The Law

1
The Law

• Gender Equity Law Overview

2
Title IX, 29 U.S.C. 1681, et. Seq.

• 1681
• No person in the United States shall, on the
  basis of sex, be excluded from participation in
  (accommodation), be denied the benefits of
  (benefits/program analysis), or be subjected to
  discrimination (sexual discrimination) under any
  education program or activity receiving Federal
  financial assistance
• 1682
• 1687 (Civil Rights Restoration Act)

3
Regulations, 34 C.F.R. 106.41

• (a) No person in the United States shall, on the
  basis of sex, be excluded from participation in,
  be denied the benefits of (so far same as Title
  IX),be treated differently from another person or
  otherwise be discriminated against in any
  interscholastic, intercollegiate, club or
  intramural athletics offered by a recipient, and
  no recipient shall provide any such athletics
  separately on such basis

4
Regulations, 34 C.F.R. 106.41

• (c) Equal Opportunity
• equal opportunity for members of both sexes
• Factors to consider (10 in all)
• (3) Scheduling of games and practice time
• (7) Provision of locker rooms, practice and
  competitive facilities
• Caveat Unequal aggregate expenditures for
  members of each sex or unequal expenditures for
  male and female teams if a recipient operates or
  sponsors separate teams will not constitute
  noncompliance. . .but. . .may consider the
  failure to provide necessary funds for teams for
  one sex in assessing equality of opportunity for
  members of each sex

5
Education Amendments of 1974

• Education Amendments of 1974 provided for
  Secretary of HEW to publish regulations
  implementing the provisions of Title IX
• They became the policy interpretation

6
A Policy Interpretation Title IX and
Intercollegiate Athletics

• Purpose
• Scope
• Clarification provided

7
A Policy Interpretation Title IX and
Intercollegiate Athletics

• Three areas
• (1) Compliance in Financial assistance
• (2) Compliance in other Program Areas
• Governing Principle male and female athletes
  should receive equivalent treatment, benefits,
  and opportunities
• 3) Compliance in meeting interests and abilities
  of male and female students
• 3 part accommodation test
• 2 part levels of competition test

8
A Policy Interpretation Title IX and
Intercollegiate Athletics

• (2) Compliance in other Program Areas
• Part One Assessment
• Compare overall programs
• Part Two Nondiscriminatory Factors
• Look for sex-neutral explanations for disparities
• (c) Activities directly associated with the
  operation of a competitive event in a single sex
  sport may. . .create unique demands or imbalances
  in particular program components

9
A Policy Interpretation Title IX and
Intercollegiate Athletics

• Part Three Apply the New Factors from the Policy
  Interpretation
• For each factor from the regulations analyze it
  using the factors provided in the policy
• Example
• Provision of Locker Rooms, Practice and
  Competitive Facilities (86.41(c)(7))
• Factors
• (1) Quality and availability of the facilities
  provided for practice and competitive events
• (2) Exclusivity of use if facilities provided for
  practice and competitive events
• (3) Availability of locker rooms
• (4) Quality of locker rooms
• (5) Maintenance of practice and competitive
  facilities, and
• (6) Preparation of facilities for practice and
  competitive events

10
A Policy Interpretation Title IX and
Intercollegiate Athletics

• Part Four Overall Determination of Compliance
• Look to three final questions on overall program
• (a) Whether the policies of an institution are
  discriminatory in language or effect, or
• (b) Whether disparities of a substantial and
  unjustified nature exist in the benefits,
  treatments, services, or opportunities afforded
  male and female athletes in the institutions
  program as a whole, or
• (c) Whether disparities in benefits, treatment,
  services, or opportunities in individual segments
  of the program are substantial enough in and of
  themselves to deny equality of athletic
  opportunity

11
1996 Clarification of Intercollegiate Athletics
Policy Guidance The Three-Part Test

• Clarification provides updated interpretation and
  clarification of the Policy Interpretation
• 3-part test gives school 3 separate ways to
  provide nondiscriminatory opportunities
• Part One are participation opportunities
  substantially proportionate to enrollment?
• Part Two History and practice of program
  expansion for underrepresented sex?
• Part Three Fully and Effectively Accommodating
  Interests and abilities?

12
Commission Report (2002-2003)

• Open to All Title IX at Thirty
• Main recommendation is further education
• Clarification of requirements
• Reiteration that cutting mens teams not favored

13
Clarification Letter from OCR (2003)

• (1) Reiterates importance of 3 part test
• All effective 1 not favored
• (2) Elimination of teams not required and is
  disfavored
• (3) Aggressive enforcement yet will help so
  sanctions not necessary
• (4) Private sponsorship of teams is allowed but
  does not change Title IX analysis
• (5) Will ensure enforcement does not vary from
  region to region

14
Additional Clarification on Intercollegiate
Athletics Policy Three-Part Test Part Three
(3/17/05)

• Response to 2003 clarification
• Of 130 institutions OCCR investigated 1992-2002
  2/3 complied with part 3
• Not required to accommodate interests of all
  students or fulfill every request
• Burden of proof on the government or the student

15
Additional Clarification on Intercollegiate
Athletics Policy Three-Part Test Part Three
(3/17/05)

• Developed new web-based prototype survey to test
  this
• Institution can rely on as acceptable method to
  measure students interests
• Administer to all undergraduates or all students
  of the underrepresented sex
• Creates presumption of compliance with part 3
• Clarify factors and facilitate compliance
  (concern for some)

16
Additional Clarification on Intercollegiate
Athletics Policy Three-Part Test Part Three
(3/17/05)

• Will meet this part unless there exists a sport
  for the underrepresented sex that has
• (1) unmet interest sufficient to sustain a
  varsity team in the sport
• 1) Follow model survey ? census survey
• 2) Conduct a census using model survey following
  users guide
• 3) Can use other survey if meets same parameters
• 4) Survey not required to meet part three

17
Additional Clarification on Intercollegiate
Athletics Policy Three-Part Test Part Three
(3/17/05)

• Will meet this part unless there exists a sport
  for the underrepresented sex that has
• (2) sufficient ability to sustain an
  intercollegiate team in the sport

18
Additional Clarification on Intercollegiate
Athletics Policy Three-Part Test Part Three
(3/17/05)

• Will meet this part unless there exists a sport
  for the underrepresented sex that has
• (3) reasonable expectation of intercollegiate
  competition for a team in the sport within the
  schools normal competitive region

19
Additional Clarification on Intercollegiate
Athletics Policy Three-Part Test Part Three
(3/17/05)

• If school has sufficient unmet interest and
  ability to sustain a team and
• Reasonable expectation of intercollegiate
  competition in that sport
• Within the schools competitive region
• School is under an obligation to create a varsity
  team or elevate that sport
• If it elects to comply with part three
• Must do so in a reasonable period of time

20
Users Guide to Developing Student Interest
Surveys Under Title IX

• National Center for Educational Statistics
• Federal entity for collecting, analyzing and
  reporting data related to education in the U.S.
  other nations
• Follow up to 2003 clarification after commission
  report ? OCR was going to provide technical
  assistance to schools on meeting Title IX
  requirements

21
Users Guide to Developing Student Interest
Surveys Under Title IX

• Findings on institutional differences and
  similarities
• 2/3 of 130 OCR case files followed part 3
• Overall cases involve large state colleges highly
  involve in college sports
• Schools following part 3
• Public, 2-year institutions, greater female and
  Black students
• Small, less expensive, located in Southeast
• Overall do not participate in conference sports
  and NCAA
• Educate large numbers of UG

22
Users Guide to Developing Student Interest
Surveys Under Title IX

• Current survey practices
• How to conduct a survey of student interest

23
Users Guide to Developing Student Interest
Surveys Under Title IX

• Prototype survey
• Screen 1
• Introduction and purpose, confidentiality
  statement, explanation of process

24
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 2
• Demographic information

25
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 3
• Allows respondents with no interest to end survey

26
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 4
• Explanation for those with interest

27
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 5
• Select sports have interest and ability in

28
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 6
• Experience and interest per sport

29
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 7
• Comments/feedback

30
Users Guide to Developing Student Interest
Surveys Under Title IX

• Screen 8
• Pop up summary and asks for contact information
  for possible participation

31
Title IX Data Collection Manual for Development
of the Users Guide

• National Institute of Statistical Sciences
• Also assists in developing users guide for
  assessing interest
• Would meet NCES standard

32
Title IX Data Collection Manual for Development
of the Users Guide

• Web based survey should be
• Simple
• Explicitly explain purpose
• Confidential
• Provide opportunity for no interest response
• Provide opportunity to filter response to certain
  sports
• Non-biased language in questions
• Allow for students to provide all experience,
  participation, interest in future participation
• Also goes through in detail how to analyze the
  data received

33
Title IX Private Actions

• Jackson v. Birmingham Bd. Of Educ.
• Facts
• Issue
• 11th Circuit
• Private causes of action under Title IX before
  this case
• Supreme Court
• Still left?

34
Title IX Private Actions

• Private Actions implied by Title IX
• To enforce its prohibition on intentional sex
  discrimination (Cannon)
• To seek monetary damages for intentional
  violations (Franklin)
• Over deliberate indifference to a teachers
  sexual harassment of a student (Gebser)
• Over sexual harassment of a student by another
  student (Davis)
• For retaliation against a person because that
  person has complained of sex discrimination
  (Jackson)

35
Sexual Harassment

• Revised Sexual Harassment Guidance (2000)
• Response in part to Supreme Court in Gebser and
  in Davis
• Basis for school liability clarified
• Basis is Title IX (from regulations) not Title
  VII agency law
• Clear that sexual harassment is prohibited sexual
  discrimination under the regulations
• Responsibility is triggered when violation occurs
  regardless of at what point officials learn of it

36
Sexual Harassment under Title IX

• Simpson v. University of Colorado
• Facts
• Claim
• Ruling
• What is rule court will follow to determine
  liability?
• What are the essential elements of the claim?
• Result?