Katie LeGrand

Agenda  History of Title IX  What is Title IX?  Athletics High School Collegiate  Relevant Case Law  Current State

What is the law?  Constitution 14 th Amendment – Equal Protection ○ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  Federal Law 42 USC $ 1981 – Equal Protection  Equity in Athletics Disclosure Act (EADA)

History  1972 Congress passed Title IX as part of the Education Amendments 20 USC $ 1681 ○ “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”  Education Amendment Act of 1974 prepared by HEW Instructed how to implement Title IX compliance

History  1974 Amendment “No person shall, on the basis of sex, be excluded from participation in, 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.”

History  1974 Amendment Selection of sports & levels of competition Equipment & supplies Scheduling of games & practice times Travel & per diem allowance Opportunity for coaching and tutoring Coaches salaries Locker rooms, practice & competition sites Medical & training services Housing & dining services Publicity

History  1979 OCR Policy Interpretation Three Prong Test ○ Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments ○ Where 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 interest and abilities of the members of that sex ○ Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as cited 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

Grove City College Vs. Bell (1984)  Question: Does Title IX apply only to programs that receive direct federal funding within institutions or to programs that exist within institutions that receive federal funds?  At stake – the vulnerability of athletic programs to comply with Title IX.  Who won?

History  1984 – Grove City decision Enforcement ceased  1988 – Civil Rights Restoration Act Reiterates that Title IX should be interpreted through an institution wide, rather then a program specific approach

Not Just Athletics  Equal treatment  Failure to supervise / Peer harassment  Sexual Harassment / Assault  Employment Practices Discrimination Retaliation Wrongful termination  Effective Accommodation  Program Elimination  Roster Management  History of Expansion  Treatment Issues Case #1

History  Franklin v. Gwinnett Supreme Court decision  1996 – OCR – Clarification of Intercollegiate Athletics Policy Guidance Must count all athletes receiving benefits Can choose to cap or eliminate opportunities for the overrepresented sex Must be responsive to “female” interest in sports & demonstrate responses to the needs and interests

Cohen V. Brown University  BU dropped 4 varsity sports Men’s golf & water polo Women’s volleyball & gymnastics  The female students sued in a class action claiming discrimination  The Supreme Court denied the case  On appeal, the district court found that BU unlawfully discriminated against the women’s teams

Not Just Athletics  1997 – OCR – Sexual Harassment Guidance Quid Pro Quo Hostile Environment  1998 – Gebser v. Lago Vista SD Student can sue for monetary damages  1999 –Davis v. Monroe County BOE Students have a private right of action when the harassment is very severe

History  2002 – Title IX at 30 years old  2003 – “Further Clarification” Continue to use 3-prong test Title IX does not require cutting or reducing teams (disfavored) Aggressively enforce / Work with schools Private donations must be included OCR enforcement will be uniform

National Wrestling Coaches Association v. Dept. of Education  NWCA sought to have the department’s Title IX enforcement framework invalidated.  Close link between the commissioned study and this case  Supreme Court denied hearing the case  District of Columbia Circuit Court held for the DOE

Jackson v. Birmingham BOE  Roderick Jackson filed a compliant in court Fired in retaliation Complained about inequitable treatment of his girls team – funding and access to facilities and equipment  Supreme Court sides for Jackson Title IX does provide private right of action Retaliation is intentional Protects those who are not direct victims

History  2005 – OCR – “Additional Clarification” Focused on 3 rd prong  2010 – OCR – “Dear Colleague Letter” Athletics ○ Withdrew the 2005 Clarification “Dear Colleague Letter” Sexual Harassment ○ Guidance for sexual harassment, bullying, and sexual violence  2011 – OCR – “Dear Colleague Letter” Sexual Harassment Case #2

Jennings v. North Carolina 2007  Student at institution receiving federal funds  Subjected to harassment based on sex  Sufficient to create a hostile environment  There is a basis for imputing liability to the institution Who was the coach?

Current State of Title IX  Biediger v. Quinnipiac University 2010 Cut three sports – WVB, MGO, MTO Added Competitive Cheerleading Volleyball students sued  Outcome Granted Preliminary Injunction July 2010 – Found not in Compliance with Title IX Volleyball was reinstated

40 Years of Title IX  ‘10-’11 there were 444,077 athletes 57 % were male Average NCAA institution has 414 S/A’s ○ 236 males ○ 178 females  Since ‘88-’89 Net gain of 510 men’s teams 2,703 women’s teams  “81-’82 – 74,239 women athletes  Today – 190,953 women athletes

Questions?