Georgie Porgie Pudding and Pie
Kissed the girls and made them cry
When the girls came out to play,
Georgie Porgie ran away
While we were all watching the feeding-tube-and- circuses distractions last week, the Office of Civil Rights quietly drove a stake into gender equity.
What is gender equity? Simple, really. It says you have give men and women equal access to the same opportunities. And if you receive federal funds as an academic institution, you can have your funds revoked if you don’t.
How could anyone find fault with the idea of treating our sons and daughters equally? Well, officials at the Office for Civil Rights do. They’ve just made it a whole hell of a lot easier for academic institutions to evade the law.
Women’s Sports Foundation and here is asking for public support in getting the OCR to back down on its latest hare-brained clarification. The Bush administration has had Title IX in its sights. Despite a 2003 analysis of Title IX that advised leaving the law as it is, this OCR ruling disregards those recommendations in favour of giving women short-shrift.
The diary entry that follows is long, but I’ve attempted to pull together a lot of information. Please, please, contact your congressional representatives and ask them to put pressure on the OCR to rescind its latest bullshit ruling.
Title IX: A Summary of the Law, Its Requirements, and Relevant Court Cases.
Title IX became law in 1972 as part of a series of amendments to the 1964 Civil Rights Act. Its simple text of 37 words has spawned thousands of pages of court interpretations, Office of Civil Rights’ (OCR) clarifications, newspaper and magazine articles, and fierce public debate. It reads: “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.”
The law, as all laws, is simply expected to be complied with. There is no agency that comes into schools on a regular basis to monitor whether male and female students are being treated fairly. It relies on schools making a good-faith effort to bring their programs into compliance by ensuring that both sexes have equal access and opportunity to participate in programs. But compliance requires vigilance. It requires that schools self-monitor to make sure that students are not being shut out of programs where they wish to participate. It requires reviewing efforts and outreach, opportunities and equipment. In short, Title IX requires that schools put into practice the ideals of gender equity, and then monitor their own compliance with those ideals on a regular basis.
History of Title IX
Title IX has been on the law books since 1972; the law stipulated that all schools receiving federal funds had to be in compliance by 1975. In 2004, the number of programs that are not in compliance continues to be high; this is due, in part, to confusion as to what the law requires. Since 1972, however, there have been a number of clarifications by the OCR and federal court rulings that have created a system for determining compliance.
In 1983, the United States Supreme Court ruled in ,i>Grove City v Bell that athletics programs could be exempted from compliance with Title IX. In 1988, Congress passed the Civil Rights Restoration Act, which returned athletics programs to the list of activities that would receive Title IX protection. In 1992, the Supreme Court ruled that individuals could recover monetary damages and legal fees in Title IX cases. This decision, ,i>Franklin v Gwinnet, has significantly strengthened enforcement of Title IX. It has given the law weight, and it has been through suits brought after Franklin v Gwinnet that the courts have made abundantly clear that there is no going backwards.
In 1979, the OCR issued its “Intercollegiate Athletic Policy Interpretation,” which outlined three major categories for determining whether schools were upholding Title IX. These are:
“I. Accommodation of Interests and Abilities (sports offerings)
II. Athletic Financial Assistance(scholarships)
III. Other Program Areas (everything else-11 program areas), including:
(1) equipment and supplies;
(2) scheduling of games and practice time;
(3) travel and per diem allowances;
(6) locker rooms, practice and competitive facilities;
(7) medical and training facilities and services;
(8) housing and dining facilities and services;
(10) support services; and
(11) recruitment of student-athletes.”
Areas where the courts have ruled on Title IX have included disproportionate allocation of scholarship funds; failure to provide equal opportunities for men and women to compete; inequality in the level of equipment or facilities provided to comparable men’s and women’s sports; scheduling of women’s sports in non-traditional seasons that results in women not being able to participate.
Part I: Accommodation of Interests and Abilities (sports offerings)
In 1996, OCR published a “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test.”
The purpose of the three-part test is to allow intercollegiate athletics programs to choose one of three avenues to achieving compliance with accommodation of interests and abilities. One of the following criteria must be met. The three parts of the test are:
1. “Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
2. Whether the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or
3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.”
Prong 1 is relatively straightforward. It matches percentage enrollment numbers of men and women to percentage athletes in intercollegiate athletics. Thus a school with a 52/48 female-to-male ratio should have a 52/48 female-to-male athlete ratio. Athletes are defined as varsity members of NCAA-sanctioned sports. Some fluctuations are allowed for changing enrollments, but, in general, if the percentage discrepancy between enrollment and representation is enough that a team could be fielded, a school would not be in compliance. If a school has a 52/48 female-to-male ratio, but its student athletes are 51/49 female-to-male, the percentage point could be negligible, unless the school is large enough that that percentage point represents, for example, 25 female athletes, which would be enough athletes to comprise a team.
Prong 2 allows schools that do not demonstrate proportionality to prove a history of adding team sports in response to demands and interests of the underrepresented sex. This is defined by OCR as:
“An institution’s record of adding intercollegiate teams, or upgrading teams, or; upgrading teams to intercollegiate status, for the underrepresented sex;
; An institution’s record of increasing the numbers of &participants in intercollegiate
; athletics who are members of the underrepresented sex; and; An institution’s affirmative responses to requests by students or others for; addition or elevation of sports.”
One could assume, therefore that a school that had added three female sports in the past five years and had specific plans to add another in response to demand would be able to demonstrate such a history. A school that had added two sports ten years ago, and had a non-specific plan to add another team “at some point in the future,” would not.
It is important to note that, according to the NCAA, few schools are able to demonstrate compliance with Prong 2 at this time of rapidly expanding female sports participation.
Prong 3 allows a school to demonstrate that its disproportionate numbers are not due to discrimination against the underrepresented sex, but, rather, reflect an accommodation of the interests and abilities of its students. If a school can demonstrate that there is no demand for a sport that it does not offer to the underrepresented sex, it can show that there is no discrimination in not offering said sport. However, accommodating interests and abilities of students includes those who have been admitted but not yet enrolled.
Interest by the underrepresented sex is determined by OCR in the following way:
“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 interscholastic sports by admitted students.”
It should be noted that OCR is interested in whether there is interest and ability to sustain a team, not whether said team would be competitive in that sport: a potentially poor competitive record in said sport is not relevant.
It is relevant, however, to ask whether said team would have opportunities for competition in its geographic area, i.e., do the schools against which the school competes offer this sport? And are there schools in the geographic area that could offer competition opportunities? However, according to OCR: “…the institution may also be required to actively encourage the development of intercollegiate competition for a sport for members of the underrepresented sex when overall athletics opportunities within its competitive region have been historically limited for members of that sex.”
Court Rulings Relevant to Part I
Title IX has been contested repeatedly in its history. For the most part, the courts have been the avenue by which students who feel they are being discriminated against have sought redress from their schools. These are the most recent cases that have established how the courts interpret proportionality and the measures that must be taken by schools to ensure that they are providing full and equal accommodation of the athletic interests of the underrepresented gender.
In Cook v. Colgate University, a group of female students sued Colgate University for its repeated refusal to elevate ice hockey to a women’s varsity sport. Colgate provided six reasons for its refusal; chief among them was the argument that it could not afford the expense of supporting such a program. The court ruled that, “Equal athletic treatment is not a luxury. It is not a luxury to grant equivalent benefits and opportunities to women.” Colgate was ordered to elevate ice hockey. Financial constraints are not recognized by the courts as legitimate reasons for not complying with Title IX.
In Cohen v. Brown University, the court ruled that Brown’s decision to eliminate two women’s sports and two men’s sports constituted a Title IX violation. The reduction of the two women’s teams was also part of a 62/37 male-to-female athletic ratio, despite a 52/48 student ratio. Brown argued that its history of adding women’s sports offset the cutting of two. The court ruled that Brown had 90 days to present a comprehensive plan for bringing itself into compliance with Title IX. The court also produced, in its ruling, a definition of “participation opportunities” measurement to be used to determine compliance. These are to be measured by “counting the actual participants on intercollegiate teams,” which overruled Brown’s contention that “unfilled but available slots” should be counted.
In Roberts v. Colorado State Bd. of Agriculture, the court ruled that even though Colorado had cut both men’s baseball and women’s softball, resulting in the loss of 55 male athletes and 18 female athletes, the cutting of the women’s team added to the already disparate (10.5 percent) proportionality of men to women in the athletic program. It was ordered to reinstate softball. A similar ruling was reached in Favia v. Indiana University of Pennsylvania.
In Pederson v. Louisiana State University, the U.S. Court of Appeals for the Fifth District found that LSU had deliberately violated Title IX with intentional discrimination. The proportion of athletes 71/29 was out-of-kilter with enrollment, 51 female/49 male. In this case, however, the court ruled that LSU’s violations of Title IX were the result of attitudes on the part of administrators of “paternalism and stereotypical assumptions” about women’s interests in sports, and therefore, “the institution intended to treat women differently because of their sex.” Also, the court ruled that LSU’s ignorance that it was violating Title IX did not excuse its decisions.
In a variety of cases brought against Illinois State University, Drake University, University of California, and California State University, the courts have ruled consistently that eliminating men’s teams in order to attempt to achieve proportionality is not a violation of Title IX. In Neal v. Board of Trustees of the California State University at Bakersfield, the court noted: “Every court, in construing the Policy Interpretation and the text of Title IX, has held that a university may bring itself into Title IX compliance by increasing athletic opportunities for the underrepresented gender (usually women) or by decreasing opportunities for the overrepresented gender (usually men).”
Part II: Athletically Related Financial Assistance
I’m leaving this out. While this applies to Division I and II colleges, it does not apply to high schools nor any Div III schools. But I’m happy to provide further information.
Part III: Other Areas
These other areas fall into 11 categories, listed above. A brief description of what each entails follows. It is important to note that the courts have consistently ruled that disparate treatment of male and female athletes that results from the donation of booster club money does not relieve the school or university from compliance. Programs have been required to provide equitable treatment to male and female athletes, even if the funds that provided male athletes with extra benefits were not provided directly by the university.
Equipment and Supplies
Quality: This does not mean that all men and all women’s teams need to be treated exactly the same. It does mean, however, that if a proportion of men’s teams (e.g., football and basketball) have high-quality uniforms or equipment, that same proportion of female athletes shall receive equal treatment.
Suitability: Requires that each sport be provided suitable equipment for its competition.
Amount: Requires that men’s and women’s teams receive equal numbers of equipment. For example, if men’s teams are provided game and practice uniforms, women’s teams must be, too.
Availability: This requires that teams have access to their equipment equally. Violations often occur if women only have access to equipment during non-traditional hours.
Maintenance: Equipment storage, team managers, laundry, equipment repair must be available in appropriate numbers and accessibility that is adequate to each sport and equivalent for men and women based on the needs of each sport.
Replacement: Replacement schedules must be equal unless dissimilar sports allows for a different rate of replacement.
Scheduling of Games and Practice Times
Number of Competitive Events. In each sport, women’s and men’s teams should be scheduled for the same number of competitive events.
Time of Day. Competitive events must be scheduled at times that are equally convenient or inconvenient for men’s and women’s teams. Courts have ruled that “prime time” may not be held exclusively for men’s teams. Scheduling women’s games to precede men’s games so that women play at a less convenient time for a larger audience is a compliance issue.
Practice Times: Women and men’s teams should have the same access to practice hours per week based on the requirements of their sports.
Time of Day of Practices: Women and men’s teams should have equal access to prime practice times. This may mean that men’s and women’s teams may have to alternate access to practice facilities rather than scheduling women for the less convenient time consistently.
Preseason, Postseason and Non-Traditional Seasons: Men’s and women’s teams should have equal access to events outside of regular season.
Travel and Per Diem Allowances
Modes of transportation should be equivalent for men’s and women’s teams. Determination of mode of transportation should be based on distance, and then men and women receive equal transportation based on distance. If men fly 500 miles but women take the bus, this is a non-compliance issue. It is also a compliance issue if men are allowed to travel long distances but women’s teams are not.
Travel Squads Should be the same for the same sports and equivalent for dissimilar sports.
Housing Athletes assigned to a room should be equivalent in proportion, but not necessarily overall numbers. For example, if football sleeps two to a room, and they constitute 50 percent of male athletes, then 50 percent of female athletes sleep two to a room.
Length of Stay Must be equivalent. It is not compliant for men to arrive the day before a competition while women arrive on the same day.
Per Diem All athletes should be provided the same per diem expenses.
Dining Men and women should be provided equivalent quality of food.
Male and female athletes should be given equal access to tutors. Tutors must be similarly qualified, experienced and available to athletes. If tutors are paid different rates of pay, students of both sexes should have equal access to the higher-paid tutors.
Number of coaches; Sports should have the same number of coaches and assistant coaches for its men’s and women’s teams. The number of coaches is determined by the individual sport, but if men and women both participate in the same sport, number of coaches should be equal. For example, if men’s basketball has a head coach and two assistants, then women’s basketball must have one head coach and two assistants.
Length of contract: The same percentage of coaches of men’s and women’s sports should have the same lengths of contracts. If 50 percent of men’s teams’ coaches are on multi-year contracts, then 50 percent of women’s teams’ coaches should be on multi-year contracts.
Percentage of time for coaching. This is a system that the NCAA admits continues to be difficult to determine. But the standard to strive for is that the same percentage of coaches in men’s and women’s programs has the same percentage of time devoted to coaching. For example, if 25 percent of the men’s coaches have 100 percent coaching duties, then 25 percent of the women’s coaches should have100 percent coaching duties.
Employment conditions Additional duties-teaching, administration, etc., should not negatively affect one sex’s coaches more than the other.
Assignment This refers to number of years of coaching experience, which should be roughly similar between men’s and women’s programs. A typical issue of non-compliance is where coaches with a lot of experience are hired for the men’s teams, but women’s teams are given coaches with little coaching experience.
Compensation. This is very complicated and this is a basic summary. The level of compensation of men’s and women’s teams’ coaches (and not the gender of the coach) should be equivalent to the participation numbers. In other words, if male athletes comprise 55 percent of the athletic program, then 55 percent of the coaches’ salaries should be paid to men’s coaches. “…the issue of compensation under the athletics provisions of the Title IX regulation is analyzed as to its effect on students and not the effect on employees.” BUT, salary issues are not compliance issues unless the salaries have an impact on the quality of coaching available to men and women athletes, thus some coaches may be paid abnormally high salaries to reward a significant record of achievement. However, if there is disparate payment of a male coach and a female coach of the same sport, the discrimination claim may come under Title VII and the Equal Pay Act, and are, in that case, based on the sex of the coach, not the sex of the athletes being coached.
Locker Rooms, Practice and Competitive Facilities
Locker Rooms are a common area of non-compliance. The same quality locker rooms must be provided to male and female athletes. A determination of this comes through an examination of ” adequacy for the number of athletes using the room at one time; the number, size and quality of lockers; seating; lighting; floor; numbers of commodes, sinks, showers, hair dryers and mirrors; cleanliness; space to meet or move around; lounge areas and furniture; TV, CD, stereo and VCR equipment; and special features such as refrigerators and training facilities…”
Practice and Competitive Facilities Roughly equivalent percentages of male and female athletes must have access to facilities of equivalent quality.
Maintenance of Facilities: Maintenance schedules should be similar for similar sports’ facilities, regardless of gender of teams that use facilities.
Preparation of Facilities: Equivalent preparation of facilities on game days should be provided for equivalent sports.
Medical and Training Facilities and Services
Compliance here is based on the sport, not on gender. However, if medical personnel are provided for a male sport where there is a female equivalent, coverage provided must be equally. In other words, providing medical personnel to cover football games but not swimming does not constitute discrimination. Providing medical personnel to men’s basketball but not women’s basketball is.
Medical Personnel: Services such as physical exams, etc. should be available equally to male and female athletes.
Athletic Trainers: Male and female athletes in the same sport should have equal access to certified athletic trainers. Student trainers and ATCs should be equally available to male and female athletes. A common compliance problem is to provide ATCs to male athletes but assign student trainers to female athletes.
Training Rooms If there are separate male and female athletic training rooms, they must be equivalent. If male and female athletes share a training room, both sexes should have equitable scheduling.
Weight Rooms. If there are separate weight rooms for men and women, they should be equivalent. If times are scheduled, prime time should be equivalently allocated to both sexes. Strength coaches are allowed to spend more time with football athletes if strength coaches are equivalently available to female athletes whose sports require such training
Insurance: If athletes are given health insurance, it must be equivalent for male and female athletes, with the exception that health insurance provided to students must provide gynecological care if that care is related to athletics participation. If an insurance policy does not cover gynecological care, insurance companies should be changed to ensure compliance.
A special note: “Institutions have been cited for noncompliance because of unprofessional attitudes of medical and training staff that discouraged female athletes from seeking treatment.”
Housing and Dining Facilities and Services
Housing: If housing privileges are accorded to athletes, those privileges must be equally available to male and female athletes.
Dining: If certain sports are accorded dining privileges in terms of quality or quantity of food, those privileges must be available to the same percentage of male and female athletes.
Pregame and Postgame meals; These should be equally available to male and female teams, even if a teams do not choose to take advantage of it.
Housing during non-academic periods: If athletes are required to stay during non-academic periods, the level of housing provided to both sexes must be equal. It is a common non-compliance issue that male teams are provided university accommodations while female athletes are not.
Sports Information Personnel Professional and student personnel should be assigned in equal numbers to male and female sports. It is a common compliance issue to have student staff assigned to women’s teams while professional staff works with men’s teams.
Publications; If media guides are provided to men’s teams, they must be provided to women’s teams. Game programs should be of the same quality and offered to the same percentage of men’s as women’s teams. Schedule cards should be provided to the same percentage of men’s and women’s teams. Press releases should be released on equal schedules for men’s and women’s teams.
Other Publicity: Promotion and marketing of men’s and women’s teams should be equivalent. It is a common compliance problem for men’s teams to be publicized but not women’s teams. Even if the men’s teams receive more press coverage, the effort in getting coverage should be equivalent.
Support Groups. Cheerleaders, drill teams, bands, etc., should be available to men’s and women’s teams on equivalent bases.
Support staff, such as administrative support, secretarial support, office space and equipment, and other support staff should be provided in equivalent fashion to men’s and women’s coaches. In terms of offices: “Quality includes office size, available equipment such as computers, typewriters, phones, desks, tables, chairs, bookcases, carpeting, lighting, windows, air conditioning, and whether the office is shared.”
Recruitment of Student-Athletes
Proportionate Dollars; Dollars budgeted for athlete recruitment should be proportionate to rates of participation. If 55 percent of a department’s athletes are male, then 55 percent of the recruitment dollars should be spent for male athlete recruitment. Exceptions to this may arise when there is a new sport to be established, or a large number of a sport’s athletes have graduated, thus necessitating higher than average replacement needs.
Coaches’ Travel Coaches must be granted equivalent rights to travel to recruit athletes.
Miscellaneous Expenses; Videos, brochures, courtesy cars for coaches, subsidized visits, mail and telephone expenditures, and recruitment services should be available to men’s and women’s teams equivalently.
Treatment of Prospective Student-Athletes Prospective student-athletes should be afforded equivalent transportation, housing, meals, entertainment and other expenses. It is not compliant to offer male prospects certain benefits not available to female athletes.