Title IX Coordinator Training Online Course
Class Six: Athletics Equity and Applying the August 2020 Regulations
Marjory Fisher
Associate Vice President & Title IX Coordinator, Columbia University
Melinda Grier
Melinda Grier Consulting
Janet P. Judge
Education and Sports Law Group
Amy Wilson
Managing Director, Office of Inclusion NCAA

PLEASE NOTE: Training Course Only. Does Not Constitute Legal Advice.

Class Overview
Athletic Equity
Pay Equity
The Regs
Trans Athletes
NCAA Board of Governor’s Policy on Campus Sexual Violence

Role of the NCAA:

Support the membership as established by the NCAA Constitution

Four membership DEI committees
Committee to Promote Cultural Diversity and Equity
Committee on Women’s Athletics
Gender Equity Task Force
Minority Opportunities and Interests Committee

NCAA Inclusion Statement
“The NCAA will provide or enable programming and education . . . “
Annual Inclusion Forum

Overarching Principles:
Intercollegiate athletics programs should utilize their platform to serve as leaders on campus through engagement in and collaboration on efforts to support campus‐wide sexual and interpersonal violence prevention initiatives.
This includes involving student‐athletes in prevention efforts in meaningful ways across the campus, including encouraging use of leadership roles on campus to support such efforts.

Complying with NCAA Requirements: Policy and Attestation
All incoming, continuing and transfer student-athletes must complete an annual disclosure related to their conduct that resulted in discipline through a Title IX proceeding or in a criminal conviction for sexual, interpersonal or other acts of violence.
Transfer student-athletes must disclose whether a Title IX proceeding was incomplete at the time of transfer.
Failure to make a full and accurate disclosure could result in penalties, including loss of eligibility to participate in athletics as determined by the member institution.
Institutions must take reasonable steps to confirm whether incoming, continuing and transfer student-athletes have been disciplined through a Title IX proceeding or criminally convicted of sexual, interpersonal or other acts of violence.
In a manner consistent with federal and state law, all NCAA member institutions must share relevant discipline information and incomplete Title IX proceedings as a result of transfer with other member institutions when a student-athlete attempts to enroll in a new college or university. 6
An institution choosing to recruit an incoming student-athlete or accept a transfer student- athlete must have a written procedure that directs its staff to gather information that reasonably yields information from the former institution(s) to put the recruiting institutional leadership on notice that the student left the institution with an incomplete Title IX proceeding, was disciplined through a Title IX proceeding or has a criminal conviction for sexual, interpersonal or other acts of violence.
Failure to have it written and to gather information consistent with that procedure could result in penalties.

Attestation: Prez, AD, TIX
Requires annual attestations signed by the Director of Athletics, Title IX, and President (CEO).
BOG revisions to the Policy expanded its reach and attestation content, effective Spring 2022‐2023.
Policy and FAQ are on the NCAA Website
How are schools approaching this?
Discussions with Title IX, General Counsel, and others on campus.
Explore compliance position.
Check state law.
Consider intersection with the 2020 Regs around Permissive Dismissals and Confidentiality.

FAQs:
What type of education meets the expectations of the policy? The policy allows member schools to determine the types and manner of education provided. The NCAA Sexual Violence Prevention Tool Kit can assist member schools in this effort. The tool kit provides checklists for campus collaboration and educational resources created specifically for student‐athletes. Those resources include the online curriculum myPlaybook, which includes a course on sexual violence prevention.
What happens after the deadline? A list of schools that have and have not attested to the requirements of the policy will be presented in a report to the Board of Governors at their August meeting each year. Once approved, the lists will be published on ncaa.org.
Which athletics staff members are expected to complete the education requirement? While the policy does not provide a specific definition of staff for purposes of the educational prong and provides institutions the discretion to determine how far to extend their educational efforts (e.g. whether to include temporary workers, consultants or contractors), there is an expectation that all education will meet the requirements of local, state and federal law. All coaches including part‐time, volunteer and assistant coaches, as well as athletics administrators full‐time and temporary, and participating student‐athletes are expected to complete the education.
If I have additional questions about the policy where should I go? Questions may be sent to questions@ncaa.org. This inbox will only answer questions related to the policy and attestation process.

Training:
Annual Per NCAA Requirements
All Staff
Administration
Team Doctors/ATC
Support Staff
Coaches
GAs and Paid Student Workers
Student-Athletes
Cross Campus Engagement
Reporting Protocols
Complaint Avenues

In Person and Safe
Protocols for Outside Speakers
Importance of Face Time
Retention/Time of Day/Time of Year
Sport Examples
Consider Student Involvement/Investment
Culture of Sport/Supervisor
Confidential Resources
Support for Complainants and Respondents
Spotlight/Speed/Updates/Engagement
Head Coach Culture of Compliance

Title IX at 50
https://www.ncaa.org/sports/201 4/8/5/ncaa-inclusion-forum.aspx

PART 1: ATHLETIC EQUITY: EADA v Title IX

Athletic Equity Compliance: Three Separate and Independent Areas of Compliance

Participation

Financial Aid

Treatment

Equitable Participation: The Three Part Test

Substantial Proportionality

History and Ongoing		Full Accommodation Practice of Expansion	of Interest and Ability

Prong 1.
Male and female intercollegiate participation is provided in numbers substantially proportionate to their respective full‐time undergraduate enrollment, or

Prong 2.	Prong 3.
The institution has a history and	The interests and abilities of the continuing practice of program	members of the underrepresented expansion responsive to the developing	gender are fully and effectively interests and abilities of the members	accommodated by the present
of the underrepresented gender, or	program.

Dear Colleague Letter, Clarification of Intercollegiate Athletics Policy Guidance: the Three-Part Test, OFFICE FOR CIV. RIGHTS, U.S. DEP’T OF EDUC. (Jan. 16, 1996)) available at https://www2.ed.gov/about/offices/list/ocr/docs/clarific.html.

Sport Cuts that Involve the Underrepresented Sex: Typically Require Prong 1 Compliance Post Program Elimination

ENFORCEMENT —
OCR: Investigation. Letter of Findings. 302 Resolution Agreement. Referral to DOJ.
Court: Injunctive Relief. Class Actions. Attorneys Fees, No Administrative Exhaustion. No Cap on Damages.

OCR Substantial Proportionality
Amicus Brief (United States) in the Michigan State University (MSU) Case:

	OCR “has not specified a magic number at which substantial proportionality is achieved.” Equity In Athletics, Inc. v. Department of Educ., 639 F.3d 91, 110 (4th Cir. 2011), cert. denied 565 U.S. 1111 (2012); see also Biediger, 691 F.3d at 106 (explaining that the Second Circuit did not “understand the 1996 Clarification to create a statistical safe harbor at [2%] or any other percentage”).

What matters *** is whether the participation gap is large enough to sustain a viable team. As the 1996 Clarification explains, where “it is likely that a viable sport could be added,” an institution will not satisfy the first prong. (1996 Clarification).

Here, the district court failed to conduct the necessary fact-intensive inquiry to determine whether a participation gap of at least 15 athletes (if not more) could sustain a viable women’s team.

If [the school] can field a viable team of eight female tennis players, for example, it will not have satisfied [the substantial proportionality standard].

Prong 3: Accommodating Interest & Abilities

Does the current line up of sports effectively accommodate the athletic interests and abilities of the underrepresented sex?
What is the underrepresented sex? Is there:
unmet interest in a particular sport;
sufficient ability to sustain a team in the sport; and
a reasonable expectation of competition in the normal competitive area?

How much interest/ability/competition is enough? What is the relevant pool to be assessed?

Chart provided by the NCAA Office of Inclusion.

Final Participation Question:
Are there Equitable Levels of Competition?

OR

There exists a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex.

The competitive schedules for men’s and women’s teams, on a program‐wide basis, afford proportionately similar numbers of male and female athletes equivalently advanced competitive opportunities;

TITLE IX / TRANSATHLETE.COM / NCAA

NCAA Transgender Student- Athlete Participation
NCAA Summit on Gender Identity and Student‐Athlete Participation (Oct. 2020)
NCAA Policy Updated and Approved by Board of Governors in January 2022

2022 Update to NCAA Policy
Alignment with Olympic Movement to balance fairness, inclusion and safety.

January 2022: Board of Governors (BOG) adopts policy as recommended by the Committee on Competitive Safeguards and Medical Aspects of Sport (CSMAS).

Trans student‐athletes must continue to meet 2010 NCAA policy; and

Meet sport‐specific policies that are reviewed and approved by CSMAS, in each case to be informed by national governing body policy (or international federation policy or 2015 IOC policy).

Implemented over three phases.

Timeline of TSAP Policy Work

January

Update

February /
April
Phase One

April ‐
June
Phase Two

June

Committee on Competitive Safeguards and Medical Aspects of Sport (CSMAS) made recommendation.
Board of Governors updated policy.

CSMAS approves and publishes Phase One eligibility requirements for winter and spring championships.

CSMAS AdCom will develop Phase Two/Three policy recommendations.

Phase Three
CSMAS meets and will act on Phase Two/Three Policy requirements.

|Continued collaboration with CPCDE, USOPC and NGBs|

Areas of TSAP Policy Work

Documentation
Submission

Policy
Exclusions

Policy
Changes

Transition
Timelines

Athletics-Based Financial Aid/Scholarship Equity

“If any unexplained disparity in the scholarship budget for athletes of either gender is 1% or less for the entire budget for athletic scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate and nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than 1% is in violation of the “substantially proportionate” requirement.
Dear Colleague Letter – Bowling Green (July 23, 1998)

Non-Exhaustive Areas of Review	Men’s Program Overall	>/</=	Women’s Program Overall	
Equipment and Supplies (Apparel and Equipment)				
Scheduling
(Practice, Competition)				
Travel
(Mode, Housing, Food)				
Tutors/Academic Services (Personnel, Services)				
Coaches
(Quantity, Quality, Compensation*)				
Facilities/Spaces
(Practice, Competition, Locker Room)				
Medical
(Personnel, Experience, Availability)				
Housing & Dining (Home)				
Publicity/Communications (Sports Information & Marketing)				
Support Services (Administrative, Office, Support)				
Recruiting
(Financial & Other Support)				

Sources of Funding
It’s not a dollar-to-dollar analysis. Focus on goods and services. Where differences exist, OCR may focus on funding.

Private donations are institutional dollars and goods and services provided through private funding still count. In other words, those goods and services are included in the equity analysis.

See, e.g., Chalenor v. Univ. of North Dakota, 142 F. Supp. 2d 1154 (D.N.D. 2000)

Are the Disparities Significant? OCR v Judicial Review

See, e.g., Policy Interpretation, 44 Fed. Reg at 71,417 (1979).

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.

Disparity:
So Substantial as to Deny Equal Opportunity to Athletes of One Sex.

Disparities that are not Substantial. . .
Evidence to be Evaluated on a case by case basis.

Retaliation Prohibited
Retaliation is intentional discrimination on the basis of sex.

One who witnesses and complains about discrimination is protected from adverse action they encounter because of the complaints.

Recognition that coaches, teachers, administrators and students are in the best position to witness and alert schools

See, e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)

Compensation & Pay Equity
Title IX Program Review:
Coaches of women’s sports as compared to coaches of men’s sports, and usually only when coaching inequities are otherwise identified.
Title IX Employment/EPA:
Female coaches’ salaries compared to male coaches’ salaries.
Equal Pay for Equal Work
Non‐Discriminatory Justifications
OFCCP Audits/Title VII/State Law
Documenting & Auditing Compensation Systems/Approaches

The 2020 Title IX Regulations

Application (per the preamble):
“[T]he Department declines to address other topics . . . such as pregnancy, parenting, or athletics under Title IX, coverage of Title IX to fraternities and sororities, whether speech codes discriminate based on sex, funding intended to protect women or young adults on campus, funding cuts to girls’ programs by recipients, or forms of harassment other than sexual harassment.”
These complaints “may be referred” to the recipient’s Title IX Coordinator to review under the grievance procedures required by these Regulations.
“[T]he handling of non‐sexual harassment sex discrimination complaints brought by students and employees (for instance, complaints of sex‐based different treatment in athletics . . .) remains the same as under current regulations (i.e., recipients must have in place grievance procedures providing for prompt and equitable resolution of such complaints).”

See Title IX Regulations, 85 FR 30026 at https://www.federalregister.gov/documents/2020/05/19/2020‐10512/nondiscrimination‐on‐the‐basis‐of‐sex‐in‐education‐ programs‐or‐activities‐receiving‐federal

Reporting in Athletics
Title IX Coordinator in Athletics?
Officials with Authority to address Sexual Harassment?
Notice:	• Who else is required to report?
Confidential? By licensure?
Limited confidentiality? Why?

Athletics:
 Supportive Measures	
Can not punish, discipline, or unreasonably burden the respondent.
Denials must be documented.

 Emergency Removals	
A school may remove an individual from one or more education programs or activities in situations where the person poses an immediate threat to the physical health and safety of any individual before an investigation into sexual harassment allegations concludes (or where no grievance process is pending).
The school makes an individualized assessment that “an imminent threat to the physical health or safety of any person, arising from sexual harassment allegations, justifies removal,” and
The school provides an opportunity to challenge its determination.

An emergency removal cannot be imposed simply because an individual has been accused of sexual harassment.
The Regulations do not prohibit a school from addressing violations of a school’s code of conduct, policies, or laws, provided the conduct does not constitute Title IX sexual harassment or is not ‘‘arising from” Title IX misconduct allegations.

 Findings, Sanctions, & Appeals	

What are the Potential Roles of the Title IX Office Around Athletics?

Oversight for Title IX
Oversight for NCAA Policy
Policy Oversight, Training, and Attestation
Outside Title IX Speaker Review and Approval
Evaluation of Equity and Sexual Misconduct Complaints
Support and Emergency Removals
EADA Report Review
Equity Committee Membership

Infusing Equity: Consider a Supplemental Policy
Sample Language:
This policy supplements the overall school policy prohibiting sexual harassment, [provide link] which also applies to all members of the athletics department, both staff and student‐athletes.

School U. values the educational aspect of athletics and as such offers opportunities to compete in a [NAIA/NCAA] Division [I, II or III] varsity athletics program and is a member of the [name] conference[s], club level and intramural programs. School U. believes that its student‐athletes should be provided gender equitable participation opportunities, receive gender equitable athletic scholarships, and be afforded gender equitable treatment overall.
To report an athletics gender equity concern or to a request for varsity status for an athletic team not currently offered at the varsity level, please contact School U’s Title IX Coordinator, titleix@schoolu.edu, Office 405, University Hall, 8‐4490.
No Retaliation Policy:
Employees and/or students who ask questions, seek advice or report a suspected violation of this policy are protected by School U’s no retaliation policy. Retaliation will not be tolerated. If you suspect that you or another employee may be the victim of retaliation, you should contact TIX immediately. Those who violate the No Retaliation policy are subject to discipline.
IMPORTANT: Consider how complaints would be managed and findings would be implemented.

Questions?

Note
The content of this presentation is to provide news and information on legal issues and all content is provided for informational purposes only and should not be considered legal advice.

The transmission of information in this presentation does not establish an attorney‐ client relationship with the recipient. The recipient should not act on the information contained in this presentation without first consulting retained legal counsel.

If you desire legal advice for a particular situation, you should consult an attorney.