ATIXA Happy Anniversary Title IX! Nancy Hogshead-Makar [email protected] Senior Director of Advocacy; Women's Sports Foundation Professor of Law; Florida Coastal School of Law Twitter: Hogshead3au Title IX: If an Educational Institution Receives Taxpayer Money, It Must Agree to Provide an Environment Free from Sex-Discrimination Five Areas of the Law: Different Strategies for Mandating Equality for Women in Athletics • United States Constitution Equal Protection Clause, 42 U.S.C. § 1983 • Public Accommodations Laws • Ted Stevens Olympic and Amateur Sports Act 36 U.S.C. § 220501, et seq. • Title IX of the Educational Amendments of 1972 20 U.S.C. Section 1681 et seq. • Equal Pay Act and Title VII Coaching, Administration and Leadership Title IX Covers… … every aspect of federally funded education programs. • • • • • • • • • • Access to Higher Education Athletics Career Education Education for Pregnant and Parenting Students Employment Learning Environment Math and Science Sexual Harassment Standardized Testing Technology Title IX and Equity in Athletics Participation Only Sport is Sex-Segregated Title IX Requires Compliance in Each of These Three Areas 1. Participation • Effective accommodation of interests & abilities 2. Athletic Financial Assistance • Financial aid: Female and male student-athletes must receive athletics scholarship dollars proportional to their participation. 3. Treatment of student-athletes • Equal treatment of female and male student-athletes in the areas known as the “laundry list” Title IX and Equity in Athletics Participation Participation: How Many Women’s Sports Teams Must a School Sponsor? 1979 Test: Schools Must meet one of these 3 prongs • Prong 1: Opportunities for males and females substantially proportionate to their respective enrollments. OR • Prong 2: Where one sex has been underrepresented, a history and continuing practice of program expansion responsive to the developing interests and abilities of that sex. OR • Prong 3: Where it can be demonstrated that the interests and abilities of the underrepresented sex have been fully and effectively accommodated by that present program. Title IX and Equity in Athletics Participation Boys’ High School Sports Participation 2010-11: 4,494,406 - The Highest in History High School Athletics Participation Survey Totals 1971-2010 5,000,000 4,500,000 4,000,000 3,000,000 2,500,000 Boys 2,000,000 Girls 1,500,000 1,000,000 500,000 0 1971 1973 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 Participants 3,500,000 Year http://www.nfhs.org/content.aspx?id=4208 Sponsorship Levels – Numbers of Participants NCAA Championship Sports Participation Women Men 300000 250000 200000 150000 100000 50000 0 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 (Provisional members included from 1995-96 to present.) Trends in Fast-growth Women’s Sports Women's CC Women's Soccer Softball Women's Indoor Track Women's Outdoor Track Women's Golf 1000 950 900 850 800 750 700 650 600 550 500 450 400 350 300 250 200 150 100 50 0 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 Title IX and Equity in Athletics Participation Trends in Fast-growth Men’s Sports Men's Soccer 1000 950 900 850 800 750 700 650 600 550 500 450 400 350 300 250 200 150 100 50 0 1981 1983 Men's Indoor Track 1985 1987 1989 Baseball 1991 1993 Men's CC 1995 1997 Men's Basketball 1999 2001 2003 Men's Lacrosse 2005 2007 Title IX and Equity in Athletics Participation “Interest” in Sport is Dictated by Opportunities Demand - H.S. v. NCAA Participation *2009-2010 National Federation High School Athletic Association (www.nfhs.org) athlete data **2009-2010 NCAA® Sports Sponsorship and Participation Rates Report NCAA Participation Rates • • • • • • Participants: 412,768 • 57.4% male; 42.6% female Teams: 17,682 • Net Change – Since the 1990-91 academic year, female teams up 2,268, male teams up 273 • Women’s teams up each of the last 25 yrs, while men’s teams have increased 7 of last 11 yrs • 9,380 women’s teams; 8,302 men’s teams Average number of student-athletes per school: 232 men & 168 women Greatest team growth for women – soccer, golf, indoor track, cross country, outdoor track and softball Greatest growth for men – indoor track, cross country, baseball, basketball, lacrosse and soccer. Greatest losses of teams for men: wrestling, gymnastics, swimming/diving, fencing. NCAA Sports Sponsorship and Participation Rates Website: http://www.ncaapublications.com/Uploads/PDF/ParticipationRates2009c2f40573-60aa-4a08-874d-1aff4192c5e4.pdf Title IX and Equity in Athletics Participation Scholarships • Total Dollars must be within +/- 1% of Student-Athlete Population Title IX and Equity in Athletics Participation Treatment of Athletes • The treatment and benefits the men and women receive must be comparable. • Let’s look at a few components of “Treatment” that are particularly relevant… Title IX and Equity in Athletics Participation Treatment of Athletes Equipment Scholarships Facilities Medical/ Training Services Scheduling Treatment Tutoring Coaching Support Services Publicity Travel & Daily Allowance Title IX and Equity in Athletics Participation Treatment of Athletes Treatment of Athletes Equipment Title IX and Equity in Athletics Participation Treatment of Athletes Publicity Title IX and Equity in Athletics Participation Treatment of Athletes Travel and Daily Allowance Title IX and Equity in Athletics Participation Treatment of Athletes Coaching Employment decisions, including those regarding coaches, are to be made in a non-discriminatory manner. Title IX and Equity in Athletics Participation Treatment of Athletes Facilities Under Title IX, both baseball and softball programs are entitled to comparable facilities. Title IX and Equity in Athletics Participation Athletic Department Budgets Recognizing that some sports are more expensive than others, there is NO equal funding requirement, however… When gender differences in money exist, it may result in problems with overall program fairness. e.g., uniforms may have different costs, but per-athlete travel costs are typically the same. Title IX and Equity in Athletics Participation Treatment of Athletes Support Services: Booster Clubs Title IX and Equity in Athletics Participation Avoid Misperceptions • Athletics participation is part of education. • Title IX does not require a school to drop or eliminate programs to meet compliance. • Avoid blaming women when a men’s teams’ request for resources cannot be accommodated. • Avoid creating programs with a few men’s sports viewed as important and the other sports “get what they get.” Title IX and Equity in Athletics Participation Avoid Misperceptions • Remember that females seek and deserve the same benefits from athletics that males do. This means breaking down gender stereotypes. • Use strategies to educate administrators and school boards when they create compliance barriers. • Booster clubs cannot create differences in athlete treatment. Use strategies to educate and manage booster clubs and parent groups about the law. • Be proactive and do the right thing for all student-athletes. Title IX and Equity in Athletics Participation Cases for Athletics • Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005) • Lisa Simpson; Anne Gilmore v. University of Colorado Boulder, et al., (No. 06-1184, No. 07-1182; 2007U.S. App. LEXIS 21478) U.S. Ct. of Appeals, 10th Cir., September 6, 2007 • Tiffany Williams v. Board of Regents of University of Georgia, (2006 U.S. App, LEXIS 5895) U.S. Ct. of Appeals, 11th Circuit, March 9, 2006 • Melissa Jennings v. University of N. Carolina, Chapel Hill, (2006 U.S. App. LEXIS 8869) U.S. Ct. of Appeals, 4th Circuit, April 11, 2006 • Fitzgerald ,et al., v. Barnstable School Committee et al., 129 U.S. 788 (January 21, 2009) Title IX and Equity in Athletics Participation Jackson • K-12 Case • 1999 - Jackson complains about inequity in sports programs’ funding (gender) • 2000 - He begins to get negative evaluations • 2001 – Dismissed as coach, retained as teacher • He sues under Title IX’s private right of action Title IX and Equity in Athletics Participation Jackson • Procedure: • District Court – School prevails • 11th Circuit – Upholds Dist. Ct. finding • Supreme Court – Overturns • Question: Does the private right of action for discrimination only apply to the direct victim of the discrimination, or does it also apply to a party who advocated on behalf of the victim? • Retaliation covered under Title IX Title IX and Equity in Athletics Participation Simpson • The Facts • 2 women (students) are raped by two recruits at a party. • NOTE: The assaults occurred off‐campus, on private property, and were in part committed by non‐students. (speaking to the scope of Title IX) • The Procedure • District Court – Finds for CU on summary judgment. • 10th Circuit Court of Appeals - Overturns Title IX and Equity in Athletics Participation Simpson 1. That CU had an “official policy” of showing high‐school football recruits a “good time” on their visits to the CU campus; 2. That the alleged assaults were caused by CU’s failure to provide adequate supervision and guidance to player‐hosts chosen to show the football recruits a “good time”; and 3. That the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference. (Another legal standard) Title IX and Equity in Athletics Participation Williams • The Facts • Rapist was a recruited basketball player who had prior criminal record re; sexual misconduct. • Victim went to a basketball player’s dorm to have consensual sex. Afterwards, victim raped by two students. • Victim withdraws from school after event. • The conduct process hearing occurs 1 year later with findings of not responsible. Title IX and Equity in Athletics Participation Williams • The District Court: • dismissed Williams’ Title IX and § 1983 claims, • denied her requests for declaratory and injunctive relief, and • denied in part and granted in part her motion to amend her complaint. • The Circuit Court of Appeals: • Reversed the district court's decisions to dismiss Williams' Title IX claims against UGA and UGAA; • reversed the district court’s decision to deny Williams' motion to amend her complaint; • affirmed the other holdings of the district court, including the dismissal of the §1983 claims. • The case was then settled out of court for an undisclosed amount. Title IX and Equity in Athletics Participation Williams • Actual Knowledge: • Rapist (Cole) actively recruited by coach, AD and Univ. Pres, knowing he had disciplinary problems and criminal problems, associated with SH. • Deliberate Indifference: • UGA waited 11 months, until after criminal investigation, which ct says unreasonable; UGA can act promptly. • Student-Athletes suggested that athletes get SH training. • Placed Cole in dorm w/o supervision • No discipline of Cole after rape. • No actions preventing future attacks. Title IX and Equity in Athletics Participation Jennings • The Facts • A female soccer player (and two other players) are sexually harassed by their head coach with repeated inquiries into players’ sexual activities and comments. • She reports the events to counsel and is told to “work it out” with the coach on her own • She and her family tell the Chancellor’s Assistant and the AD. • She is dismissed from the team. Title IX and Equity in Athletics Participation Jennings - Procedure • The district court: • dismissed Jennings Title IX and § 1983 claims, • Two other P’s settle: one for undisclosed 6 figures and the other for $70,000, • 3-judge panel circuit court of appeals: • Upholds the dismissal • En Banc • Overturns the Ct. of Appeals. Settlement: Plaintiff for $375K, fees, a required annual review of policy and annual training for the coach. Title IX and Equity in Athletics Participation Jennings - Significance 1. The case examines the power-relationship between coach and player 2. Plaintiff not the direct victim to most of the banter. 3. It determined that coach’s “locker room banter” was severe and pervasive 4. The “deliberate indifference” of the response (and other failings) Title IX and Equity in Athletics Participation What does Title IX and Athletics have to do with Sexual Harassment and Assault? • The purpose of gender equity in the athletic department is substantively to show men and women as equals. • Schools cannot tell male athletes to treat women as equals when they treat men as superiors. • If the Athletic Department does not accept women as equal to men, it cannot expect male athletes to do so. Title IX and Equity in Athletics Participation Questions?