sets
o Minimum for practice
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
Financial 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 included
o Tuition Waivers
o Non-discrimination
policy
If 60 % SA’s are
Men
If 40% of SA’s are
Women
Within 1% of SA
Unduplicated %
Men get 59-61% of
Athletics Aid
Women get 39-41%
of Athletics Aid
•Non-Discriminatory VARIANCE…
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
Title IX Treatment Issues
Other Benefits & Opportunities
AKA “The Laundry List”
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Equipment and Supplies
Scheduling
Travel & Per Diem
Tutors
Coaches
Facilities
Medical & Training
Housing
Publicity
Support Services
Recruiting
Equipment and Supplies
 Quality
 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 Allowance
 Type of Transportation
 Where Do the Athletes Stay?
 Length of Stay
 Before
 After
 Per Diem Allowances
 Dining Arrangements
Academic Tutors
 Opportunity to Receive
Academic Tutoring
 Availability
 Procedures
 Assignment and
Compensation of Tutors
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Tutor Qualifications
Tutor Experience
Rate of Pay
Relative Workload
Coaches
 Opportunity to Receive Coaching
 Full-Time Coaches
 Part-Time and Assistant Coaches
 Graduate Assistants
 Assignment
 Training, Experience & Other
 Professional Standing
 Compensation
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Rate
Duration of Contracts & Renewal
Experience
Nature of Coaching Duties
Working Conditions
Other Terms & Conditions - Employment
Facilities
 Locker Rooms
 Availability
 Quality
 Practice & Competitive Facilities
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Quality & Availability
Exclusive Use
Maintenance
Preparation
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
Housing & Dining Services
 Is Student Athlete Housing Provided?
 If it is, are there Special Services?
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Laundry
Parking
Cleaning Service
Training Table
Publicity
 Availability &
Quality of Personnel
 Access to other
Publicity Sources
 Quantity & Quality
of Publications and
other Promotional Materials
 Travel Issues
Support Services
 Amount 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 Differences
 Unique aspects of particular sports are recognized:
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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
Interested
 Equestrian (D-I & II)
 Triathlon
 Rugby
 Stunt
 Sand Volleyball (D-I & II)
 Acrobatics & Tumbling
 ??
Home ► Governance ► Inclusion ► Gender Equity and Title IX
Finding NCAA Resources
NCAA Information
Key Contact: Karen Morrison
kmorrison@ncaa.org
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