Chapter 8 Equity Issues Beyond jusridiction and enforcement of title IX

Title IX Title IX requires that when programs as a whole are reviewed (not on a sport versus sport basis), equity exists. To aid in the review 13 program areas are used Title IX requires that when programs as a whole are reviewed (not on a sport versus sport basis), equity exists. To aid in the review 13 program areas are used

Title IX 1. Athletic financial assistance 2. Accomodation of interests and abilities 3. Equipment and supplies 4. Scheduling games and practices 5. Travel and per diem allowences 6. Tutors 7. Coaching quality and availability 8. Locker rooms, gyms, fields 9. Medical and training services 10. Housing and dining 11. Publicity 12. Support services 13. Recruitment

Title IX Disparities between the sexes in any of the 13 program areas may be evidence of title IX complience issues Disparities between the sexes in any of the 13 program areas may be evidence of title IX complience issues –This does not mean disparity between men’s and women’s teams of the same sport –The correct way to look at it is a program wide anaylsis  This means the same percentage (based on the ratio of participants of each sex in the athletic program) of males and females need to be receiving similar benefits

Title IX Does a higher percentage of one genders athletes enjoy Does a higher percentage of one genders athletes enjoy 1. Exclusive locker room space 2. Full time coaches 3. Experienced coaches 4. Multiple assistant coaches 5. Higher per diem allowances 6. Trophy cases in high traffic, prestigious loactions 7. Certified athletic trainers rather than student athletic trainers at games 8. Media guides of greater length and/or quality 9. Air transportation or cheuffered coach transportation 10. New high tech facilities 11. Acess to secretarial help 12. Recruiting expenses paid in advance 13. Exclusive weight room acess 14. Prime competitive or practice times 15. Lighted fields

Benefit Versus Dollars Equitable treatment is judged on the basis of benefit received rather than the dollars that are spent Equitable treatment is judged on the basis of benefit received rather than the dollars that are spent –Equity and title IX require that the male football player and the female track athlete receive equal benefits regarding uniforms and equipment, but not equal dollars spent –Only financial aid involves equity of dollars

Participation Opportunities A large area of title issues comes from the requirement to provide equal access to opportunity through “accomodating the intrests and abilities” of the historically underepresented sex A large area of title issues comes from the requirement to provide equal access to opportunity through “accomodating the intrests and abilities” of the historically underepresented sex The interpretations provide a three- pronged test to determine complience The interpretations provide a three- pronged test to determine complience –A institution only needs to meet one of the three prongs in order to comply with the interest and abilities requirement

1. The intercollegiate or interscholactic level of participation opportunities for male and female students is provided in numbers substantially proportionate to their respective enrollments 2. The institution can show a history and continuing practice of program expansion that is demonstably responsive to the developing interests and abilities of the underepresented sex 3. The institution can show that the intrests and abilities of the members of the historically underrepresented sex have been fully and effectivly accomodated by the present program

Participation opportunities Cohen v. Brown University 1997 was a hard fought case involving the first prong Cohen v. Brown University 1997 was a hard fought case involving the first prong Most people who have moved toward title IX complience have met prong 2 or 3 Most people who have moved toward title IX complience have met prong 2 or 3 –The office of civil rights (OCR) has made it clear that schools can choose which prong they wish to meet. –If the school chooses to meet the first prong they are given the bonus of safe harbor meaning that if they meet this the OCR will not look any farther to see if the institution is actually providing equal access The supreme court has decided not look at the cases that deal with the propotionality prong and let the rulings of the lower courts stand The supreme court has decided not look at the cases that deal with the propotionality prong and let the rulings of the lower courts stand

Participation opportunities One of the other prongs to measure compliance is to meet the interests and abilities of the underrepresented sex One of the other prongs to measure compliance is to meet the interests and abilities of the underrepresented sex –This can be done through surveys or asking the student population –Lets say we have a club level women's lacrosse program that has asked to be made varsity does this meet title IX to just have a women's club team  The answer is no the school has to meet the interests and abilities so because they are good enough to bee varsity they have to be varsity  This also does not mean the school will be compliant if they add another women’s sport instead. They are still not meet the interests of the female athletes  This also doesn’t mean that a men’s sport has to be added to keep the numbers even because males are not the under represented sex

Participation opportunities Title IX protects employees as well as students Title IX protects employees as well as students –In the court case Jackson v Birmingham jackson complained to the school board about the inequitable treatment of female student athletes –The school board fired him as a result and the board argued that employees have no private right of action under title IX limiting jackson to the valueless OCR complaint alternative –The supreme court disagreed and made it so that people who spoke up against title IX issues had private protection

Historically under represented sex Title IX was designed to protect the historically under represented sex Title IX was designed to protect the historically under represented sex Even after some men’s teams are cut there are still not enough women’s teams to meet the proportionality prong Even after some men’s teams are cut there are still not enough women’s teams to meet the proportionality prong Smaller rosters sizes have been a way to meet title IX and can be frustrating for the team Smaller rosters sizes have been a way to meet title IX and can be frustrating for the team –Even though not recommended this a legal way to meet title IX compliance

Revenue and non revenue sports Title IX does not rank the importance of sports Title IX does not rank the importance of sports –A school cannot explain gender based imbalance in any of the 13 areas by saying the sport has those benefits due to revenue –The designation of revenue sport is irrelevant in relation to titleIX

Boosters and Title IX When there are gifts from boosters the institution cannot evade its legal obligation to provide equal benefits to male and female athletes When there are gifts from boosters the institution cannot evade its legal obligation to provide equal benefits to male and female athletes If a men’s team receives a gift the athletic department must find a way to provide an equal benefit to the women’s program If a men’s team receives a gift the athletic department must find a way to provide an equal benefit to the women’s program –If there is no way to provide that equity the school must either teach the donor about giving to the whole athletics department or refuse the gift

Co-Ed participation, the right to try out, and contact sports Participation on teams is most often determined by a competitive format Participation on teams is most often determined by a competitive format –Where selection for a team is based upon competitive skill or the activity involved is a contact sport single sex teams may be formed The issues of boys playing on a field hockey team has come up, but title IX does not protect men so this is a non issue The issues of boys playing on a field hockey team has come up, but title IX does not protect men so this is a non issue Physical education classes are also required for equality under title IX Physical education classes are also required for equality under title IX –All physical education classes must be coeducational except those that are defined as contact sports (wrestling, boxing, rugby, ice hockey, football, and basketball) –They may be conducted as single sex but do not have to be Scheduling class conflicts is also against ht elaw Scheduling class conflicts is also against ht elaw –For example if the school offers dance class and football class at the same time the idea is to try and get the females to be in dance and form a de facto segregation

Sexual Harassment Title Ix is not the only law to protect against sexual harassment Title Ix is not the only law to protect against sexual harassment –Title VII is the most prominent and the 14 th amendment –Title VII only covers the workplace, and the 14 th by a state actor and title IX is education Title VII is the only one with a definition of sexual harassment Title VII is the only one with a definition of sexual harassment –Quid pro quo is the more overt and recognizable harassment and least subjective of the two  When someone offers a promotion for sexual favors, or an athlete is offered a plaxe on the team both the worker and the athlete could use title IX to combat the sexual harassment –Hostile environment  This is when a supervisor fondles a co worker or the coworkers behavior in the workplace includes a daily occurrence of crude sex based jokes  This is when sexual harassment makes the environment hostile